What the law requires

Voters must present one of five forms of valid and current photo identification:S.C. driver’s licenseOther form of photo ID issued by the S.C. Department of Motor VehiclesPassportMilitary photo ID issued by the federal governmentS.C. voter-registration card with photoVoters who fail to produce identification at the polls:Voters who cite any “reasonable impediment” would be allowed to cast provisional ballots if they first sign affidavits detailing the obstacles that prevented them from obtaining identification. County election officials then are required to accept the ballots unless they have “grounds to believe the affidavit is false,” according to the law.

Gov. Nikki Haley’s administration will push ahead with the state’s controversial voter ID law for the Nov. 6 general election if it wins federal approval to do so anytime before the polls open.

Voting Rights Act dictates Justice must approve voting changes

Under the 1965 Voting Rights Act, the U.S. Department of Justice must pre-clear, or approve, any changes to voting laws in South Carolina and other mostly Southeastern states with histories of discriminating against minority voters. When it struck down South Carolina’s law in December, the Justice Department said it would disproportionately disenfranchise minorities who lack valid identification.In an effort to uphold the law, South Carolina filed suit against the federal government in February.S.C. Gov. Nikki Haley, S.C. Attorney General Alan Wilson and most Republican lawmakers say the law is necessary to prevent voter fraud. They 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.Wilson claimed in January that “953 dead people voted in recent elections,” but state officials later backed off that statement, saying nearly all the errant ballots stemmed from clerical errors and not voter fraud.An investigation by the S.C. Law Enforcement Division intended to clarify the situation remains open, SLED spokeswoman Kathryn Richardson said last week. SLED opened the probe in January.Texas, another state requiring pre-clearance from the federal government for new voting laws, also is involved in a suit to preserve the voter ID law it passed last year. The trial for that case, filed in January, is in progress this week.By Renee Dudley

The decision, revealed in new federal court filings, comes despite disagreement and uncertainty about how the measure would be implemented.

The 2011 law, which requires voters to present any one of five forms of official photo identification at the polls before voting, was struck down by the U.S. Justice Department in December and is at the center of a suit filed by the state in February.

S.C. Deputy Attorney General Robert Cook said in a June 29 opinion that the law would take immediate effect upon approval by a three-judge panel hearing the case in U.S. District Court in Washington.

The ruling is not expected until late September at the earliest. That would leave the State Election Commission with about a month to educate voters and polling staff about the new requirements and clarify logistical questions.

Voters will have recourse, according to Cook’s opinion.

Voters who lack identification at the polls in November would be able to cite the tight time frame as a “reasonable impediment” for failing to obtain proper photo ID, Cook wrote in the opinion.

According to the law, voters citing reasonable impediments would be allowed to cast provisional ballots if they first sign affidavits briefly detailing the obstacles that prevented them from obtaining identification. County election officials are required to count those ballots unless they have “grounds to believe the affidavit is false,” the law says.

Haley has called the voter ID law one of her marquee achievements since taking office.

Last week Haley spokesman Rob Godfrey declined to answer questions about the reasonable impediment exception and other issues that arose in the federal court filings.

“In preparation, we’ve offered to assist the state election commission’s voter-education efforts — including declaring September voter-education month and utilizing our far-reaching social media platforms to assist with it,” he said in a statement.

Lingering uncertainty about the law has left some legal observers questioning its value.

“What’s the point?” said Columbia attorney Herb Louthian, a board member of government watchdog Common Cause South Carolina. “The whole thing sounds silly.”

Confusion

The logistics of how the law would be enforced remain unclear.

The state has no plans to staff polling stations with notaries to take affidavits, State Election Commission Executive Director Marci Andino and commission training director Chris Whitmire said in June depositions. But other state witnesses — including Republican state Reps. Alan Clemmons of Myrtle Beach and James Harrison of Columbia — testified that the so-called reasonable impediment provision of the law could not be implemented without notaries.

On Friday, Whitmire said the poll managers who would be taking the affidavits are under oath to follow all U.S. election laws.

“That gives it some — that gives it legitimacy,” Whitmire said. “If the court ruled or the AG’s office said in an opinion that we have to have notaries, I think we could make that happen.”

Beyond that question, opinions vary about what generally constitutes a reasonable impediment, according to June depositions of Andino, Harrison and other lawmakers including S.C. House Speaker Bobby Harrell.

Harrell, a Charleston Republican, testified that “just about anything” could constitute a reasonable impediment.

Asked during her deposition whether the excuse “I didn’t feel like it” would count as a reasonable impediment, Andino confirmed the vote would be counted “unless the county board of election had evidence to believe that the person was not telling the truth when they said they didn’t feel like it.”

But Harrison disagreed, saying he did not consider that excuse to be a reasonable impediment. And S.C. Sen. Larry Martin, a Pickens Republican, said he did not consider a reasonable impediment to be “whatever a voter claims.”

Reached Monday, Martin took issue with the looser definition of “reasonable impediment” that Andino and Harrell offered.

“It undermines the whole premise of the law,” Martin said. “That bothers me. ... We probably ought to revisit it.”

J. Michael Bitzer, who has followed South Carolina politics for two decades and now teaches political science at Catawba College in Salisbury, N.C., lamented the confusion.

“Unless you’re crystal-clear (in the law), this becomes the type of mud that election officials and bureaucrats have to operate in,” Bitzer said.

Timeline

Haley stood by the law, calling it a “common-sense reform.”

“We continue to believe voter ID ... will help more, and not fewer, South Carolinians vote and also secure the electoral process,” Haley spokesman Godfrey said in his statement. “As we’ve said all along, that’s a great thing.”

In his letter, Cook justified his opinion to proceed with the measure saying the state must “balance the Legislature’s interest and desire to have the law go into effect immediately … with the fundamental right to vote.”

Andino testified that the state needs federal approval by Aug. 1 to give people who lack proper identification a “reasonable amount of time” to obtain ID before the November general election. A court decision by that date, however, would have been nearly impossible even before the judges issued a rescheduling order last week.

South Carolina’s case originally was scheduled to be heard by the three-judge panel in late July and early August. But S.C. Senate Assistant Clerk Michael Hitchcock made mistakes during discovery that led to a nearly two-month delay. Oral argument now is scheduled for Sept. 24.

About 30 recordings containing 65 hours of legislative debate “directly relevant” to the case didn’t surface until late June because Hitchcock “did not perform a sufficiently thorough or timely search and did not provide to Counsel all responsive recordings, contrary to Counsel’s request,” an attorney for the state wrote in a June 27 affidavit explaining the error.

Reached Tuesday, Hitchcock said the oversight was “nothing but a miscommunication.”

The recordings surfaced after Martin and then-S.C. Sen. Glenn McConnell, now the lieutenant governor, said in depositions that committee meetings during which voter ID and its predecessor bill were debated had been recorded.

The state said it would provide the court with transcripts of the newly discovered recordings by July 4, and S.C. Attorney General’s Office spokesman Mark Plowden confirmed Friday that had taken place.

Late last month, discovery was reopened. At least eight more depositions, including some of people who already were deposed, are being scheduled, records show.

Reach Renee Dudley at 937-5550 or on Twitter @renee_dudley.