COLUMBIA — South Carolina counties could be forced to rule on thousands of provisional ballots on a single day in November if a panel of federal judges rules in favor of the state’s controversial voter ID law.
In addition, voters without an acceptable identification casting those ballots could have to spend a day at a hearing defending their vote against a prospective challenge.
The scenario raises questions about how counties will handle the high volume of provisional ballots and whether challenges of them can be assessed fairly, according to political experts.
“It’s a nightmare of administrative hearing process that unless they just accept them all with multiple different reasons and do it across the board, this has chaos written all over it,” said Michael Bitzer, a political science professor at Catawba College and a longtime observer of Palmetto State politics.
The S.C. Attorney General’s Office and the S.C. State Election Commission, which will be responsible for putting the law in place if cleared, say voter ID can be implemented properly and on time.
Democrats and civil rights groups opposing voter ID disagree.
The new questions surrounding the 2011 law are a result of the state’s evolving plans for application before the Nov. 6 general election.
South Carolina filed a lawsuit after the U.S. Department of Justice’s December rejection of the measure.
The Justice Department said the law would disproportionately affect minority voters who don’t have any of the five forms of photo identification accepted under the law.
A three-judge panel hearing the state’s case in U.S. District Court in Washington heard testimony last week. Closing arguments are set for Sept. 24, six weeks before the election.
A ruling is expected any time after the arguments. If the judges rule against the law, the state is expected to appeal to the U.S. Supreme Court.
In June court filings, the state rolled out a plan to allow voters without one of the forms of acceptable ID to cast provisional ballots.
Those voters would have to cite a “reasonable impediment” that kept them from obtaining an ID and sign an affidavit.
State court filings state such an impediment could include any circumstances related to physical, medical or transportation issues or the short time frame in between implementation and the election.
More than 200,000 registered S.C. voters lack a driver’s license or state ID card, according to estimates by the state.
Under the voter ID law, county election officials would have to count the provisional ballots unless officials have reason to believe the affidavit is false.
That’s where questions about the process arise.
According to state law, any registered South Carolina voter — such as a poll watcher representing a candidate at a voting location — can challenge any number of provisional ballots on the basis that the voters didn’t actually have a reasonable impediment.
Counties will rule on provisional ballots on Nov. 9, three days after the election, before certifying the election results later that day, said Election Commission spokesman Chris Whitmire.
Whitmire said all voters who cast provisional ballots will be handed a notice of the hearing on the ballots that includes the location, time and date of the proceeding.
But voters won’t know when or if their ballot is being challenged or be able to defend it unless they show up at the hearing, according to testimony by state election officials.
County officials will make their own judgments on the validity of challenged provisional ballots.
Whitmire said that while the Election Commission provides training and procedures, county election commissions are not subordinate to the state.
“We can’t force them to follow our direction,” he said. “With that said, our experience is that in the vast majority of cases, the county election commissions follow SEC guidance.”
Mark Tompkins, a political scientist at the University of South Carolina, said counties having discretion on ballots raises the possibility that the standards will be applied differently.
“It just magnifies the concerns that have been raised about lack of a common, fair standard for making these kinds of judgments,” he said.
“The fact that something as ambiguous as this is coming up now suggests that the matter requires further study and further consideration. It casts a dark shadow over the whole process.”
Bitzer, the Catawba professor, said the procedures are a “recipe for lawsuits” from voters over differing applications of the law regarding provisional ballots.
Bryan Stirling, a spokesman for the Attorney General’s Office, said the state has fully addressed the federal panel’s questions about the law in filings, and they speak for themselves.
He said it would be inappropriate to comment further while the case is ongoing.
Election Commission Executive Director Marci Andino declined an interview request on the instruction of legal counsel.
Rob Godfrey, a spokesman for Gov. Nikki Haley, said the governor’s office has offered to assist the state’s efforts to educate voters on the ID law that will be launched if the measure is cleared,
But he did not respond to a question about whether there is enough time before the election to implement the voter ID law in a fair and effective fashion.
Haley is a strong supporter of the measure and has cited it as a key accomplishment by the state during her first 20 months in office.
Reach Stephen Largen at 864-641-8172 and follow him on Twitter @stephenlargen.