WASHINGTON — A federal trial opening Monday is ostensibly a legal examination of South Carolina’s Voter ID law, but it will likely put on display the state’s history of racial discrimination and racially charged politics.
Dozens of S.C. legislators, state officials, professors and interest group leaders will testify for five days under questioning by attorneys from a prominent Washington law firm representing South Carolina and by top civil rights lawyers with the Justice Department.
Among the legislators testifying will be the photo ID bills’ chief sponsors, Republican Reps. Alan Clemmons of Myrtle Beach and Chip Campsen of Charleston, and a leading opponent, Democratic Sen. John Scott of Columbia. Scott, an African-American, will testify that he was excluded from final deliberations on the measure as part of broad plan by GOP legislators to suppress the vote of Democratic supporters.
“Based on approximately 25 years of experience in the (S.C.) Senate and House of Representatives combined, I believe that the members of the General Assembly knew that minorities are overwhelmingly likely to vote Democratic,” Scott said in advance written testimony.
“I also believe that the members of the General Assembly expected the voter ID bill to lead to lower turnout among minority voters,” Scott said.
Clemmons and Campsen didn’t submit advanced testimony, and Campsen declined to discuss the case with McClatchy. Clemmons is also scheduled to be in Tampa, Fla., this week as a delegate at the Republican National Convention.
After hearing the testimony, a panel of three judges – two appointed by President George W. Bush, one by President Bill Clinton – is expected to rule in early fall whether the law enacted last year but blocked by the Justice Department violates the 1965 Voting Rights Act.
The federal government’s top civil rights lawyer, U.S. Assistant Attorney General Thomas E. Perez, will argue that the law violates the Voting Rights Act, which Congress extended in 2006 for 25 years, because it would disenfranchise large numbers of black and other minority voters.
“The United States will show that the impact of requiring photo identification to vote a regular, in-person ballot will fall far more heavily on African Americans, and that South Carolina legislators knew, given the data provided by the (S.C.) State Election Commission, that this would be the case,” Perez wrote in a pre-trial brief filed last Tuesday.
Paul D. Clement, a former U.S. solicitor general under President George W. Bush, will respond on behalf of South Carolina that the photo ID law isn’t discriminatory and has a legitimate, color-blind aim of preventing voter fraud.
“Act R54 is not the cause of any disparity in the rates of possession of photo ID by registered voters,” Clement said in his pre-trial brief. “The Act will neither disproportionately affect nor impose a material burden on minority voters.”
Addressing the simmering racial currents at the core of the case, Clement will argue that South Carolina’s Jim Crow legacy should not be held against it in judging the fairness and legality of the photo ID law.
“Looking more broadly at South Carolina’s recent history, it is clear that the state has come a long way from the 1960s,” Clement wrote in the brief.
As proof, Clement noted that S.C. Gov. Nikki Haley, who signed the photo ID law May 18, 2012, is “the first minority governor in the state’s history” as the daughter of Indian Sikh immigrants.
Clement will be joined in defending South Carolina by Christopher Bartolomucci, who served as a White House lawyer under Bush. Both men work for the Bancroft firm, a prominent Washington legal group that focuses on cases likely to go to federal appellate courts or the U.S. Supreme Court.
Regardless of how the three-judge panel rules, the South Carolina law is expected to end up before the Supreme Court. The high court is also likely to decide the fate of a Texas state photo ID law, on which a panel of federal district judges hasn’t yet ruled after a trial last month.
Under the Voting Rights Act, any appeal of a ruling from a federal district court must go directly to the high court, bypassing the federal appellate system.
To rebut the claim of progress in South Carolina race relations, lawyers for some of the nation’s most powerful civil rights groups, which have intervened in the case in opposition to the photo ID law, filed a list of 21 cases going back to 1980 in which federal courts found evidence of racial discrimination in the state.
Among the interest groups are the NAACP, the American Civil Liberties Union, the Lawyers’ Committee for Civil Rights Under Law and the Brennan Center for Justice at New York University.
Among 30 people expected to testify at the trial are S.C. House Speaker Bobby Harrell, a Charleston Republican; Lt. Gov. Glenn McConnell; Marci Andino, executive director of the State Election Commission; Marilyn Bowers, an SEC commissioner; Kevin Shwedo, executive director of the S.C. Department of Motor Vehicles and Barbara Zia, head of the South Carolina League of Women Voters.
In what promises to provide some of the trial’s most dramatic moments, Perez will argue that white male legislators excluded black counterparts from deliberations on the photo ID bill and ignored their concerns.
“African-American legislators in the (S.C.) House had no meaningful input into the bill,” Perez wrote in his brief. “Compromises struck with African-American senators were repeatedly gutted, as the provisions they sought to have included in the bill – acceptance of government employee IDs, exemptions for the elderly, and early voting – were stopped.”
The trial will also see dueling experts, each bringing reams of election, voting and demographic data.
The state’s star witness, University of Georgia political scientist Trey Hood, will testify that the photo ID law would produce “no legally disparate impact on minority voters.”
The Justice Department will call Charles Stewart, a political scientist at Massachusetts Institute of Technology, and Ted Arrington, a political science professor emeritus at UNC-Charlotte.
Stewart will testify that the law would “impose disproportionate burdens on minority voters in South Carolina that do not currently exist under South Carolina law.”
Arrington will testify that the photo ID law “was enacted with a racially discriminatory purpose.”
The intervening civil rights groups will call three prominent scholars, among them Clemson University history professor Orville Vernon Burton, who will testify that the law is intended to suppress the growing strength of the African-American vote.
Also testifying will be several South Carolina voters who will say that the law would make it more difficult for them to cast ballots.
Based on its pre-trial brief, South Carolina’s case rests heavily on a 2006 U.S. Supreme Court decision that upheld an Indiana voter ID law.
In the majority opinion for the 6-3 ruling, Justice John Paul Stevens, who led the high court’s liberal wing until his 2010 retirement, said the law would burden only a small share of voters and that their burdens were offset by Indiana’s need to prevent electoral fraud.
The South Carolina case may compel the Supreme Court eventually to examine the legitimacy of the Voting Rights Act in ruling on the Southern state’s photo ID law in light of its earlier decision in the Indiana case.