State's lawsuit over voter ID could cost more than $1 million
South Carolina taxpayers will be on the hook for a high-powered Washington attorney's $520-an-hour rate when the state sues the federal government this week to protect its voter ID law.
That litigation could cost more than $1 million, according to two South Carolina attorneys who have practiced before the U.S. Supreme Court.
S.C. Attorney General Alan Wilson has more than five dozen staff attorneys to handle the state's legal affairs, but Wilson hired a former U.S. solicitor general to litigate the voter ID case at a rate of $520 an hour, a contract obtained last week reveals.
The law would require voters to present official photo identification at the polls. Additional contracted associates and paralegals will earn between $180 and $200 an hour on the case.
"It wouldn't cost anything if (U.S. Attorney General) Eric Holder and the Department of Justice would get out of the way and let us protect our citizens and enforce our laws," Rob Godfrey, a spokesman for Gov. Nikki Haley, said in a statement.
Independent political analysts, however, are asking whether a
costly, lengthy legal battle on voter ID is worth the state's time and money. With little evidence of voter fraud, South Carolina has more urgent issues to tackle, they said.
"With states like South Carolina facing budgetary restrictions, it's interesting they can make funds available for this type of activity," said J. Michael Bitzer, who has followed South Carolina politics for two decades and now teaches political science at Catawba College in Salisbury, N.C.
"People will question, 'Why isn't this going to education or other principle public services.' It plays well with (Haley's) base though."
Haley has called the state's voter ID measure, which she signed into law in May, one of the key victories of her first year in office. It wasn't in effect for last weekend's primary, though, because the U.S. Department of Justice struck down the law in December, saying it would disproportionately disenfranchise minorities who lack valid identification.
Haley, Wilson and most Republican legislators say the law is necessary to prevent voter fraud, and have called the Justice Department's ruling a "clearly political decision" by the Obama administration.
Opponents -- including Democrats, the NAACP and the ACLU -- say that beyond instigating possible voter suppression, the Haley administration has failed to prove a voter-fraud problem exists.
Evidence of fraud the administration presented this month was overstated, the director of the State Election Commission said Wednesday in an S.C. House hearing.
Some legal and political observers said South Carolina's suit could rise to the U.S. Supreme Court.
S.C. Sen. Tom Davis, an influential Republican from Beaufort, said the law is "worth defending," adding, "It's unfortunate we have to go down this road."
Karen Martin, a Spartanburg tea party organizer, agreed.
"It's money well spent, when compared to some other things money is frivolously spent on," she said.
John Crangle, director of Common Cause South Carolina, a public interest watchdog group, said the law's supporters are "using the rubber ruler" to justify the expense of a suit he and other critics call frivolous.
Bitzer said fiscally conservative supporters of the law should be asking, "Is this really a fight worth having in a very tight budgetary year?"
It is not uncommon for state attorneys general to hire outside help for major cases.
Wilson's office has a $500,000 budget this year to "fight our federal court battles," spokesman Mark Plowden said.
"We've obviously not exhausted that," he said. The fiscal year began July 1.
In August, four months before the Justice Department rejected South Carolina's law, Wilson hired Washington attorney Paul Clement at an hourly rate of $520, according to a contract obtained by The Post and Courier.
Clement, who was U.S. solicitor general during the Bush administration, has argued more than 55 cases before the U.S. Supreme Court.
Clement is the attorney representing the 26 states, including South Carolina, that filed suit against the federal government over the health care overhaul. Each state in that case agreed to pay him a flat rate of $25,000 to litigate, Plowden said.
This month, Wilson also hired Christopher Coates, a former U.S. Justice Department attorney who now lives in the Charleston area. The state did not provide a copy of Coates' contract, but indicated that he would be paid a maximum of $50,000.
Wilson's office declined last week to estimate the cost to the state of bringing the suit.
"It is impossible for us to estimate total costs of cases," Plowden said. "We have no idea how long they will go on, nor what expenses will be incurred."
Columbia attorney Herb Louthian, a Common Cause board member, said he expects it to be at least $1 million because "it will take an enormous amount of time to litigate."
Louthian questioned why Wilson's roster of 66 staff attorneys isn't involved instead.
"Are we saying nobody on that staff is capable of handling this?" he said. "Obviously there are plenty of people who can handle it who are already being paid. How can we justify this?"
Charleston attorney Armand Derfner, an expert in voting-rights litigation, called Clement's rate "a bargain," saying the prominent Washington attorney generally commands hourly rates up to $750. Still, the adjunct professor at the Charleston School of Law said he expects litigating South Carolina's suit would "easily cost $1 million."
The state plans to file the suit by Tuesday, Plowden said.
Under the Voting Rights Act, the state's hired attorneys will argue before a three-judge panel in U.S. District Court in Washington that it should be able to keep the ID law. If the state loses there, the appeal could go directly to the U.S. Supreme Court.
The state's argument could challenge the Voting Rights Act itself, Plowden confirmed. The 1965 act requires the federal government to "pre-clear," or approve, any changes to voting laws in South Carolina and other mostly Southeastern states with histories of discriminating against minority voters.
Plowden said the state could argue the "pre-clearance" portion of the act infringes on state sovereignty and is no longer valid.
Texas, another state requiring pre-clearance from the federal government for new voting laws, filed a federal suit Monday to preserve the voter ID law it passed last year.
South Carolina is among eight states that have passed strict laws requiring voters to show photo identification to cast ballots in person, according to the National Conference of State Legislatures, a group that tracks state laws.
In those states, residents without photo ID at the polls are allowed to cast provisional ballots that are counted only if they present photo ID to officials within several days of the election.
At the beginning of last year, only Georgia and Indiana had strict photo ID laws, according to research compiled by the national group. The remaining six passed their new laws in 2011, although none of those is in effect, according to the group.
Most states that passed voter ID laws are not required to have federal approval of the changes, as South Carolina is.
"Voter ID was the hottest topic of legislation in the field of elections in 2011, with legislation introduced in 34 states," the National Conference of State Legislatures said. This year, legislation is pending in 26 states, it said.
Crangle, of Common Cause, called the legislation "a generic part of the Republican national strategy to suppress the black vote." The Haley administration passed some of the nation's toughest laws to prove its conservative credentials, he said.
Bitzer, the Catawba politics professor, said the legislation "is definitely a partisan mantra."
Mark Tompkins, a political science professor at the University of South Carolina, called voter ID laws a "litmus test" for Republican conservatism, similar to the 26-state protest of the federal health care overhaul.
"Republicans have turned it into a cause, although there isn't much evidence out there that voter fraud is a problem," Tompkins said. "But they feel they're neglecting their base to not pay attention to it."
Sen. Brad Hutto, an Orangeburg Democrat and practicing trial lawyer, said the $1 million expected cost of litigating would be better spent updating state election equipment.
"This suit might be good for scoring political points, but why should South Carolina taxpayers have to fund that?" Hutto asked.
When Haley signed the voter ID bill into law in May, she highlighted the national focus on the state's efforts.
"This new law is very important, not just for South Carolina, but because I have heard from people across the country about how impressed they are that we took it upon ourselves to secure the integrity of our election process," Haley said in a May press release.
At a news conference Jan. 10 to announce that the administration would file a federal suit, S.C. House Speaker Bobby Harrell, a Charleston Republican, said South Carolinians demanded the stricter law.
"Our citizens want us to exercise our constitutional right to secure our state's election process from fraud and abuse with voter ID," Harrell said at the time.
Asked this week to provide evidence of constituent support such as letters or a log of phone calls, Harrell's spokesman pointed to a 2010 Rasmussen poll that said 82 percent of likely voters nationally think all voters should be required to present photo identification to vote in U.S. elections.
He also pointed to the online comments sections of postandcourier.com and thestate.com.
"We printed out all the comments" attached to stories published last year about voter ID legislation, spokesman Greg Foster said. "They said, 'Y'all are on the right track.' There was a lot of public support."