By: Lane Reeder

Prior to Shelby County v. Holder in 2013, South Carolina was a covered jurisdiction under Section Five of the Voting Rights Act.  In 2011, during Legislative Session 119, the South Carolina legislature passed, and the Governor signed, an act that made voting-related changes.  Section Five of Act R54 (A27 H3003) (2011) dealt with voter identification. Because this happened prior to Shelby County v. Holder, pre-clearance was required.  The State asked for pre-clearance from the Attorney General of the United States, but it was denied.  South Carolina then sought a declaratory judgment in the D.C. District Court.

Act R54 was pre-cleared by the court, in an opinion filed on October 10, 2012.  However, due to concerns about the ability of South Carolina to effectively implement the law before the elections of November 2012, the court delayed the law’s effect until any elections in 2013.

South Dakota passed a non-strict, photo ID law in 2003, and since then the number of states that have passed photo ID laws for voting has steadily increased.  Voter ID laws have always been controversial.  Several have been passed or changed since the decision of Shelby County.  Why would this law be cleared, and why has it not been challenged since it went into effect?

The Key “Effects” Factors For the Court

The D.C. District Court evaluated the effects of Act R54 against the ID law that was in effect at the time, and had been, in that form, since 1988.  This comparison was key for the court.  Under the old law, a voter was required to show a South Carolina driver’s license, DMV photo ID, or a voter registration card (with no photo).  Under the new law, a voter is required to present: a South Carolina driver’s license; DMV photo ID; passport; military photo ID; or a South Carolina voter registration card with a photo.  The court noted that this law expanded the types of identification that could be used, and even created a new type of ID (a voter registration card with photo) that could be procured for free.  The law also made the DMV photo ID free, as opposed to the $5 it previously cost.

The other key “effects” factor for the D.C. District Court was the “reasonable impediment provision.”  If the voter lacked current photo ID due to a reasonable impediment, the voter can complete an affidavit which states that an impediment exists, what that impediment is, and affirms that the voter is the person who appeared at the poll.  The voter then may complete a provisional ballot.  If the county board of voter registration and elections “determines that the voter was challenged only for the inability to provide proof of identification and the required affidavit is submitted,” the provisional ballot will be valid and counted.

Intent Test

The court determined that the law had no discriminatory purpose.  It came to this conclusion because the law is race-neutral on its face, pursues legitimate goals (deterring voter fraud and enhancing public confidence in the electoral system), and has no discriminatory/retrogressive effect.  Furthermore, there was no evidence in the legislative record (except for one email exchange between a House member and constituent—only the constituent used racial language) of discriminatory purpose.

Why South Carolina’s Law Is Probably Safe

South Carolina’s law will probably survive challenge under the Voting Rights Act and the 14th or 15th Amendments.  South Carolina’s law is not part of a broader package of laws that restrict voting, like North Carolina’s, which ended same-day registration, ended Sunday voting, and added other restrictions to North Carolina elections.  South Carolina does not have those voting features to begin with.  And unlike Texas’ voting ID law, which was recently heavily litigated, South Carolina’s law does not require voters, who do not have a form of approved ID, to present a document such as a birth certificate, utility bill, etc.  And unlike some other states which have had their voting ID laws approved or have defeated challenges to them (ex. Georgia; Indiana), South Carolina has two ameliorative measures, a newly created (with the law in 2011) and free voter registration card with a photo and free DMV photo ID cards.

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