Attorneys representing both sides pointed to South Carolina’s Act R54 to support their arguments during an October 23 hearing before District Judge Thomas Schroeder on the Defense team’s motion to dismiss the case.
Act R54 and the Voting Rights Act
Signed into law by Republican Governor Nikki Haley on May 11, 2011, Act R54 requires South Carolina voters to present one of five state-approved IDs at the polls. Voters without an approved ID can sign an affidavit stating a ‘reasonable impediment’ kept them from obtaining an ID.
Voters signing the affidavit are given a provisional ballot.
When Act R54 was passed in 2011, South Carolina was covered by the pre-clearance formula mandated by Section 5 of the Voting Rights Act. This meant any changes to South Carolina voting law had to be preapproved by the Department of Justice.
When the Department of Justice rejected Act R54 on the grounds that the photo ID requirement would disenfranchise minority voters, South Carolina challenged the decision in federal court.
On October 10, 2012, a three-judge panel reversed the Department’s rejection, ruling that “requiring such affidavits does not pose a material burden on the right to vote for Section 5 pre-clearance purposes.”
VIVA, Lawsuits and Section 2
In June 2013 the Supreme Court struck down the Section 5 coverage formula, releasing the covered states, including North Carolina, from pre-clearance.
On August 12, 2013, North Carolina Governor Pat McCrory signed the Voter Information Verification Act (VIVA), a sweeping overhaul of North Carolina election law.
VIVA altered nearly every aspect of North Carolina election law. It’s multiple provisions cut seven days from the state’s early voting schedule and ended same-day registration, out-of-precinct ballots, straight-ticket voting and a program pre-registering 16-and 17-year-olds, among other changes.
VIVA also required North Carolina voters to present one of eight state-approved photo IDs before casting a ballot—but did not offer them the option of signing an affidavit instead.
By September 30, 2013, three lawsuits had been filed in federal court by the Department of Justice, the NAACP, the League of Women Voters and other civil rights groups. The plaintiffs claimed VIVA violated both the U.S. constitution and Section 2 of the Voting Rights Act.
Section 2 allows plaintiffs to challenge voting laws in areas of the country not covered by Section 5. A trial was scheduled for July 2015.
A Sudden Amendment and Failed Negotiations
On June 18 the North Carolina General Assembly passed new legislation adding a “reasonable impediment” affidavit to VIVA. Like South Carolina’s Act R54, the affidavit allowed voters to claim a reasonable impediment kept them from getting a photo ID and entitled them to a provisional ballot.
The sudden change to the law, just three weeks before the start of court proceedings, prompted the Plaintiffs to ask Judge Schroeder to drop claims against the ID provision from the trial.
Both sides agreed to try and reach an out-of-court settlement on the voter ID provision instead. When those negotiations stalled in September, Defense attorneys asked the Judge to rule on their motion to dismiss the ID claims altogether.
North Carolina’s new “reasonable impediment” affidavit made those claims moot, the Defense team said.
“Escape Valve” or “Trap for the Unwary”?
Judge Schroeder called the affidavit option an “escape valve” at the October 23 hearing.
“It’s not the same photo ID requirement,” he told Plaintiffs’ attorney Micheal Glick.
Glick argued the Plaintiffs did not know how the new affidavit would be implemented. He described the state’s attitude as “trust us.”
“We on this side don’t know how the state intends to handle this,” he said.
Plaintiff’s attorney Bert Russ pointed out that Act R54 was thoroughly vetted by a three-judge panel before it was implemented. He quoted a warning from the panel’s final ruling:
“…the process of filling out the form must not become a trap for the unwary, or a tool for intimidation or disenfranchisement of qualified voters.”
Glick also said the sudden change to the strict voter ID requirement could confuse voters.
“They’ve educated the public for a year and a half about ‘you need ID or don’t show up at all,'” he said.
Defense attorney Alexander Peters disagreed.
“The State Board [of Elections] has been very clear that they will educate” the public, he said.
Peters said the Plaintiffs were seeking relief from a law that no longer exists. He said the addition of the affidavit ended the strict ID requirement.
A March Primary and “Potential for Chaos.”
Timing could become an issue in the case. When the three-judge panel cleared South Carolina’s Act R54 in October 2012, they prohibited South Carolina from implementing it until the 2013 because “With under four weeks left to go [until the 2012 election], the potential for chaos is obvious.”
The North Carolina General Assembly recently voted to move North Carolina’s primary from May to March.
When Judge Schroeder denied the Defense’ motion to dismiss he “tentatively” scheduled a trial for late January.
“I’m not anticipating a lengthy trial,” he said.
