Right-Wing Media Hails South Carolina Voter ID Decision, Ignores Court's Concerns About Racial Discrimination

Wall Street Journal editorial asserted the recent federal court decision allowing South Carolina's voter ID law to go into effect in 2013 proved that claims of racial discrimination in voter ID laws are “specious.” But the Journal - and other conservative media echoing this claim - fail to note that the court was required to hear the case because of uncontroverted evidence that the voter ID law was initially racially discriminatory. In fact, the South Carolina law was only approved because state election officials have sworn to implement it without racial discrimination.

In Response To Court's Decision On South Carolina Voter ID, Conservative Media Claim “Voter ID Validation.”

WSJ: The Decision “Underscores The Point” That “Claims Of Racial Discrimination Are Specious.” In combination with the recent decision that suspended the Pennsylvania Voter ID law, the WSJ wrote that "critics go zero for two" in the fight over voter ID legislation:

Under Section 5 of the 1965 Voting Rights Act, states like South Carolina are required to get clearance for any laws that could be seen as “denying or abridging the right to vote on account of race or color.” The Justice Department rejected the law as part of Attorney General Eric Holder's incendiary charge that such laws amount to the return of “poll taxes,” and South Carolina sued.


Mr. Holder and other critics have used voter ID laws as a political foil to charge racism and gin up black voter turnout this year. The decision last week by Pennsylvania Commonwealth Court to block the Keystone State's law only for this election was a big hint that the claims of racial discrimination are specious. The South Carolina decision underscores the point.

Von Spakovsky: “The Justice Department Abuses Its Power Under Section 5” Of The Voting Rights Act. National Review Online contributor Hans Von Spakovsky agreed that the South Carolina law was never racially discriminatory and alleged DOJ's claims to the contrary were "frivolous":

Of course, the reason there is not now enough time to implement the law before the election is because of the delay caused by the Justice Department's unjustified objection. There was no basis for its claim that the law was discriminatory. In fact, sources within DOJ reportedly told former DOJ lawyer Christian Adams that career lawyers in the Voting Section of the Civil Rights Division recommended preclearance of the law because there was no evidence it was racially discriminatory. They were overruled by an Obama political appointee, Tom Perez, the assistant attorney general for civil rights.


The South Carolina case was a complete waste of time and resources by DOJ and yet another sign of how ideology, not sound legal analysis, drives decision-making at Eric Holder's Justice Department. It also shows how the Justice Department abuses its power under Section 5. Another reason why the Supreme Court should agree to hear the appeal in the Texas voter-ID case and find Section 5 to be unconstitutional.

But The Court Explicitly Agreed With DOJ's Concerns That The Law As Enacted Could Be Racially Discriminatory, And Warned It Would Be Blocked If This Occurred

Judge Brett Kavanaugh: The Law's Exemption For Those Without Photo ID Must Be Interpreted “Extremely Broad[ly].” For the disproportionately African-American segment of South Carolina voters without requisite photo ID, the law included an exemption reflecting lawmakers' awareness of the potentially discriminatory effect. But the statutory exemption was not even sufficient for conservative Judge Kavanaugh, who dedicated pages of the opinion to detailed implementation instructions for election officials, in addition to reminding them of their additional anti-discrimination promises as the litigation unfolded:

[T]he evidence reveals an undisputed racial disparity of at least several percentage points: About 96% of whites and about 92-94% of African-Americans currently have one of the R54-listed photo IDs.  That racial disparity, combined with the burdens of time and cost of transportation inherent in obtaining a new photo ID card, might have posed a problem for South Carolina's law under the strict effects test of Section 5 of the Voting Rights Act absent the reasonable impediment provision.


South Carolina has repeatedly informed the Court that the purpose of Act R54 is to make sure that the voter is who he or she says, and not to improperly deter voters with non-photo voter registration cards from voting.  In order to achieve South Carolina's stated purposes and to ensure that the reasonable impediment process does not disproportionately and materially burden minority voters in violation of the Voting Rights Act, South Carolina agrees that the process of filling out the form must not become a trap for the unwary, or a tool for intimidation or disenfranchisement of qualified voters.


In closing, we underscore that all South Carolina state, county, and local officials must comply with Act R54 as it has been interpreted by the responsible state officials and as it has been described and adopted in this opinion.  Any change in the law as so interpreted would be unlawful, without pre-clearance from the Attorney General of the United States or from this Court.  We are fully aware, moreover, that what looks good on paper may fall apart in practice. We expect and anticipate that South Carolina state, county, and local officials will endeavor to prevent such slippage.

Judge John Bates: “To State The Obvious,” The South Carolina Voter ID Law “As Now Pre-Cleared Is Not The [Law] Enacted In May 2011.” In addition to joining Kavanaugh's opinion for the court, Judge Bates wrote a separate opinion pointing out that South Carolina officials only became subject to Kavanaugh's “extremely broad” interpretation of the photo ID exemption after DOJ blocked the law, due to its racially discriminatory effect as originally written:

[O]ne cannot doubt the vital function that Section 5 of the Voting Rights Act has played here. Without the review process under the Voting Rights Act, South Carolina's voter photo ID law certainly would have been more restrictive. Several legislators have commented that they were seeking to structure a law that could be pre-cleared. The key ameliorative provisions were added during that legislative process and were shaped by the need for pre-clearance. And the evolving interpretations of these key provisions of Act R54, particularly the reasonable impediment provision, subsequently presented to this Court were driven by South Carolina officials' efforts to satisfy the requirements of the Voting Rights Act.

Congress has recognized the importance of such a deterrent effect. The Section 5 process here did not force South Carolina to jump through unnecessary hoops. Rather, the history of Act R54 demonstrates the continuing utility of Section 5 of the Voting Rights Act in deterring problematic, and hence encouraging non-discriminatory, changes in state and local voting laws.

The Court Blocked The Law For The 2012 Election Due To Concerns Over Lack of Preparedness To Prevent Racial Discrimination, And Its Future Implementation Is Cloudy

Judge Kavanaugh: Voter Suppression “Too Much Of A Risk to African-American Voters” To Allow Implementation Of The Voter ID Law For 2012. In the opinion for the panel, Judge Kavanaugh stated he had no confidence that South Carolina election officials could be adequately trained on how to prevent racial discrimination in time for November's elections:

[K]eep in mind that Act R54 may not have been pre-cleared for any elections without the expansive reasonable impediment provision.  Again, that's because this law, without the reasonable impediment provision, could have discriminatory effects and impose material burdens on African-American voters, who in South Carolina disproportionately lack one of the R54-listed photo IDs. Without the reasonable impediment provision, the law thus would have raised difficult questions under the strict effects test of Section 5 of the Voting Rights Act.  And the reasonable impediment provision carries  even greater importance for the 2012 elections because South Carolina citizens will not have much time to obtain the new free photo voter registration cards.  Because the voters who currently lack qualifying photo ID are disproportionately African-American, proper and smooth functioning of the reasonable impediment provision would be vital to avoid unlawful racially discriminatory effects on African-American voters in South Carolina in the 2012 elections.  Even assuming the best of intentions and extraordinary efforts by all involved, achieving that goal is too much to reasonably demand or expect in a four-week period - and there is too much of a risk to African-American voters for us to roll the dice in such a fashion.

The Atlantic's Cohen: The Opinion “Virtually Guaranteed Future Litigation.” Legal analyst Andrew Cohen said the decision places too much confidence in South Carolina election officials to properly enact the law, and is skeptical the law will be implemented without discriminatory effects:

In a case brought under the Voting Rights Act, in a state with a long history of racial discrimination, in circumstances where a partisan election law was enacted over the protests of minority representatives, and where there was strong trial evidence of the disparate impact the law would have upon the dispossessed, the three judges on the panel were content to rely upon the representations made by local officials that they could handle the “reasonable impediment” standard in a way that wouldn't disenfranchise legitimate voters.


What a strange thing. A restrictive law affecting fundamental civil rights -- indeed, perhaps the most fundamental of all civil rights -- survives a federal court challenge only because state officials pledged to enforce it say that they will do so in a way the measure's backers never intended. How long can such a law stay on the books before serious mischief occurs? And since when does the scope of a law “evolve” the way this one has, sui generis during a trial, without also being formally revised, on the books before the legislature. Think South Carolina lawmakers will memorialize this ruling with a “liberal” amendment to R54? No chance.

It's quaint that three judges in Washington, based upon the trial record before them, would have so much confidence and faith in South Carolina's election officials.