PLANK AUGUST 30, 2012
The thousands of reporters who departed the nation’s capital to cover the Republican National Convention in Florida have done an admirable job covering an important political event. But a big story taking place in the national media’s own backyard, one arguably even more important than the convention, slipped by almost entirely unnoticed: the federal court case pitting South Carolina against the Department of Justice over the state’s controversial Voter ID law. As one of only a couple of journalists in a sparsely attended courtroom in Washington DC this week, I couldn’t help wondering if the national press corps had taken its eye off the ball. What happens in Tampa this week, after all, will play a big role in determining the outcome of this year’s presidential election; but what happens in the U.S. District Court for the District of Columbia could shape local, state, and national elections for many years to come.
If the press hasn’t quite recognized the importance of this trial, the participants clearly have. The Justice Department didn’t mince words this week, condemning the South Carolina law—which calls for all voters to present one of five forms of photo ID at the polls and was signed into law in May 2011—for resurrecting the effects of Jim Crow laws that prevented African Americans from voting. (The law was subsequently blocked by the federal government on the grounds that it violated the 1965 Voting Rights Act.) South Carolina, for its part, has assembled a star-studded legal team, which includes Christopher Bartolomucci, a former White House lawyer for President George W. Bush, and Paul Clement, the lawyer who argued against Obama’s healthcare law in the Supreme Court, though he wasn’t in attendance this week in court. (Perhaps he was also in Tampa?)
Judging from the first several days of the trial, it seems that South Carolina faces an uphill fight. If it wants to prove the viability of its voter ID law—and, by extension, the laws of the eight other states that recently passed voter ID bills—it will have to convince a panel of three judges that its law is rooted in a legitimate concern over voter fraud and not racial discrimination. But South Carolina has so far failed to point to any specific examples of voter impersonation fraud. The Justice Department’s repeated requests from the state’s witnesses for examples of fraud received little answer. In fact, it seemed that South Carolina’s strategy has essentially been to concede the central point about fraud and argue instead that it’s legally sufficient for the law to simply bolster the impression that the government takes the voting process seriously. “Enhancing one area shows you are serious about stopping voting fraud,” Alan Clemmons, a Republican in the South Carolina House who was one of the chief writers for the bill, testified Monday. “You have to start somewhere.”
The Department of Justice argued, by contrast, that South Carolina’s political rhetoric of voter fraud is simply masking racial animus, pointing out that the law disproportionately affects African Americans. According to a Justice Department study, black voters are 20 percent more likely to be without these forms of ID. (South Carolina’s experts rebutted that more white voters lack photo IDs than black voters; 57,000 minority voters versus 91,000 white voters.) But it’s not just statistics that the federal government is evoking; Justice Department lawyers have also insisted that the court consider the racially polarized political climate of South Carolina; black residents in the largely rural state almost always vote Democrat. “Race and politics in South Carolina are inextricably intertwined,” Bradley Heard of the Justice Department said in his opening remarks. It’s no coincidence, the federal government argued, that the law was created soon after an unprecedented number of minority voters turned out in 2008 to elect President Barack Obama.
Ultimately, of course, it’s up to the judges—two of whom were appointed by President George W. Bush and the third by President Bill Clinton—to determine the plausibility of South Carolina’s claims that its law was established to preserve residents’ voting rights, not impede them. Testimony will conclude at the end of the week and oral arguments are slated for later in September. By that time, one can only hope that a few more political reporters will be paying attention.
*Update: A federal court ruled Thursday against Texas’s Voter ID law—a law similar to the one in South Carolina. The three judge panel said the law imposed “strict, unforgiving burdens on the poor.”