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 “pre-clear” – 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 a 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 pre-clear 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 but expressed 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. A state election official also said poll managers would sign affidavits if notaries were not available, even though that would violate the law.