South Carolina v. United States

• Decision Date: 10 October 2012
• Docket Number: Civil Action No. 12–203 (BMK)(CKK)(JDB).
• Parties: 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.
• Court: U.S. District Court — District of Columbia

898 F.Supp.2d 30

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,andJames Dubose, et al., Defendant–Intervenors.

Civil Action No. 12–203 (BMK)(CKK)(JDB).

United States District Court, District of Columbia.

Oct. 10, 2012.

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.

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 that 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 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 registeredto 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...