South Carolina's Difficult Road to Pre-Clearance under Section 5 of the Voting Rights Act: The D.C. District's South Carolina V. United States Decision

By Curry, Todd A. | Justice System Journal, September 1, 2012 | Go to article overview

South Carolina's Difficult Road to Pre-Clearance under Section 5 of the Voting Rights Act: The D.C. District's South Carolina V. United States Decision


Curry, Todd A., Justice System Journal


South Carolina is not a stranger to the Voting Rights Act (VRA) of 1965. South Carolina was the first state to challenge the constitutionality of the VRA in South Carolina v. Katzenbach, 383 U.S. 301 (1966). Following a legacy of literacy tests, poll taxes, and whites-only primaries, South Carolina is listed as one of the areas considered a covered jurisdiction by Section 5 of the VRA. Covered jurisdictions must gain pre-clearance for any change in voting laws by either the Department of Justice or a three-judge panel of the United States District Court for the District of Columbia. In the wake of South Carolina's new voter-ID law, Act R54, enacted on May 18, 2011, the state's course to pre-clearance was not without trouble, though in the end the state achieved its goal, albeit with a delay.

Section 5 is the apex of the VRA's true power. Section 5 requires all states or areas that are considered covered jurisdictions to submit for pre-clearance any law that will change the nature of voting within the area. This includes changes in voter registration procedures; polling locations; and, in South Carolina's case, requirements to vote. Section 5 allows the covered jurisdiction to choose the institution from which it will attempt to gain pre-clearance-either the Department of Justice or a three-judge panel. South Carolina initially chose the Department of Justice.

The Department of Justice rejected South Carolina's request for pre-clearance on December 21, 2011, citing the possible retrogressive effect it would have on minority voting, thus forcing the state to appeal to the three-judge panel. In South Carolina v. United States, No. 12-203, 2012 U.S. Dist. LEXIS 146187 (D.C. Cir. Oct. 10, 2012), the panel, consisting of Circuit Judge Brett Kavanaugh, District Judge Colleen Kollar-Kotelly, and District Judge John D. Bates, ruled in favor of South Carolina, pre-clearing their new voting law for 2013; but the panel refused to give the state approval to institute the new practices for the November 2012 elections.

South Carolina's new voter-ID law, Act R54, amends South Carolina's previous voting law, which went into effect in 1988. The new law first institutes a new voter registration card, including a picture, to be valid only for voting purposes. Unlike the previous ID card, which cost five dollars, the new card is free to the voter. The law then clarifies what photo IDs also will be recognized as valid to cast a ballot, supplementing the previous list to include driver's licenses, other photo IDs from the Department of Motor Vehicles (DMV), passports, military IDs, and the new voter ID cards, all of which contain a photo. If an individual cannot produce a valid photo ID at the polls, he or she may still cast a provisional ballot if the voter is willing to sign an affidavit attesting a reasonable impediment that has prevented her from obtaining a photographic form of identification.

The Department of Justice claimed the new law discriminated against minority voters because they were 20 percent more likely to not have photo IDs. The Justice Department argued that because of the level of poverty among these minority groups, a significant number would be unable to obtain the new voter ID cards. Even though Act R54 contains provisions that will launch a significant voter education program, and also contains a provision that will allow any interested party to get the rolls of individuals who are legally qualified to vote but do not have a photograph ID, the Department of Justice still claimed this act would have the effect of diminishing the voter presence of traditionally underrepresented groups. This marked the first time in 20 years that the Department of Justice has refused to approve a change in voting laws for a covered jurisdiction.

South Carolina appealed the decision of the Department of Justice, and the case went to trial in the United States District Court for the District of Columbia in August 2012. …

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