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State of South Carolina v. United States

United States District Court, District of Columbia

October 10, 2012

State of SOUTH CAROLINA, Plaintiff,
v.
UNITED STATES of America, and Eric Himpton Holder, Jr. in his official capacity as Attorney General of the United States, Defendants, and James Dubose, et al., Defendant-Intervenors.

Page 31

Howard Christopher Bartolomucci, Paul Clement, Brian J. Field, David Zachary Hudson, Jeffrey M. Harris, Pro Hac, Vice, Michael H. McGinley, Bancroft PLLC, Washington, DC, H. Christopher Coates, Charleston, SC, Stephen V. Potenza, Bancroft PLLC, New York, NY, for Plaintiff.

Anna M. Baldwin, Bradley E. Heard, Bryan L. Sells, Catherine Meza, Richard Alan Dellheim, Erin Marie Velandy, Matthew Colangelo, U.S. Department of Justice, Washington, DC, for Defendants.

Arthur B. Spitzer, American Civil Liberties Union of the Nation's Capital, Washington, DC, Joseph Gerald Hebert, Alexandria, VA, Theodore A.B. McCombs, Sullivan & Cromwell LLP, New York, NY, for Defendant-Intervenors.

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Before KAVANAUGH, Circuit Judge; KOLLAR-KOTELLY, District Judge; and BATES, District Judge.

MEMORANDUM OPINION

KAVANAUGH, Circuit Judge:

This case concerns South Carolina's new voter ID law, Act R54. The question presented is whether tat new state law is lawful under the federal Voting Rights Act. As relevant here, Section 5 of the Voting Rights Act bars state laws that have either the purpose or the effect " of denying or abridging the right to vote on account of race or color." 42 U.S.C. § 1973c(a). The effects prong of Section 5 of the Voting Rights Act measures a State's proposed new voting law against the benchmark of the State's pre-existing law.

For several decades, South Carolina has had a voter ID law. Under the version of the law in effect since 1988, a voter must show a South Carolina driver's license, DMV photo ID card, or non-photo voter registration card in order to vote. Under that pre-existing South Carolina law, a voter with a non-photo voter registration card need not show a photo ID in order to vote. As we will explain, South Carolina's new law, Act R54, likewise does not require a photo ID to vote. Rather, under the expansive " reasonable impediment" provision in Act R54— as authoritatively interpreted by the responsible South Carolina officials, an interpretation on which we base our decision today— voters with the non-photo voter registration card that sufficed to vote under preexisting law may still vote without a photo ID. Those voters simply must sign an affidavit at the polling place and list the reason that they have not obtained a photo ID.

In addition, Act R54 expands the kinds of photo IDs that may be used to vote— adding passports, military IDs, and new photo voter registration cards to the driver's licenses and DMV photo ID cards already permitted by pre-existing law. Moreover, Act R54 minimizes the burden of obtaining a qualifying photo ID as compared to pre-existing law. The new law creates a new type of photo ID— namely, photo voter registration cards— which may be obtained for free at each county's elections office. Also, under Act R54, DMV photo ID cards may be obtained at each county's DMV office for free; those cards cost $5 under pre-existing law.

In short, Act R54 allows citizens with non-photo voter registration cards to still vote without a photo ID so long as they state the reason for not having obtained one; it 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. Therefore, we conclude that the new South Carolina law does not have a discriminatory retrogressive effect, as compared to the benchmark of South Carolina's pre-existing law. We also conclude that Act R54 was not enacted for a discriminatory purpose. Act R54 as interpreted thus satisfies Section 5 of the Voting Rights Act, and we grant pre-clearance for South Carolina to implement Act R54 for future elections beginning with any elections in 2013. As explained below, however, given the short time left before the 2012 elections, and given the numerous steps necessary to properly implement the law— particularly the new " reasonable impediment" provision— and ensure that the law would not have discriminatory retrogressive effects on African-American voters in 2012, we do not grant pre-clearance for the 2012 elections.

I. Legal and Factual Background

A. The Voting Rights Act and Act R54

The Voting Rights Act of 1965 is among the most significant and effective pieces of

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legislation in American history. Its simple and direct legal prohibition of racial discrimination in voting laws and practices has dramatically improved the Nation, and brought America closer to fulfilling the promise of equality espoused in the Declaration of Independence and the Fourteenth and Fifteenth Amendments to the Constitution.

Section 5 of the Voting Rights Act requires certain States and political subdivisions— including South Carolina— to obtain pre-clearance of proposed changes in state or local voting laws. Pre-clearance must be obtained from the U.S. Attorney General or from a three judge court of the U.S. District Court for the District of Columbia. 42 U.S.C. § 1973c(a). The Section 5 pre-clearance requirement seeks to ensure that the proposed changes " neither ha[ve] the purpose nor will have the effect of denying or abridging the right to vote on account of race or color" or membership in a language minority group. Id. The effects prong of Section 5 examines the effects of a State's proposed new law on minority voters, as compared to the benchmark of the State's pre-existing law.

Pursuant to the Voting Rights Act, South Carolina here seeks pre-clearance of Act R54, South Carolina's new voter ID law.[1]

South Carolina's pre-existing voter ID law has been in place since 1988. That law has required voters to present one of three forms of ID at the polling place: (i) a South Carolina driver's license, (ii) a South Carolina DMV photo ID card, or (iii) the non-photo voter registration card given to all registered voters in South Carolina.

On May 11, 2011, the South Carolina General Assembly passed Act R54, and Governor Nikki Haley then signed it into law. The stated purpose of the law is " to confirm the person presenting himself to vote is the elector on the poll list." Act R54, § 5. The law adds three forms of qualifying photo ID to the list of photo IDs accepted under pre-existing law. The full list of qualifying photo IDs now includes not only (i) a South Carolina driver's license and (ii) a South Carolina DMV photo ID card, but also (iii) a passport, (iv) a federal military photo ID, and (v) a new free photo voter registration card.[2]

Under Section 4 of Act R54, new photo voter registration cards may be obtained for free in person from county elections offices.[3] There is at least one elections office in each of South Carolina's 46 counties. The photo voter registration card may be obtained by presenting the citizen's current non-photo voter registration card. Or a citizen who is already registered

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to vote may verbally confirm his or her date of birth and the last four digits of his or her Social Security number. Or, consistent with the Help America Vote Act, Pub.L. No. 107-252 (2002) (codified at 42 U.S.C. §§ 15301-15545), a citizen may present any photo ID, utility bill, bank statement, government check, paycheck, or other government document that shows his or her name and address.

Under Section 6 of Act R54, DMV photo ID cards may now be acquired for free from county DMV offices. Under pre-existing law, those cards cost $5. There is at least one DMV office in all 46 counties, and more than one DMV office in some of the more populated counties. To obtain the free DMV photo ID card, the voter must go to a DMV office and present proof of South Carolina residency, U.S. citizenship, and Social Security number. Such proof typically requires a voter to present, among other things, either a birth certificate or a passport. The documents required to obtain a DMV photo ID card are not changed from pre-existing law.

Importantly for our purposes, Act R54 still permits citizens to use their non-photo voter registration cards to vote, as they could under pre-existing South Carolina law. Act R54 provides that if a voter has " a reasonable impediment that prevents the elector from obtaining photographic identification," the voter may complete an affidavit at the polling place attesting to his or her identity. Act R54, § 5. To confirm the voter's identity to the notary (or, in the case of a notary's unavailability, to the poll manager) who witnesses the affidavit, the voter may show his or her non-photo voter registration card. The affidavit also must list the voter's reason for not obtaining a photo ID. Together with the affidavit, the voter may cast a provisional ballot, which the county board " shall find" valid unless it has " grounds to believe the affidavit is false." Id. So long as the voter does not lie about his or her identity or lie about the reason he or she has not obtained a photo ID, the reason that the voter gives must be accepted by the county board, and the ballot must be counted. As we will explain further below, state and county officials may not review the reasonableness of the voter's explanation (and, furthermore, may review the explanation for falsity only if someone challenges the ballot). Therefore, all voters in South Carolina who previously voted with (or want to vote with) the non-photo voter registration card may still do so, as long as they state the reason that they have not obtained a photo ID.[4]

In order to educate voters and election officials about the new law's effects, Section 7 of Act R54 requires the South Carolina State Election Commission to " establish an aggressive voter education program." Among other things, the Commission must post information at county elections offices, train poll managers and poll workers, coordinate with local and service organizations, advertise the changes in South Carolina newspapers, and disseminate information through local media outlets. The law also requires " documentation describing the changes in this legislation to be disseminated by poll managers and poll workers" on election day. Act R54, § 7(3). In advance of the elections, the Commission must also notify each registered voter who does not currently have a driver's license or DMV photo ID card of the law's effects and of the availability of free photo IDs.

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Section 8 of the Act requires the Commission to distribute a list of registered voters without a driver's license or DMV photo ID card to third parties upon request. That provision is designed to assist outside groups that want to help voters obtain the necessary IDs and educate voters about the law.

B. Act R54's Reasonable Impediment Provision

At first blush, one might have thought South Carolina had enacted a very strict photo ID law. 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. Act R54, as it has been authoritatively construed by South Carolina officials, does not have the effects that some expected and some feared. As we have outlined, Act R54 has several important components: It allows three additional forms of qualifying photo IDs; it makes it far easier to obtain qualifying photo IDs than it was under pre-existing law; and it contains a significant reasonable impediment provision that allows registered voters with non-photo voter registration cards to vote without photo IDs, so long as they fill out an affidavit at the polling place and indicate the reason that they have not obtained an R54-listed photo ID.

Of course, the initial rhetoric surrounding this case arose in part because of a key unanswered question at the time of Act R54's enactment: namely, how would the reasonable impediment provision be interpreted and enforced? Would it be interpreted restrictively and force voters— some of whom are poor and lack transportation— to try to obtain new photo IDs? Or would it be interpreted broadly and allow voters to continue to vote with their non-photo voter registration cards so long as they state the reason for not having obtained a photo ID? 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. For example, Speaker of the House Robert Harrell testified that the legislature intended the reasonable impediment provision to be construed " very, very broadly." Trial Tr. 64:14-15 (Aug. 28, 2012); see also Trial Tr. 63:20-21 (Aug. 27, 2012) (Senator Campsen) (reasonable impediment provision " is very broad" ). But those directional signals still left ultimate interpretation to the relevant administrative agencies in the South Carolina Government.

As this litigation unfolded, the responsible South Carolina officials determined, often in real time, how they would apply the broadly worded reasonable impediment provision. Two officials play critical and complementary roles in the interpretation and implementation of Act R54: the Attorney General of South Carolina and the Executive Director of the South Carolina State Election Commission. The Attorney General is the chief legal officer of the State, and the Executive Director of the State Election Commission has principal responsibility for implementing Act R54's requirements. In 2011, the Attorney General of South Carolina officially interpreted the reasonable impediment provision and listed a variety of situations that, as a matter of law, would qualify as a reasonable impediment. And at the close of trial, the South Carolina Attorney General submitted an additional memorandum to the Court addressing several issues about the reasonable impediment provision. The Court also heard testimony from the Executive Director of the State Election Commission, Marci Andino. Ms. Andino testified that she follows the interpretation of South Carolina law offered by the Attorney General of South Carolina. Ms. Andino also furnished specific assurances about

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how the reasonable impediment provision would be implemented. The evidence shows that county boards and election officials, who will be implementing the law on the ground, adhere to guidance from the central State Election Commission.

The Attorney General of South Carolina and Ms. Andino have emphasized that a driving principle both at the polling place and in South Carolina state law more generally is erring in favor of the voter. See S.C. Responses to the Court's Questions, Aug. 31, 2012, at 8 (" Ms. Andino is also correct to resolve conflicting legal requirements in favor of the voter." ); Op. S.C. Att'y Gen., Aug. 16, 2011, 2011 WL 3918168, at *4 (reasonable impediment provision must be interpreted in light of " fundamental nature of the right to vote" ); Op. S.C. Att'y Gen., Oct. 11, 1996, 1996 WL 679459, at *2 (" [W]hen there is any doubt as to how a statute is to be interpreted and how that interpretation is to be applied in a given instance, it is the policy of this Office to construe such doubt in favor of the people's right to vote." ).

Most importantly for present purposes, the interpretation of South Carolina law rendered by the responsible South Carolina officials has established that Act R54 will continue to permit voting by registered voters who have the non-photo voter registration card, so long as the voter states the reason for not having obtained a photo ID. As a result, Act R54 will deny no voters the ability to vote and have their votes counted if they have the non-photo voter registration card that could be used to vote under pre-existing South Carolina law.

As the responsible South Carolina officials have confirmed repeatedly, any reason asserted by the voter on the reasonable impediment affidavit for not having obtained a photo ID must be accepted— and his or her provisional ballot counted— unless the affidavit is " false." Thus, the reasonableness of the listed impediment is to be determined by the individual voter, not by a poll manager or county board. The reasonable impediment affidavit simply helps to ensure that voters with non-photo voter registration cards are who they say they are. The purpose of this provision, by its plain text and as it has been administratively interpreted, is not to second-guess the reasons that those voters have not yet obtained photo IDs. So long as the reason given by the voter is not a lie, an individual voter may express any one of the many conceivable reasons why he or she has not obtained a photo ID.

As the South Carolina Attorney General determined, a voter may assert, for example, that he or she lacks a birth certificate, or has a disability, or does not have a car. (The example of voters who don't have a car is especially important because one of the main concerns during the legislative debates was whether citizens without cars would be required to obtain photo IDs. They are not.) So too, a voter may assert any of the myriad other reasons for not procuring one of the required photo IDs, such as: I had to work, I was unemployed and looking for work, I didn't have transportation to the county office, I didn't have enough money to make the trip, I was taking care of my children, I was helping my family, I was busy with my charitable work, and so on. Any reason that the voter subjectively deems reasonable will suffice, so long as it is not false.[5] If the

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affidavit is challenged before the county board, the county board may not second-guess the reasonableness of the asserted reason, only its truthfulness. As the Attorney General of South Carolina put it, " unless there is reason to believe the affidavit contains falsehoods, the vote will ultimately be deemed valid." Op. S.C. Att'y Gen., Aug. 16, 2011, 2011 WL 3918168, at *4.

That extremely broad interpretation of the reasonable impediment provision will make it far easier than some might have expected or feared for South Carolina voters with a non-photo voter registration card (and without photo ID) to vote as they could under pre-existing law. Yet the Department of Justice and the intervenors have oddly resisted that expansive interpretation of Act R54. They have insisted that the broad interpretation of the reasonable impediment provision advanced by the South Carolina Attorney General and State Election Commission contravenes the statutory language. But interpreting the law as the responsible South Carolina officials have done— to allow the voter's subjective interpretation of reasonable impediment to control— is perfectly consistent with the text of Act R54. Recall that under Act R54, a voter may cast a provisional ballot if he or she has " a reasonable impediment that prevents the elector from obtaining photographic identification." Act R54, § 5. The county board must find that provisional ballot valid " unless the board has grounds to believe the affidavit is false. " Id. (emphasis added). Thus, the plain text of Act R54 provides for county-board review only of the affidavit's factual falsity, not of the listed impediment's reasonableness or unreasonableness. It is a sound reading of Act R54— indeed, it could well be the best reading of the statutory text— to leave the determination of reasonableness up to the voter. Moreover, we of course owe substantial deference to a State's interpretation of state law. Cf. Mullaney v. Wilbur, 421 U.S. 684, 690-91, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). We thus accept and adopt, as a condition of pre-clearance, the expansive interpretation offered by the South Carolina Attorney General and the South Carolina State Election Commission. And as we will explain, that understanding is central to our resolution of the case. Cf. Florida v. United States, 885 F.Supp.2d 299, 345, 2012 WL 3538298, at *37 (D.D.C.2012) (" Accordingly, our grant of preclearance to the inter-county mover changes is based on our express understanding that Florida will follow its laws as written and will abide by the representations it has made to this court." ) (citations omitted).

What this means is that registered voters who could vote under pre-existing South Carolina law with a non-photo voter registration card— and who have not secured one of the qualifying photo IDs— will still be able to vote with the exact same non-photo voter registration card. The only additional requirement is that those ...


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