WASHINGTON - A lot was happening on Oct. 13, 2016. The presidential race was taking another unexpected turn, baseball teams were vying to go to the World Series and singer-songwriter Bob Dylan won the Nobel Prize.
There might have been no better time for the Department of Homeland Security to quietly transmit a memo to five state agencies - including the South Carolina Department of Motor Vehicles - to inform them their time was up.
Starting Jan. 30, 2017, South Carolina IDs and driver’s licenses that don’t conform to “REAL ID” standards won’t be accepted for entry into federal buildings, nuclear power plants and military bases.
Starting Jan. 22, 2018, those same ID cards won’t be sufficient for boarding a commercial airplane.
And the federal government let state officials know they'd be delinquent.
“DHS’s review found that South Carolina has not committed to meeting all remaining requirements and has not provided adequate justification for continued noncompliance,” the agency wrote to S.C. Department of Motor Vehicles Executive Director Kevin Shwedo.
This decision comes after DHS already granted several extensions to South Carolina, the first of which was secured in 2008 by then-governor and now-U.S. Rep. Mark Sanford.
Today the task falls on his successor, Gov. Nikki Haley, to stave off a scenario where life and travel for state residents could soon become full of hassles and inconveniences, particularly those who don’t have U.S. passports, the easiest alternative form of identification in lieu of a REAL ID.
Sanford, meanwhile, is spearheading the official coordinated response from the state's congressional delegation, picking up a policy battle in Washington, D.C., he might have thought he'd left behind in Columbia.
Both politically and practically speaking, the options are limited.
What is REAL ID?
The REAL ID was established by Congress in 2005 based on recommendations following the Sept. 11, 2001, terrorist attacks.
Members of the 9/11 Commission saw the need to develop a single, uniform identification system. Driver’s licenses and government-issued ID cards should be consistent across all states, making them harder for bad actors to replicate. There should be additional levels of identity verification at the state and federal level to make sure each applicant for an ID or license is a law-abiding citizen or permanent resident of the United States.
There wouldn't be a literal "national database" of personal information, as some critics continue to fear, but state Departments of Motor Vehicles should be able to share information on individuals with other entities if necessary, proponents argued.
The states would be required to implement these changes and pay the lion’s share of the estimated $17 billion price tag.
The concept was controversial, with federal lawmakers reluctant to go on the record supporting or opposing the issue outright.
Ultimately, legislation to create the REAL ID mandate was tucked away as a provision of a massive spending bill to fund other federal programs, effectively letting members of Congress off the hook. Of the current members representing South Carolina on Capitol Hill, only U.S. Reps. Jim Clyburn and Joe Wilson and U.S. Sen. Lindsey Graham were in office at the time. They all voted for the bill.
South Carolina went on to become one of the states where the uproar over the REAL ID was most profound. By 2007, the state Legislature had actually passed a law forbidding South Carolina agencies from developing a REAL ID. Haley, then a member of the state House of Representatives, voted for that law. So did then-state Reps. Mick Mulvaney and Jeff Duncan, Republicans who joined Congress in 2011.
Sanford took a lead in fighting back against the federal statute. He had run for governor on a platform of fiscal discipline, civil liberties, small government and states’ rights. Basically, the REAL ID Act was an affront to all of the principles he held dear.
In 2008, Sanford used the newly-passed state law as leverage. In a five-page letter to then-DHS Secretary Michael Chertoff, Sanford said South Carolina had no intention of complying with the entirety of the REAL ID mandate.
He also took issue with the characterization that South Carolina was not working towards meeting REAL ID standards. He noted that even in the years prior to the REAL ID’s creation, South Carolina was electronically verifying social security numbers for individuals seeking driver's licenses and government ID cards, plus verifying proof of U.S. citizenship and authorized residency. Sanford called South Carolina's ID system among “the most secure … in the country."
Chertoff interpreted Sanford’s letter as a request for an extension to meet the new identification guidelines, which he granted. Subsequent extensions have led to where South Carolina sits today in the eyes of DHS: out of excuses for being out of step.
Challenges ahead
Nearly a decade later, state agencies appear to be taking a measured approach in their response to this new DHS directive.
Haley’s press secretary, Chaney Adams, told The Post and Courier “the governor’s office will continue to follow” the 2007 law prohibiting the state’s compliance with REAL ID.
“State officials, however, will meet with the Department of Homeland Security to discuss the security of South Carolina’s driver’s licenses and identification cards in order to make sure our citizens are not inconvenienced by any federal mandate,” Adams continued.
A representative from the S.C. DMV offered a nearly identical statement.
It’s not clear what compromise could be reached, though, with both sides disinclined to budge. In the event Haley decides it’s in South Carolina’s best interest to comply with the REAL ID statute, it could be necessary to overturn or at least significantly revise the existing state law. There’s no guarantee the state Legislature would have the appetite to take on that fight.
In 2008, a few weeks before Sanford and Chertoff reached their agreement to extend the state's compliance deadline, then-S.C. DMV executive director Marcia Adams said producing a REAL ID would cost local government $16 million up front and $10 million in recurring funds to maintain the program.
The members of the South Carolina Congressional delegation who responded to The Post and Courier’s requests for comment shared a common sentiment that this would all work out one way or another – though they didn’t specify how, or when.
None suggested there should be an effort to upend the state’s decisive action in 2007.
“Each state is capable and should be trusted to administer (its) own identification program,” said U.S. Sen. Tim Scott, R-S.C. “I am confident our state officials will determine the best past forward for South Carolina.”
Few missed an opportunity to needle the Obama administration.
“I note with irony the federal government's insistence that proper identification be used to travel and access government and this administration's opposition to state laws requiring a photo be shown to vote,” U.S. Rep. Trey Gowdy, R-S.C., said.
“I find it remarkable that DHS would punish states like South Carolina which are adopting common sense security policies, but do practically nothing to crack down on sanctuary city policies and turn a blind eye to the dangers of the refugee resettlement program,” said Duncan. He did concede he’d be willing to support a change to the federal law if it would ease the burden on the Palmetto State.
Sanford said the recent DHS directive represented “a power play by the (Obama) administration to grab as much as they can before they close up shop.”
He has penned another letter, this time asking DHS Secretary Jeh Johnson, for an extension until Oct. 10, 2017, for South Carolina as the other noncompliant states recently targeted by DHS: Oklahoma, Kentucky, Pennsylvania and Maine. He is circulating the draft letter for signatures among members in these states’ delegations.
The letter likely won’t be sent until after the election, when the bulk of signatures can be collected. There’s no timetable for Haley’s meeting with state and federal officials.
Meanwhile, the clock is ticking.
“As we continue to implement the phased enforcement of the REAL ID Act,” the DHS officials wrote to the S.C. DMV back on Oct. 13, “the consequences of continued noncompliance will grow.”