By Ernest A. Canning on 8/7/2011, 7:44pm PT  

Guest blogged by Ernest A. Canning

Last Friday, Aug. 5, in a 15-page letter [PDF], the American Civil Liberties Union (ACLU) asked the U.S. Department of Justice to deny pre-clearance of South Carolina's photo ID law, as signed into law by Gov. Nikki Haley (R), pursuant to Section 5 of the Voting Rights Act. Pre-clearance must be denied if the law was enacted for a discriminatory purpose or if it has "the effect of denying or abridging the right to vote on account of race or color."

As the Voting Rights Act of 1965 addressed specific barriers to voting that had been enacted by the Jim Crow South, the ACLU letter, of necessity, focuses upon the disproportionate impact upon South Carolina's African-American electorate who are amongst the 178,175 registered South Carolina voters who do not possess the forms of photo identification required by the state's new polling place Photo ID restriction law. However, the ACLU's discussion of pretextual justifications for the Palmetto State's new law exposes a GOP intent to suppress the vote on the basis of class as well as race not only in South Carolina but in the spate of similar photo ID laws that are being pushed in state after state by the GOP, and supported by their paid partisan shills in the right-wing media...

'Voter Fraud' as Pretext for Unlawful Discrimination

In its letter, the ACLU argues that polling place photo ID restrictions have "the potential to prevent one, and only one, type of voter fraud --- voter impersonation...a person...going to a polling place on Election day, fraudulently requesting a ballot under the name of a qualified voter of that precinct who has registered to vote but has not voted prior to the fraud...The ID requirement will not prevent any other type of fraud, such as double-voting, felon voting, non-citizen voting, absentee fraud, registration fraud, vote buying, or negative vote buying."

The ACLU notes that the GOP proponents of the bill failed to "conduct any studies to determine the existence...of voter fraud" and cited "out-of-state statistics regarding the number of people who are registered in more than one state and the number of felons who are registered to vote" --- statistics that "are irrelevant" because these forms of voter fraud "could not be solved by" the photo ID law.

The ACLU, in support of its claim that GOP claims of "voter fraud" are but a pretext for voter suppression, cites an item The BRAD BLOG covered on April 11, 2007 after The New York Times revealed that the Bush-appointed members of the U.S. Elections Commission (EAC) first suppressed and later altered a draft report which concluded that GOP claims of "voter fraud" were overblown.

It also points to "The Truth About Voter Fraud," the 2007 study by the non-partisan Brennan Center for Justice at NYU Law School "which found that 'voter fraud is extraordinarily rare' but did not find a single incidence of voter impersonation" --- for an obvious reason:

To steal even one vote by impersonation requires the impersonator to go to a precinct where he will not be recognized and the registered voter he intends to impersonate will not be recognized. The impersonator has to know that the registered voter has not already voted either in person or by absentee...

The ACLU, thus, underscored the point made by Robert Brandon of The Inquirer that "photo identification at the polls is a solution in search of a problem."

Polling place Photo ID restrictions as new 'poll tax'

In Harper vs. Virginia Board of Elections (1966), the U.S. Supreme Court invalidated a poll tax, stating:

We conclude that a State violates the Equal Protection Clause of the Fourteenth Amendment whenever it makes the affluence of the voter or payment of any fee an electoral standard. Voter qualifications have no relation to wealth nor to paying or not paying this or any other tax.

The ACLU letter contains significant statistics that suggest that South Carolina's new photo ID law operates as an illegal poll tax, especially for the disproportionate number of African Americans who live below the federal poverty level.

In a recent article here, Brad Friedman exposed the hoops that a Wisconsin voter had to jump through in order to obtain a newly required photo ID in that state, after they hastily passed a similar law in advance of the upcoming state Senate recall elections.

While the photo ID is to be issued for free in the Palmetto State, the certified documents needed to obtain the photo ID are not. A certified copy of a birth certificate runs from $12 to $17. A passport comes at a cost of $165. The cost of naturalization documents runs from $345-$460.

For most voters, the ACLU asserts, DMVs are not within walking distance (remember, if you don't have a state-issued Photo ID already, it's very likely to be because you don't have a drivers license at all) and South Carolina's public transportation is less than adequate. Moreover, since the law requires that voters appear at a DMV in person and the state does not mandate paid leave for the purpose of obtaining the ID, an employee not only faces lost wages but possible loss of a job if he or she takes the time off to get the photo ID.

Ball in Eric Holder's court

There can be little question but that the case made by the ACLU with respect to South Carolina could easily be applied to Florida, Texas and every other state covered by the Voting Rights Act that has recently passed similar new polling place Photo ID restrictions. The only question is whether the U.S. Justice Department will abide by the responsibilities imposed by the Voting Rights Act, or, as has become all too commonplace under the Obama administration, turn a blind eye to justice in the face of the hard-right noise --- and voter suppression --- machine.

UPDATE 08/09/11: Around 50 people attended a rally against SC’s photo ID law held at the International Longshoremen’s Assoc. Hall in Charlestown, according to The Post and Courier.

Underscoring the significant roadblock imposed by the new law, Andrea Tangredi, a well-educated MA transplant, said she had "spent at least 17 hours online and in person since July trying to get a license here, only to face hurdle after hurdle tied to her several name changes" (occasioned by successive marriages).

UPDATE 08/17/11: The DOJ, which has not yet made a formal pre-clearance determination, ruled that South Carolina’s new photo ID law cannot be enforced for any elections this year.

* * *

Ernest A. Canning has been an active member of the California state bar since 1977. Mr. Canning has received both undergraduate and graduate degrees in political science as well as a juris doctor. He is also a Vietnam vet (4th Infantry, Central Highlands 1968).