WASHINGTON — Recognizing this year's elections are just a few weeks away, a panel of three federal judges questioned on Monday whether South Carolina should wait until 2014 to put its voter identification law into effect.
The judges raised the question as an attorney for South Carolina delivered closing arguments in the trial over whether the state's law discriminates against minorities. Last December, the Justice Department refused to "preclear" – find it complies with the Voting Rights Act – the law so it could go into effect.
A decision in the case is expected in early October.
Voter ID laws have become a point of contention in this year's elections, particularly with the close race between President Barack Obama, a Democrat, and Republican nominee Mitt Romney. Democrats contend the laws could prevent key constituencies from voting, making a difference in tight races.
The laws' opponents see them as a Republican response to 2008's record turnout of African-American and Hispanic voters. Supporters have pitched the laws as tools against voter fraud and to build confidence in the election system.
The U.S. Supreme Court upheld Indiana's voter ID law in 2008, and Georgia's top court upheld that state's voter ID law. But three-judge federal panel struck down Texas' voter ID law, and state courts in Wisconsin and Pennsylvania have blocked those states' voter ID laws for now. The Justice Department cleared New Hampshire's voter ID law earlier this year.
South Carolina's law requires voters to show a driver's license or other photo identification issued by the Motor Vehicles Department, a passport, military photo identification or a voter registration card with a photo on it.
Asking questions from the bench, the judges pointed out that if they allow South Carolina to implement the law voters would not have much time before the Nov. 6 elections to get required ID.
"Are you urging us to preclear for 2012?" asked John Bates, U.S. District Court Judge for the District of Columbia.
Christopher Bartomolucci, the attorney for South Carolina, said the state wants approval for 2012 as well as future elections. He explained the state's law allows people to claim they were unable to get the required ID because of a "reasonable impediment." People unable to do so because there is not enough time before election day would be able to make that claim, he said.
"Everybody's got a pass for this election," Bartomolucci said.
But that provision also raised questions.
Judges agreed that the provision made South Carolina's law less troublesome and is the only reason the law would work for this year's election.
But they expressed some skepticism about the process for voters without required ID. Those voters will be asked at the polls whether they had a reasonable impediment beyond their control that kept them from getting the ID.
If they answer yes, they can fill out an affidavit stating the reason and have the affidavit notarized. The state has said it will make notaries available at all of its polling places and they will not be allowed to charge fees for the service. They then will be allowed to cast a provisional ballot.
The law requires voters who cast provisional ballots to bring any of the required ID to the county election office before the vote is certified for their vote to count. But the state said in trial testimony that poll workers would err on the side of voters and count the provisional vote unless the county had grounds to believe false information was given. A state election official also said poll managers would sign affidavits if notaries were not available, even though that would violate the law.
Judges said the South Carolina law had evolved since it was passed, but opponents said it was being fixed. They argued that there is no guarantee votes wouldn't be challenged later by partisan poll watchers and the law would end up in state court.
Garrard Beeney, attorney for civil rights and advocacy groups opposing the law, pointed out to judges Monday that the manual for notaries requires them to request the same ID that the state requires to vote. It also allows them to refuse to notarize a document if the person is drunk, under the influence of drugs, doesn't understand the process and other reasons. Beeney said that created a two-tier voting system.
In addition, those using the "reasonable impediment" provision will vote on provisional ballots and will have to appear at a hearing later if their ballot is challenged. Beeney said the law leaves too much discretion to county boards to decide whether to count the vote and adds the burden of requiring some voters, who are likely to be mostly African American, to get to the hearing to find out if their vote is counted.
Judge Brett M. Kavanaugh of the U.S. Court of Appeals for the D.C. Circuit asked the state to respond to that argument. He said the process would create one line that would be disproportionately African American because data showed that African Americans were more likely to lack the required ID and will be more likely to be asked if they had a reasonable impediment to getting it.
"The pool of people being asked, we know, is going to be disproportionately African American," Bates said.
The third judge on the special panel for voting rights cases is Colleen Kollar-Kotelly, also of the U.S. District Court for the District of Columbia. She was appointed by former President Bill Clinton. Bates and Kavanaugh were appointed by former President George W. Bush.
The case is 12-203
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