Obtuse Observer

December 30, 2011

Voter ID and The Obama Administration

The Obama administration, as well as the leftist blogosphere, has shown hostility towards voter ID requirements claiming that they are discriminatory.  Some forms of discrimination are perfectly legal and still others are simply not discrimination at all.  Here we are dealing with the latter.

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On December 23, the Department of Justice issued a letter to the State of South Carolina blocking its voter ID requirements.*  The DOJ has believes the requirements  of a photo ID will suppress minority voter turnout** and declined to make a determination regarding a discriminatory purpose for the requirement.  In short, because too few registered black voters have a SC driver’s license the requirement of a photo ID is discriminatory.

Current South Carolina Law requires one of the following to be presented at a voter’s polling place: 

  1. Driver’s License, 
  2. S.C. Identification Card issued by the Department of Motor Vehicles or, 
  3. S.C. Voter Registration Card.

The full text of the new South Carolina law has been a challenge to find in clean form.  Here is a link to the text as it progressed through the legislature through signing by the governor.  It includes all changes to the bill.  Here is the summary from VoteSmart.com.


-Requires voters to present one of the following forms of photo identification prior to voting (Sec. 2):

-Valid and current South Carolina driver’s license;

-Valid and current passport; 

-Valid and current military identification card containing a photograph issued by the Federal government; 

-Valid and current South Carolina voter registration card containing a photograph of the voter; or

-Any valid and current form of photo identification issued by the Department of Motor Vehicles.

-Authorizes a voter to cast a provisional ballot if the voter is unable to produce the required identification (Sec. 2). 

-Repeals the $5 fee for special identification cards for individuals aged 17 years and older (Sec. 3).

*Because of a past history of de jure discrimination South Carolina must have changes to their voting requirements approved by the Attorney General under Section 5 of the Voting Rights Act of 1965

**The DOJ determined that minority voters in South Carolina were 20% less likely to have a driver’s license and effectively disenfranchised.  The DOJ cherry picked data to reach this conclusion.  Broken down… 240,000 registered (including inactive) voters don’t have such an ID, 10% are black and  8.6% are white for a 1.4% difference.   The S.C. DMV subsequently reported to the DOJ that 207,000 of the 240,000 “live in other states, allowed their ID cards to expire, probably have licenses with names that didn’t match voter records, or were dead.”)

In an NPR article Pam Fessler noted that the number of registered voters without a driver’s license, regardless of race, may be as small as 30,000.  She said further, “And the Justice Department said that those new numbers didn’t refute the fact that minorities might be less likely to have the required ID.” 

As noted above The DOJ determined that the photo ID requirement will result in discrimination against minority voters. 

The determination appears challengeable on its face as to: the actual number of voters potentially exposed to what the DOJ regards as discrimination, what degree of potential discrimination is actionable and even what constitutes illegal discrimination in the first place. 

The letter failed to mention (why should it?) that similar legislation in several other states, including Georgia and Arizona, has met constitutional standards nor that a lawsuit filed in Georgia in 2005 by the ACLU and NAACP was dismissed for failure to produce a single voter who would have been prevented from voting as a result of such legislation. 

Legal Precedent Regarding Discriminatory Legislation: The letter mention the long standing precedent that evidence of discriminatory impact is inadmissible in court where a statute is neutral on its face and in its application.  South Carolina does not treat black people differently from white people when they apply for a state ID, nor does the federal government nor any other photo issuing agency authorized in the South Carolina statute.  (see Washington v Davis 426 U.S. 229, 1976). 

Legal Precedent Regarding Photo ID Requirements to Vote:  The letter does not concern itself with the fact that photo ID requirements have been addressed by the Supreme Court.  In a 6-3 decision Justice John Paul Stevens (never confused with being a right-winger, conservative, racists or apologist for state power) determined that the minimal additional burden placed on the relatively few (without the required ID) was outweighed by the interests of the state in preventing fraud, updating election procedures and safeguarding voter confidence.  See Crawford v Marion County Election Board 553 U.S. 181 (2008).  In this case plaintiff’s, again, failed to produce a single voter who would have been unable to meet the law’s requirements.

The fact is that being a member of a protected class is no impediment to getting the required ID and regarding disparate possession of same as a product of illegal discrimination does not pass the giggle test.

Because the DOJ numbers are subject to challenge for factual error and being statistically inconsequential  as well as ignoring well established law some commentators have suggested that the DOJ is motivated purely by political calculus (sacre bleu!) rather than by substantive efforts to address illegal discrimination and further that it is so blatant as to have the potential to bring Article 5 tumbling down in shame for doing exactly what it was intended to prevent, using race as a vote securing tool.

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