Scoppe: SC photo voter ID law much ado — and money, and political energy — about nothing

Associate EditorOctober 19, 2012 

IN CASE ANYONE was confused about exactly what difference it will make now that South Carolina has permission to implement the new photo ID voter law that Gov. Nikki Haley used to trash-talk the Obama administration at the Republican National Convention, the federal judges who unanimously approved it last week offer this explanation:

“South Carolina’s new law … does not require a photo ID to vote.”

And this: “voters with the non-photo voter registration card that sufficed to vote under pre-existing law may still vote without a photo ID.”

And this: “Act R54 will deny no voters the ability to vote and have their votes counted if they have the non-photo voter registration card that could be used to vote under pre-existing South Carolina law.”

And, in case you haven’t been beat over the head enough, this bit of commentary: “At first blush, one might have thought South Carolina had enacted a very strict photo ID law. Much of the initial rhetoric surrounding the law suggested as much. But that rhetoric was based on a misunderstanding of how the law would work. Act R54, as it has been authoritatively construed by South Carolina officials, does not have the effects that some expected and some feared.”

For this, S.C. Attorney General Alan Wilson paid outside lawyers $3 million to sue the federal government to allow us to implement the new law that requires nothing more than the old law did?

For this, the State Election Commission must spend a half million dollars on voter education and equipment and another $100,000 annually to produce new photo voter registration cards that no one will need to use?

For this, the Legislature waived the $5 fee we used to charge non-drivers for state ID cards, reducing the Department of Motor Vehicles’ operating funds by a projected $500,000 per year?

For this — and this is the kicker — our Legislature tied itself in knots for nearly all of the 2011 legislative session? Wallowed in a poisonous political debate that made progress impossible on legislation that actually had something to do with South Carolina, and could have made a difference in our state? That could have done something other than maintain the status quo?

Really?

And now Gov. Nikki Haley brags that when the U.S. Justice Department came after South Carolina, refusing to let us require photo IDs for voting, “we beat ’em”? And calls the ruling that left us with a law the court says in some ways is more liberal than our old law “a win for our country”? Opponents of photo ID requirements would probably agree with that assessment.

And House Speaker Bobby Harrell praises the ruling by trotting back out the rhetoric about how “In our society today, you need a photo ID to do just about anything, except vote” — as though the state law had somehow changed that?

The one Republican who actually accomplished something is Mr. Wilson, who asserts that the ruling “affirms South Carolina’s voter ID law should have been pre-cleared by the U.S. Justice Department.” He’s being far too modest. In fact, the judges wrote that the Justice Department was right to reject the law, and that they would not have approved it if not for Mr. Wilson, who handed his fellow Republicans a face-saving (if not an actual) victory with his “expansive interpretation” of the painfully vague “reasonable impediment” opt-out provision that renders the law … meaningless.

The opt-out provision allows voters without an acceptable photo ID to cast a provisional ballot if they sign an affidavit swearing they had a “reasonable impediment” to obtaining that ID. Critics rightly argued that the way our Legislature wrote the law, it was up to the State Election Commission, or county election commissioners, or poll workers, to decide just what was “reasonable.” Moreover, people who cast provisional ballots traditionally risk having them thrown out if they don’t show up to defend them against attacks at canvassing, several days after the election.

Mr. Wilson said from the start that he would define the opt-out provision broadly in favor of the voters. So broadly that they need only say they didn’t have time to get a state-approved photo ID. So broadly, in fact, that if no notaries showed up to provide their services for free, he would ignore the part of the law that says the notarized affidavits must be … notarized. His interpretation also shifted the burden of proof from the voter to the challenger who wanted to throw out a provisional ballot; that, the court said, meant no votes could be thrown out unless a voter was individually notified and given an opportunity to defend himself.

But while State Election Director Marci Andino said she would follow Mr. Wilson’s interpretation, she couldn’t force local officials to do likewise; and Mr. Wilson couldn’t force Ms. Andino’s successor to stay the course.

All of that changed when the judges gave the state the green light to implement the law, starting next year. Their approval was conditioned on the state applying the law the way Mr. Wilson interpreted it.

Sen. Brad Hutto, who led the floor fight against the legislation, said that the expansively interpreted version of the law that the court approved was something lawmakers could have passed “in a half hour.”

Too bad they didn’t try. The Legislature abdicates its constitutional duties when it writes laws that are so imprecise as to require an extensive “evolutionary process,” as the judges called it, in a federal courtroom. On a more practical note, I suspect the most vocal critics would have gone along with a law that wasn’t quite so expansive as what Mr. Wilson and the court produced. One that actually did something.

As the court noted, even a 2005 federal commission co-chaired by former President Jimmy Carter recommended a more stringent photo ID law than ours. One, for instance, that provides a two-election grace period, rather than an unlimited one, and then requires everyone to present a photo ID.

There were legitimate concerns that some elderly voters wouldn’t be able to come up with a legally acceptable photo ID in time for this year’s election. But it’s hard to imagine that being a problem if they had four years to do so, now that the Election Commission will be issuing photo voter registration cards by year’s end. Unlike the DMV’s ID cards, these won’t require a birth certificate; voters need only show their current voter registration card, or present a utility bill, bank statement or government document that includes their name and address.

Of course, as it stands, there’s no reason for them to bother doing even that.

Ms. Scoppe can be reached at cscoppe@thestate.com or at (803) 771-8571.

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