Rightwing Pundits Twist S.C. Voter ID Decision in Ongoing Effort to Gut Voting Rights Act

by Jeremy Leaming

Just as the nation is beset with invidious and widespread voter fraud, according to rightwing pundits and activists, there exists little, if any, intent among state lawmakers to suppress the vote of certain groups of people, like minorities.

But in reality claims of voter fraud are wobbly, for there’s not much evidence it actually exists and racial discrimination whether overt or latent most certainly continues to hinder the nation’s long and difficult march toward full equality for all.

Earlier this week a three-judge panel of the U.S. District Court for the District of Columbia blocked South Carolina’s voter ID law, R54, from being implemented for the 2012 elections. The federal court found that state election officials did not have sufficient time to implement the law in compliance with Section 5 of the Voting Rights Act, which prohibits states from implementing laws that have the intent or the effect “of denying or abridging the right to vote on account of race or color.” Section 5 requires states and localities with histories of denying minorities the right to vote, South Caroline is one such state, to get “pre-clearance” from the federal court in D.C. or the Department of Justice.   

The federal court in South Carolina v. U.S. granted pre-clearance for S.C.’s voter ID law for future elections, but only after S.C. lawmakers had made revisions to the law to ensure it did not subvert the Voting Rights Act. In addition the court noted that racial discrimination still exists in this nation and highlighted the importance of the law’s Sec. 5 pre-clearance provision.

In the majority opinion, Judge Brett Kavanaugh emphasized the continued need for Sec. 5, saying, “Racial insensitivity, racial bias, and indeed outright racism are still problems throughout the United States as of 2012. We see that reality on an all-too-frequent basis.”

And the only reason the S.C. voter ID law won pre-clearance for future elections rested primarily on changes to the law that provided for a “reasonable impediment provision,” which is meant to “ensure that all voters of all races with non-photo voter registration cards continue to have access to the polling place to the same degree they did under” the state’s previous voter ID law. The reasonable impediment provision is supposed to allow voters who show up at their precincts without a photo ID to still cast a provisional ballot if they sign an affidavit saying why they could not obtain an ID, such as inability to travel to an office to get the ID, illness, work-related matters, among other subjective reasons. And the provisional ballot, according to how the law has been interpreted, will be counted unless evidence surfaces that an affidavit is false.

But Media Matters’ Sergio Muñoz points out that some rightwing media are, perhaps not surprisingly, claiming that the decision is actually a ringing endorsement of the need to kill Sec. 5 of the Voting Rights Act.

Muñoz cites a Wall Street Journal editorial that says since the court allowed the voter ID law for future elections it obviously meant that claims of racial discrimination are bogus. The editorial stated the court’s opinion “underscores the point” that “claims of racial discrimination are specious.”

Muñoz also points us to comments from NRO contributor Hans Von Spakovsky that “the South Carolina law was never racially discriminatory and alleged DOJ’s claims to the contrary were ‘frivolous.’”

Not only did the conservative judge Kavanaugh recognize the validity and integrity of Section 5, Muñoz notes a separate opinion by Judge John Bates, which concluded that without Sec. 5’s pre-clearance mechanism it was likely the S.C. voter ID law could have turned out as ridiculously rigid as ones created by Republican-controlled statehouses in Texas and Indiana, for instance.

“Without the review process under the Voting Rights Act, South Carolina’s voter photo ID law certainly would have been more restrictive,” Bates wrote. The judge noted that S.C. lawmakers eventually began to seek ways to make the voter ID law comply with Sec. 5. “The key ameliorative provisions were added during the legislative process and were shaped by the need for pre-clearance,” Bates wrote.

Sec. 5 did not place hurdles for S.C. lawmakers to leap over, Bates continued. “Rather, the history of Act R54 demonstrates the continuing utility of Section 5 of the Voting Rights Act in deterring problematic, and hence encouraging non-discriminatory, changes in state and local voting laws.”

Thanks to Muñoz for calling out rightwing pundits for their shameless work to twist a fairly straightforward federal court ruling to argue for the gutting of the Voting Rights Act. Judge Kavanaugh in his opinion called the Voting Rights Act “among the most significant and effective pieces of legislation in American history. Its simple and direct prohibition of racial discrimination in voting laws and practices has dramatically improved the Nation, and brought America closer to fulfilling the promise of equality espoused in the Declaration of Independence and the Fourteenth and Fifteenth Amendments to the Constitution.”

And nothing in Kavanaugh’s opinion cast doubt on the continued importance of the law.