                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA

____________________________________
                                             )
STATE OF SOUTH CAROLINA,                     )
                                             )
                   Plaintiff,                )
                                             )
          v.                                 )
                                             )
UNITED STATES OF AMERICA, and                )       Civil Action No. 12-203
ERIC HIMPTON HOLDER, JR. in his              )       (BMK) (CKK) (JDB)
official capacity as Attorney General of the )
United States,                               )
                                             )
                   Defendants,               )
                                             )
                   and                       )
                                             )
JAMES DUBOSE, et al.,                        )
                                             )
                   Defendant-Intervenors. )
                                             )


    Before:       KAVANAUGH, Circuit Judge; KOLLAR-KOTELLY, District Judge; and BATES,

District Judge.

    Opinion for the Court filed by Circuit Judge KAVANAUGH, with whom District Judge

KOLLAR-KOTELLY and District Judge BATES join.

    Concurring opinion filed by District Judge KOLLAR-KOTELLY.

    Concurring opinion filed by District Judge BATES, with whom District Judge KOLLAR-

KOTELLY joins.




                                                 1
                                 MEMORANDUM OPINION

       KAVANAUGH, Circuit Judge: This case concerns South Carolina’s new voter ID law, Act

R54. The question presented is whether that new state law is lawful under the federal Voting

Rights Act. As relevant here, Section 5 of the Voting Rights Act bars state laws that have either

the purpose or the effect “of denying or abridging the right to vote on account of race or color.”

42 U.S.C. § 1973c(a). The effects prong of Section 5 of the Voting Rights Act measures a

State’s proposed new voting law against the benchmark of the State’s pre-existing law.

       For several decades, South Carolina has had a voter ID law. Under the version of the law

in effect since 1988, a voter must show a South Carolina driver’s license, DMV photo ID card, or

non-photo voter registration card in order to vote. Under that pre-existing South Carolina law, a

voter with a non-photo voter registration card need not show a photo ID in order to vote. As we

will explain, South Carolina’s new law, Act R54, likewise does not require a photo ID to vote.

Rather, under the expansive “reasonable impediment” provision in Act R54 – as authoritatively

interpreted by the responsible South Carolina officials, an interpretation on which we base our

decision today – voters with the non-photo voter registration card that sufficed to vote under pre-

existing law may still vote without a photo ID. Those voters simply must sign an affidavit at the

polling place and list the reason that they have not obtained a photo ID.

       In addition, Act R54 expands the kinds of photo IDs that may be used to vote – adding

passports, military IDs, and new photo voter registration cards to the driver’s licenses and DMV

photo ID cards already permitted by pre-existing law. Moreover, Act R54 minimizes the burden

of obtaining a qualifying photo ID as compared to pre-existing law. The new law creates a new

type of photo ID – namely, photo voter registration cards – which may be obtained for free at




                                                 2
each county’s elections office. Also, under Act R54, DMV photo ID cards may be obtained at

each county’s DMV office for free; those cards cost $5 under pre-existing law.

       In short, Act R54 allows citizens with non-photo voter registration cards to still vote

without a photo ID so long as they state the reason for not having obtained one; it expands the

list of qualifying photo IDs that may be used to vote; and it makes it far easier to obtain a

qualifying photo ID than it was under pre-existing law. Therefore, we conclude that the new

South Carolina law does not have a discriminatory retrogressive effect, as compared to the

benchmark of South Carolina’s pre-existing law. We also conclude that Act R54 was not

enacted for a discriminatory purpose. Act R54 as interpreted thus satisfies Section 5 of the

Voting Rights Act, and we grant pre-clearance for South Carolina to implement Act R54 for

future elections beginning with any elections in 2013. As explained below, however, given the

short time left before the 2012 elections, and given the numerous steps necessary to properly

implement the law – particularly the new “reasonable impediment” provision – and ensure that

the law would not have discriminatory retrogressive effects on African-American voters in 2012,

we do not grant pre-clearance for the 2012 elections.



                               I. Legal and Factual Background

A. The Voting Rights Act and Act R54

       The Voting Rights Act of 1965 is among the most significant and effective pieces of

legislation in American history. Its simple and direct legal prohibition of racial discrimination in

voting laws and practices has dramatically improved the Nation, and brought America closer to

fulfilling the promise of equality espoused in the Declaration of Independence and the

Fourteenth and Fifteenth Amendments to the Constitution.



                                                 3
        Section 5 of the Voting Rights Act requires certain States and political subdivisions –

including South Carolina – to obtain pre-clearance of proposed changes in state or local voting

laws. Pre-clearance must be obtained from the U.S. Attorney General or from a three-judge

court of the U.S. District Court for the District of Columbia. 42 U.S.C. § 1973c(a). The Section

5 pre-clearance requirement seeks to ensure that the proposed changes “neither ha[ve] the

purpose nor will have the effect of denying or abridging the right to vote on account of race or

color” or membership in a language minority group. Id. The effects prong of Section 5

examines the effects of a State’s proposed new law on minority voters, as compared to the

benchmark of the State’s pre-existing law.

        Pursuant to the Voting Rights Act, South Carolina here seeks pre-clearance of Act R54,

South Carolina’s new voter ID law. 1

        South Carolina’s pre-existing voter ID law has been in place since 1988. That law has

required voters to present one of three forms of ID at the polling place: (i) a South Carolina

driver’s license, (ii) a South Carolina DMV photo ID card, or (iii) the non-photo voter

registration card given to all registered voters in South Carolina.

        On May 11, 2011, the South Carolina General Assembly passed Act R54, and Governor

Nikki Haley then signed it into law. The stated purpose of the law is “to confirm the person

presenting himself to vote is the elector on the poll list.” Act R54, § 5. The law adds three forms of

qualifying photo ID to the list of photo IDs accepted under pre-existing law. The full list of

qualifying photo IDs now includes not only (i) a South Carolina driver’s license and (ii) a South




    1
      South Carolina seeks pre-clearance of Sections 4, 5, 7, and 8 of Act R54; the Attorney General
already pre-cleared the sections of Act R54 that are independent of the voter ID requirement.

                                                  4
Carolina DMV photo ID card, but also (iii) a passport, (iv) a federal military photo ID, and (v) a

new free photo voter registration card. 2

        Under Section 4 of Act R54, new photo voter registration cards may be obtained for free

in person from county elections offices. 3 There is at least one elections office in each of South

Carolina’s 46 counties. The photo voter registration card may be obtained by presenting the

citizen’s current non-photo voter registration card. Or a citizen who is already registered to vote

may verbally confirm his or her date of birth and the last four digits of his or her Social Security

number. Or, consistent with the Help America Vote Act, Pub. L. No. 107-252 (2002) (codified

at 42 U.S.C. §§ 15301-15545), a citizen may present any photo ID, utility bill, bank statement,

government check, paycheck, or other government document that shows his or her name and

address.

        Under Section 6 of Act R54, DMV photo ID cards may now be acquired for free from

county DMV offices. Under pre-existing law, those cards cost $5. There is at least one DMV

office in all 46 counties, and more than one DMV office in some of the more populated counties.

To obtain the free DMV photo ID card, the voter must go to a DMV office and present proof of

South Carolina residency, U.S. citizenship, and Social Security number. Such proof typically

requires a voter to present, among other things, either a birth certificate or a passport. The

documents required to obtain a DMV photo ID card are not changed from pre-existing law.

    2
       Act R54 requires that the qualifying photo ID be valid and current; pre-existing law stated that it
must be valid.
     Under Act R54, if a voter possesses an acceptable form of photo ID but arrives at the polling place
without it, the voter may of course go home and come back with the photo ID. Or the voter may cast a
provisional ballot at the polling place. That provisional ballot will be counted so long as the voter
presents his or her photo ID to the county board of elections before certification of the election, which
occurs on a statutorily set deadline a few days after election day. Act R54, § 5.
     3
       To be clear, Act R54 adds a new free photo voter registration card; it does not eliminate the non-
photo voter registration card. See Act R54, § 4. Under Section 2 of Act R54, which has already been pre-
cleared by the Department of Justice, citizens who register to vote will continue to be issued a non-photo
voter registration card.

                                                    5
        Importantly for our purposes, Act R54 still permits citizens to use their non-photo voter

registration cards to vote, as they could under pre-existing South Carolina law.               Act R54

provides that if a voter has “a reasonable impediment that prevents the elector from obtaining

photographic identification,” the voter may complete an affidavit at the polling place attesting to

his or her identity. Act R54, § 5. To confirm the voter’s identity to the notary (or, in the case of

a notary’s unavailability, to the poll manager) who witnesses the affidavit, the voter may show

his or her non-photo voter registration card. The affidavit also must list the voter’s reason for not

obtaining a photo ID. Together with the affidavit, the voter may cast a provisional ballot, which

the county board “shall find” valid unless it has “grounds to believe the affidavit is false.” Id.

So long as the voter does not lie about his or her identity or lie about the reason he or she has not

obtained a photo ID, the reason that the voter gives must be accepted by the county board, and

the ballot must be counted. As we will explain further below, state and county officials may not

review the reasonableness of the voter’s explanation (and, furthermore, may review the

explanation for falsity only if someone challenges the ballot). Therefore, all voters in South

Carolina who previously voted with (or want to vote with) the non-photo voter registration card

may still do so, as long as they state the reason that they have not obtained a photo ID. 4

        In order to educate voters and election officials about the new law’s effects, Section 7 of

Act R54 requires the South Carolina State Election Commission to “establish an aggressive voter

education program.” Among other things, the Commission must post information at county

elections offices, train poll managers and poll workers, coordinate with local and service

organizations, advertise the changes in South Carolina newspapers, and disseminate information

through local media outlets. The law also requires “documentation describing the changes in this

    4
       Relatedly, if a voter does not produce one of the required photo IDs on election day because of “a
religious objection to being photographed,” the law expressly provides that the voter may fill out an
affidavit to that effect and cast a provisional ballot. Act R54, § 5.

                                                   6
legislation to be disseminated by poll managers and poll workers” on election day. Act R54, §

7(3). In advance of the elections, the Commission must also notify each registered voter who

does not currently have a driver’s license or DMV photo ID card of the law’s effects and of the

availability of free photo IDs.

       Section 8 of the Act requires the Commission to distribute a list of registered voters

without a driver’s license or DMV photo ID card to third parties upon request. That provision is

designed to assist outside groups that want to help voters obtain the necessary IDs and educate

voters about the law.



B. Act R54’s Reasonable Impediment Provision

       At first blush, one might have thought South Carolina had enacted a very strict photo ID

law. Much of the initial rhetoric surrounding the law suggested as much. But that rhetoric was

based on a misunderstanding of how the law would work. Act R54, as it has been authoritatively

construed by South Carolina officials, does not have the effects that some expected and some

feared. As we have outlined, Act R54 has several important components: It allows three

additional forms of qualifying photo IDs; it makes it far easier to obtain qualifying photo IDs

than it was under pre-existing law; and it contains a significant reasonable impediment provision

that allows registered voters with non-photo voter registration cards to vote without photo IDs,

so long as they fill out an affidavit at the polling place and indicate the reason that they have not

obtained an R54-listed photo ID.

       Of course, the initial rhetoric surrounding this case arose in part because of a key

unanswered question at the time of Act R54’s enactment: namely, how would the reasonable

impediment provision be interpreted and enforced? Would it be interpreted restrictively and



                                                 7
force voters – some of whom are poor and lack transportation – to try to obtain new photo IDs?

Or would it be interpreted broadly and allow voters to continue to vote with their non-photo

voter registration cards so long as they state the reason for not having obtained a photo ID? We

know that at least some South Carolina legislators intended the reasonable impediment provision

to be interpreted broadly so as to accommodate voters currently without photo IDs.             For

example, Speaker of the House Robert Harrell testified that the legislature intended the

reasonable impediment provision to be construed “very, very broadly.” Trial Tr. 64:14-15 (Aug.

28, 2012); see also Trial Tr. 63:20-21 (Aug. 27, 2012) (Senator Campsen) (reasonable

impediment provision “is very broad”).        But those directional signals still left ultimate

interpretation to the relevant administrative agencies in the South Carolina Government.

       As this litigation unfolded, the responsible South Carolina officials determined, often in

real time, how they would apply the broadly worded reasonable impediment provision. Two

officials play critical and complementary roles in the interpretation and implementation of Act

R54: the Attorney General of South Carolina and the Executive Director of the South Carolina

State Election Commission. The Attorney General is the chief legal officer of the State, and the

Executive Director of the State Election Commission has principal responsibility for

implementing Act R54’s requirements.        In 2011, the Attorney General of South Carolina

officially interpreted the reasonable impediment provision and listed a variety of situations that,

as a matter of law, would qualify as a reasonable impediment. And at the close of trial, the South

Carolina Attorney General submitted an additional memorandum to the Court addressing several

issues about the reasonable impediment provision. The Court also heard testimony from the

Executive Director of the State Election Commission, Marci Andino. Ms. Andino testified that

she follows the interpretation of South Carolina law offered by the Attorney General of South



                                                8
Carolina. Ms. Andino also furnished specific assurances about how the reasonable impediment

provision would be implemented. The evidence shows that county boards and election officials,

who will be implementing the law on the ground, adhere to guidance from the central State

Election Commission.

       The Attorney General of South Carolina and Ms. Andino have emphasized that a driving

principle both at the polling place and in South Carolina state law more generally is erring in

favor of the voter. See S.C. Responses to the Court’s Questions, Aug. 31, 2012, at 8 (“Ms.

Andino is also correct to resolve conflicting legal requirements in favor of the voter.”); Op. S.C.

Att’y Gen., Aug. 16, 2011, 2011 WL 3918168, at *4 (reasonable impediment provision must be

interpreted in light of “fundamental nature of the right to vote”); Op. S.C. Att’y Gen., Oct. 11,

1996, 1996 WL 679459, at *2 (“[W]hen there is any doubt as to how a statute is to be interpreted

and how that interpretation is to be applied in a given instance, it is the policy of this Office to

construe such doubt in favor of the people’s right to vote.”).

       Most importantly for present purposes, the interpretation of South Carolina law rendered

by the responsible South Carolina officials has established that Act R54 will continue to permit

voting by registered voters who have the non-photo voter registration card, so long as the voter

states the reason for not having obtained a photo ID. As a result, Act R54 will deny no voters the

ability to vote and have their votes counted if they have the non-photo voter registration card that

could be used to vote under pre-existing South Carolina law.

       As the responsible South Carolina officials have confirmed repeatedly, any reason

asserted by the voter on the reasonable impediment affidavit for not having obtained a photo ID

must be accepted – and his or her provisional ballot counted – unless the affidavit is “false.”

Thus, the reasonableness of the listed impediment is to be determined by the individual voter, not



                                                 9
by a poll manager or county board. The reasonable impediment affidavit simply helps to ensure

that voters with non-photo voter registration cards are who they say they are. The purpose of this

provision, by its plain text and as it has been administratively interpreted, is not to second-guess

the reasons that those voters have not yet obtained photo IDs. So long as the reason given by the

voter is not a lie, an individual voter may express any one of the many conceivable reasons why

he or she has not obtained a photo ID.

        As the South Carolina Attorney General determined, a voter may assert, for example, that

he or she lacks a birth certificate, or has a disability, or does not have a car. (The example of

voters who don’t have a car is especially important because one of the main concerns during the

legislative debates was whether citizens without cars would be required to obtain photo IDs.

They are not.) So too, a voter may assert any of the myriad other reasons for not procuring one

of the required photo IDs, such as: I had to work, I was unemployed and looking for work, I

didn’t have transportation to the county office, I didn’t have enough money to make the trip, I

was taking care of my children, I was helping my family, I was busy with my charitable work,

and so on. Any reason that the voter subjectively deems reasonable will suffice, so long as it is

not false. 5 If the affidavit is challenged before the county board, the county board may not

second-guess the reasonableness of the asserted reason, only its truthfulness. As the Attorney



    5
       Although county boards generally cannot second-guess whether the reason given was a “reasonable
impediment” that prevented the voter from obtaining a photo ID, statements simply denigrating the law –
such as, “I don’t want to” or “I hate this law” – need not be accepted. Nor need nonsensical statements
such as, to borrow an absurd example given at trial, “The moon is made of green cheese, so I didn’t get a
photo ID.” The ability of county boards to police the outermost boundaries of the expansive reasonable
impediment provision in this commonsense way does not affect our evaluation of Act R54. As the
Florida three-judge court did, we assess the “reasonable” voter, not a voter who seeks to flout the law.
Florida v. United States, 2012 WL 3538298, at *9 (D.D.C. 2012). That said, a county board’s ability to
police the outskirts of the reasonable impediment provision may not be used as a pretext for
impermissible disenfranchisement or for backing away from the expansive understanding of the
reasonable impediment provision articulated by the responsible South Carolina officials and adopted in
this opinion.

                                                   10
General of South Carolina put it, “unless there is reason to believe the affidavit contains

falsehoods, the vote will ultimately be deemed valid.” Op. S.C. Att’y Gen., Aug. 16, 2011, 2011

WL 3918168, at *4.

       That extremely broad interpretation of the reasonable impediment provision will make it

far easier than some might have expected or feared for South Carolina voters with a non-photo

voter registration card (and without photo ID) to vote as they could under pre-existing law. Yet

the Department of Justice and the intervenors have oddly resisted that expansive interpretation of

Act R54.    They have insisted that the broad interpretation of the reasonable impediment

provision advanced by the South Carolina Attorney General and State Election Commission

contravenes the statutory language. But interpreting the law as the responsible South Carolina

officials have done – to allow the voter’s subjective interpretation of reasonable impediment to

control – is perfectly consistent with the text of Act R54. Recall that under Act R54, a voter may

cast a provisional ballot if he or she has “a reasonable impediment that prevents the elector from

obtaining photographic identification.”     Act R54, § 5.     The county board must find that

provisional ballot valid “unless the board has grounds to believe the affidavit is false.” Id.

(emphasis added). Thus, the plain text of Act R54 provides for county-board review only of the

affidavit’s factual falsity, not of the listed impediment’s reasonableness or unreasonableness. It

is a sound reading of Act R54 – indeed, it could well be the best reading of the statutory text – to

leave the determination of reasonableness up to the voter.         Moreover, we of course owe

substantial deference to a State’s interpretation of state law. Cf. Mullaney v. Wilbur, 421 U.S.

684, 690-91 (1975). We thus accept and adopt, as a condition of pre-clearance, the expansive

interpretation offered by the South Carolina Attorney General and the South Carolina State

Election Commission. And as we will explain, that understanding is central to our resolution of



                                                11
the case. Cf. Florida v. United States, 2012 WL 3538298, at *37 (D.D.C. 2012) (“Accordingly,

our grant of preclearance to the inter-county mover changes is based on our express

understanding that Florida will follow its laws as written and will abide by the representations it

has made to this court.”) (citations omitted).

        What this means is that registered voters who could vote under pre-existing South

Carolina law with a non-photo voter registration card – and who have not secured one of the

qualifying photo IDs – will still be able to vote with the exact same non-photo voter registration

card. The only additional requirement is that those voters will have to fill out an affidavit

attesting to their identity and stating the reason for not having obtained a photo ID, and cast a

provisional ballot.

        The Department of Justice and intervenors contend that Act R54’s affidavit requirement

may negate the efficacy of the reasonable impediment provision.              We disagree.      Act R54

provides that voters who list a reasonable impediment must be permitted to vote if they complete

the affidavit. See Act R54, § 5. Another provision of South Carolina law directs that affidavits

be notarized. See S.C. Response to U.S. Request for Admission No. 19. As this affidavit

requirement will be implemented, however, it will not burden the right to vote.

        To witness the affidavits, notaries will be at the polling places. Notaries may not charge

the voter, and notaries will not be able to require photo ID in order to notarize the affidavit

(which otherwise would render the provision a circular absurdity). South Carolina election

officials have determined that a current non-photo voter registration card will suffice to assure

notaries of the voter’s identity. See S.C. Code § 26-3-40 (notary must obtain “satisfactory

evidence” of identity). 6 Notaries may not impose any requirement not permitted under federal


    6
       It is possible that a notary would not even require the non-photo voter registration card to prove
identity and would just rely on the notary’s personal knowledge or on the verification of a credible

                                                   12
law or do anything more than confirm identity. The notary may ensure, for example, that the

voter’s non-photo voter registration card or other ID matches the voter’s name. But as we

interpret South Carolina law, including its voting laws, notaries are not permitted to screen voters

based on the notaries’ evaluations of voter capacity.

        To implement the law, South Carolina may recruit notaries to work at the polls, and it

may encourage poll managers to become notaries. Moreover, if a notary is not available at a

certain polling place, the South Carolina Attorney General has determined that poll managers

may witness reasonable-impediment affidavits, and county election boards will be directed to

count the accompanying provisional ballots. We accept and require, as a condition of pre-

clearance, the South Carolina Attorney General’s reconciliation of competing South Carolina

statutory provisions and the resulting interpretation of Act R54 as not requiring notaries to

witness the affidavits, if a notary is unavailable.



                                               II. Analysis

A. Analysis Under the Effects Test of Section 5 of the Voting Rights Act

        The legal question before the Court is whether Act R54 as so interpreted satisfies Section

5 of the Voting Rights Act. South Carolina has the burden of showing that Act R54 “neither has

the purpose nor will have the effect of denying or abridging the right to vote on account of race

or color.” 42 U.S.C. § 1973c(a). Because the law’s effect will also inform our analysis of

legislative purpose, we begin by assessing whether Act R54 will have a discriminatory effect.

To satisfy the effects prong of Section 5 of the Voting Rights Act of 1965, South Carolina must

demonstrate that implementation of Act R54 will not “lead to a retrogression in the position of

witness. See S.C. Notary Public Reference Manual 3 (2012). What’s important for present purposes is
that the non-photo voter registration card is sufficient to establish identity and vote, as it was under pre-
existing South Carolina law.

                                                     13
racial minorities with respect to their effective exercise of the electoral franchise.” Beer v.

United States, 425 U.S. 130, 141 (1976).              Under Section 5, the new law must not

disproportionately and materially burden racial minorities as compared to the benchmark of the

State’s pre-existing law.

       In practice, the expansive reasonable impediment provision in Act R54 means that every

South Carolina citizen who has the non-photo voter registration card that could be used under

pre-existing South Carolina law may still use that card to vote. That of course includes all of the

intervenor South Carolina citizens. For example, intervenor Delores Freelon does not currently

possess any of the photo IDs listed in Act R54 that are now available. But like all South

Carolina voters, she can vote under Act R54 at her usual polling place with her non-photo voter

registration card and cite any one of the multiple reasons why she has not obtained a qualifying

photo ID: that she does not have an accurate birth certificate, that she does not own a car, or that

she has experienced health problems that have prevented her from traveling. Or she could cite

any other reason she subjectively feels is reasonable, with any potential review by the county

board only for the factual accuracy of her affidavit (and even that limited review occurs only if

someone challenges her affidavit). Put simply, under Act R54, Ms. Freelon does not need to

obtain any R54-listed photo ID to continue to vote in South Carolina elections.

       Moreover, as compared to pre-existing South Carolina law, Act R54 expands the list of

photo IDs that will qualify for voting. In addition to the driver’s licenses and DMV photo ID

cards accepted under pre-existing law, the new law adds military IDs, passports, and new free

photo voter registration cards to the list of permissible IDs.

       On top of that, the new law makes it far easier to obtain a photo ID than it was under pre-

existing law. The law creates the new free photo voter registration card. The law also provides



                                                 14
for free DMV photo ID cards. The free photo voter registration card may be obtained at each

county’s elections office. And the DMV photo ID card may now be acquired for free at each

county’s DMV office. The availability of those cards makes it far easier for registered voters to

obtain a qualifying photo ID than it was under pre-existing South Carolina law.

       In addition, Act R54 requires the State to undertake various outreach and educational

measures to encourage and make it easier for voters without an R54-listed photo ID to obtain

one. The State Election Commission will advertise the law’s changes and the availability of free

photo IDs. To do so, the Commission will use its website and other social media platforms,

newspapers of general circulation, and local media outlets. The Commission will also provide

individual notice to every registered voter without a South Carolina driver’s license or DMV

photo ID card. And it will make a list of the registered voters without such DMV-issued photo

IDs available to other organizations, so as to encourage those organizations to engage in their

own mobilization efforts.

       Under Act R54 as it has been interpreted, we do not find any discriminatory retrogressive

effect on racial minorities under Section 5 of the Voting Rights Act. A state voting law has a

discriminatory retrogressive effect if the law disproportionately and materially burdens minority

voters when measured against the pre-existing state law. See Florida v. United States, 2012 WL

3538298, at *9 (D.D.C. 2012) (“In brief, we conclude that a change that alters the procedures or

circumstances governing voting and voter registration will result in retrogression if: (1) the

individuals who will be affected by the change are disproportionately likely to be members of a

protected minority group; and (2) the change imposes a burden material enough that it will likely

cause some reasonable minority voters not to exercise the franchise.”); Texas v. Holder, 2012

WL 3743676, at *13 (D.D.C. 2012) (“Texas can prove that SB 14 lacks retrogressive effect even



                                               15
if a disproportionate number of minority voters in the state currently lack photo ID. But to do so,

Texas must prove that these would-be voters could easily obtain SB 14-qualifying ID without

cost or major inconvenience.”).

         Here, about 95% of South Carolina registered voters possess one of the R54-listed photo

IDs. But the evidence reveals an undisputed racial disparity of at least several percentage points:

About 96% of whites and about 92-94% of African-Americans currently have one of the R54-

listed photo IDs.      That racial disparity, combined with the burdens of time and cost of

transportation inherent in obtaining a new photo ID card, might have posed a problem for South

Carolina’s law under the strict effects test of Section 5 of the Voting Rights Act absent the

reasonable impediment provision.

         But even though the South Carolina law – absent the reasonable impediment provision –

may have run into problems under Section 5, the sweeping reasonable impediment provision in

Act R54 eliminates any disproportionate effect or material burden that South Carolina’s voter ID

law otherwise might have caused. To repeat, under pre-existing law, citizens could vote without

a photo ID only if they showed their non-photo voter registration card. Under Act R54, all

citizens may still vote with that non-photo voter registration card, so long as they state the reason

for not having obtained a photo ID. In addition, the new law both increases the number of

qualifying photo IDs and makes it far easier to obtain a photo ID. Therefore, as so designed, Act

R54 will not materially burden voters and will not have a discriminatory retrogressive effect on

minority groups as compared to pre-existing South Carolina law. 7




     7
      South Carolina has represented that, as required by Act R54, it will notify voters about the law.
This will include notice that voters with non-photo voter registration cards may continue to vote without
photo ID so long as, at the polling place, they sign an affidavit that attests to identity and lists the reason
they have not obtained a photo ID.

                                                      16
         To ensure that the reasonable impediment provision operates as intended, there is also the

question of how the voter who wishes to vote with a non-photo voter registration card will

inform poll workers of the voter’s reason for not obtaining a photo ID. The text of Act R54

simply requires a voter to “list the impediment” that prevented him or her from obtaining a photo

ID. Act R54, § 5. State Election Commission officials have worked on a draft form that voters

would complete at the polling places; the draft form has boxes that can be checked and leaves

two blank lines for voters with non-photo voter registration cards to explain the reason that they

have not obtained a photo ID. At the same time, South Carolina has repeatedly informed the

Court that the purpose of Act R54 is to make sure that the voter is who he or she says, and not to

improperly deter voters with non-photo voter registration cards from voting. In order to achieve

South Carolina’s stated purposes and to ensure that the reasonable impediment process does not

disproportionately and materially burden minority voters in violation of the Voting Rights Act,

South Carolina agrees that the process of filling out the form must not become a trap for the

unwary, or a tool for intimidation or disenfranchisement of qualified voters.              Therefore,

consistent with the laundry list of reasons that South Carolina has told the Court will qualify as a

reasonable impediment, the form at a minimum must have separate boxes that a voter may check

for “religious objection”; “lack of transportation”; “disability or illness”; “lack of birth

certificate”; “work schedule”; “family responsibilities”; and “other reasonable impediment.”

The form will require a further brief written explanation from the voter only if he or she checks

the “other reasonable impediment” box on the form. So implemented, the process of listing the

reason and filling out the form will not constitute a material burden for purposes of the Voting

Rights Act.      We base our decision today on that understanding of how the law will be

implemented. 8
    8
        Throughout the proceedings, South Carolina has repeatedly emphasized to the Court that it will

                                                  17
        The reasonable impediment provision thus operates similarly to a requirement that the

voter without photo ID simply sign an affidavit stating that the voter is who he or she says.

That’s noteworthy, because the Department of Justice has concluded that requiring such

affidavits does not pose a material burden on the right to vote for Section 5 pre-clearance

purposes.    See Letter from T. Christian Herren, Jr., Chief, Voting Section of Civil Rights

Division of U.S. Department of Justice, to J. Gerald Hebert and Stephen B. Pershing (Sept. 4,

2012) (pre-clearing New Hampshire’s voter ID law, which requires an affidavit from voters

without photo IDs). Indeed, some opponents of strict photo voter ID laws have proposed such

affidavits as an alternative to strict photo voter ID requirements. See America Votes Act, H.R.

6419, 112th Cong. (2012) (proposed bill permitting eligible voters to sign an affidavit if they do

not have a state-required ID). It turns out that, as authoritatively interpreted, South Carolina’s

reasonable impediment provision strongly resembles the kind of affidavit requirement that the

Department of Justice has agreed would not materially burden the right to vote.

        It is true that citizens who vote with non-photo voter registration cards will cast

provisional ballots, not regular ballots. But the word “provisional” is a bit of a misnomer in this

instance. These ballots must be counted and will be counted, at least so long as the voter does

not lie when he or she fills out and signs the reasonable impediment affidavit. Counting the

reasonable impediment ballots will not differ in substance from the counting of absentee ballots.

When the provisional ballot process operates in this way, casting a provisional ballot instead of a

regular ballot does not burden the right to vote. See Florida, 2012 WL 3538298, at *33-38.

        It is also true that, at the polling place, the process of filling out the reasonable

impediment affidavit and casting the provisional ballot may take a few minutes more than the

implement the reasonable impediment process in a way that alleviates material burdens, as determined by
the Court. As described here, the process of completing the form at the polling place will not constitute a
material burden.

                                                    18
regular ballot. On the other hand, in some situations this provisional ballot process might take a

few minutes less than the regular ballot, if there are long lines for the regular voting machines

and if the polling place uses additional lines for provisional ballots. In any event, under the

precise circumstances of this law and this case, speculation about a few minutes more or less at

polling places depending on respective times for regular ballots and provisional ballots does not

rise to the level of a material burden that could render the entire law impermissible under the

Voting Rights Act – as our fellow three-judge courts in this District have recently concluded in

similar circumstances. See Texas, 2012 WL 3743676, at *10 (“some voter ID laws impose only

‘minor inconvenience’ and present little threat to the ‘effective exercise of the electoral

franchise’ – and would thus be easily precleared under section 5”); see also Florida, 2012 WL

3538298, at *35.

        In addition, a voter who shows a non-photo voter registration card and casts a provisional

ballot is not required to attend the canvassing at the county office when the provisional ballots

are counted. Because the reasonable impediment ballot is presumed valid and because any

challenger can contest a completed affidavit based only on falsity, it would be nearly impossible

for a county board to reject such a provisional ballot as false without first seeking to notify and

hear from the voter. So long as the reasonable impediment affidavit is properly completed and

actually lists a reason for not obtaining a photo ID, the affidavit generally “will be deemed to

speak for itself” and the ballot must be counted. Op. S.C. Att’y Gen., Aug. 16, 2011, 2011 WL

3918168, at *4. 9




    9
       As dictated by the text of Section 5 of Act R54, the South Carolina Attorney General added an
obvious caveat: “Of course, this conclusion assumes there is no basis for a challenge to the ballot other
than the voter did not present a Photo ID at the polls.” Op. S.C. Att’y Gen., Aug. 16, 2011, 2011 WL
3918168, at *4.

                                                   19
       Our overall assessment of this provisional ballot process as ameliorative is strongly

buttressed by the Supreme Court’s evaluation of provisional ballots in Crawford v. Marion

County Election Board. There, the Court stated that any burden created by Indiana’s photo ID

requirement was, “of course, mitigated by the fact that, if eligible, voters without photo

identification may cast provisional ballots that will ultimately be counted.” Crawford v. Marion

County Election Board, 553 U.S. 181, 199 (2008) (binding opinion of Stevens, J.); see also

Texas, 2012 WL 3743676, at *33 (listing provisional ballots for indigent persons as one of the

ameliorative amendments “that could have made this a far closer case”). In other words, the

Supreme Court characterized provisional ballots as curing problems and alleviating burdens, not

as creating problems and imposing burdens.

       Congress has similarly viewed provisional ballots as ameliorative. In the Help America

Vote Act of 2002, known as HAVA, Congress mandated that States establish a provisional ballot

process for certain voters, such as those who have recently moved or who forget to bring their

state-required IDs to the polling place. See 42 U.S.C. § 15482(a). As in Act R54, the HAVA

provisional ballot process entails both casting a provisional ballot and executing a written

affirmation before an election official at the polling place. Id. And like Act R54, HAVA

requires that, if found eligible, voters’ ballots “shall be counted.” Id. So Congress, as well as the

Supreme Court, has viewed provisional ballots of this kind as a legitimate way for citizens to

vote and have their votes counted.

       In addition to Supreme Court and Congressional approval, the landmark Carter-Baker

Report issued in 2005 also expressed a similar view of provisional ballots. A commission led by

former President Jimmy Carter and Secretary James Baker issued a report that described

provisional ballots as “a crucial safety net” in the current electoral system.            BUILDING



                                                 20
CONFIDENCE IN U.S. ELECTIONS: REPORT OF THE COMMISSION ON FEDERAL ELECTION REFORM,

16 (2005). In its proposed reforms, the Carter-Baker Report recommended that voters generally

be required to present photo IDs in order to vote.         But the Report maintained a role for

provisional ballots, suggesting that provisional ballots be made available for those voters who

fail to bring a photo ID to the polls. Those provisional ballots would be counted so long as the

voter’s signature was verified (for the first two federal elections after implementation) or the

voter went to the appropriate election office with the required ID within 48 hours (for all future

elections). This Report, too, supports South Carolina’s use of provisional ballots for voters who

have only their non-photo voter registration cards.

       In sum, we conclude that Act R54, with its expansive reasonable impediment provision,

will not have a discriminatory retrogressive effect on racial minorities in violation of Section 5 of

the Voting Rights Act.



B. Analysis Under the Purpose Test of Section 5 of the Voting Rights Act

       South Carolina also must demonstrate that Act R54 was not passed for “any

discriminatory purpose.” 42 U.S.C. § 1973c(c).

       In evaluating legislative purpose, the Supreme Court has instructed that “courts should

look to” the “decision in Arlington Heights for guidance.” Reno v. Bossier Parish School Board,

520 U.S. 471, 488 (1997). Under Arlington Heights, “an important starting point” to the Section

5 purpose inquiry is the analysis we conducted above of whether the voting change bears more

heavily on minorities – that is, whether the law has discriminatory retrogressive effects under the

effects prong of Section 5. Arlington Heights v. Metropolitan Housing Development Corp., 429

U.S. 252, 266 (1977). Other potential sources of evidence of purpose include the historical



                                                 21
background of the legislative decision, the specific sequence of events leading up to the law’s

passage, departures from the normal legislative procedure, and legislative history, especially

contemporaneous statements by legislators. Id. at 267-68. In order to rise to the level of

discriminatory purpose, the legislature must have “selected or reaffirmed a particular course of

action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects” on a minority

group. Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 279 (1979).

       As an initial matter, the stated purpose of Act R54’s voter ID provisions is “to confirm the

person presenting himself to vote is the elector on the poll list.” Act R54, § 5. South Carolina

legislators have consistently asserted that Act R54 will thereby deter voter fraud and enhance

public confidence in the electoral system. Those are the same purposes that have justified South

Carolina’s pre-existing voter ID law, which has been in place since 1988. And the Supreme

Court has specifically recognized the legitimacy of those purposes: In upholding Indiana’s

stricter voter ID law, the Supreme Court stated that there “is no question about the legitimacy or

importance” of the interest in deterring voter fraud and that there is “independent significance” in

enhancing public confidence in the electoral system. Crawford v. Marion County Election

Board, 553 U.S. 181, 196-97 (2008) (binding opinion of Stevens, J.); see also id. at 196 (“While

the most effective method of preventing election fraud may well be debatable, the propriety of

doing so is perfectly clear.”); id. at 204 (those motives “are both neutral and sufficiently strong”).

Notably, the Supreme Court deemed those interests valid despite the fact that the “record

contain[ed] no evidence of any such fraud actually occurring in Indiana at any time in its

history.” Id. at 194; see also Texas, 2012 WL 3743676, at *12 (“[W]e reject the argument, urged

by the United States at trial, that the absence of documented voter fraud in Texas somehow

suggests that Texas’s interests in protecting its ballot box and safeguarding voter confidence



                                                 22
were ‘pretext.’ A state interest that is unquestionably legitimate for Indiana – without any

concrete evidence of a problem – is unquestionably legitimate for Texas as well.”); Florida,

2012 WL 3538298, at *45 (“the fact that a state has acted proactively to close a loophole in its

election laws . . . does not by itself raise an inference of discriminatory intent”).

        The Supreme Court’s affirmation of the general legitimacy of the purpose behind a voter

ID law is consistent with the fact that many States – particularly in the wake of the voting system

problems exposed during the 2000 elections – have enacted stronger voter ID laws, among

various other recent changes to voting laws. So too, the 2005 bipartisan Carter-Baker Report

also forcefully recommended photo voter ID laws.

        As the Supreme Court concluded with respect to Indiana and as a recent three-judge court

in this District found with respect to Texas, we conclude that South Carolina’s goals of

preventing voter fraud and increasing electoral confidence are legitimate; those interests cannot

be deemed pretextual merely because of an absence of recorded incidents of in-person voter

fraud in South Carolina.

        Act R54 pursues those goals by requiring either (i) a qualifying photo ID or (ii) a

reasonable impediment affidavit from voters who continue to vote with their non-photo voter

registration cards. By allowing voters with non-photo voter registration cards to continue to vote

without photo IDs, South Carolina specifically sought to alleviate the burden on voters who

might not have obtained one of the qualifying photo IDs. At the same time, by requiring an

affidavit, South Carolina sought to enhance the solemnity of the process by which voters without

photo IDs confirm their identities. See, e.g., Trial Tr. 85:17-18 (Aug. 27, 2012) (Senator

Campsen) (affidavits “give some sense of gravity or certainty to the statement that is being

made”).



                                                  23
         When they debated and enacted Act R54, South Carolina’s legislators and Governor no

doubt knew, given the data obtained from the State Election Commission, that photo ID

possession rates varied by race in South Carolina. Under Feeney, legislators’ knowledge of the

law’s potential disproportionate impact does not alone equate to discriminatory purpose. See

Feeney, 442 U.S. at 279. But under Arlington Heights, ongoing legislative action with the

knowledge of such an impact might be some evidence of discriminatory purpose, depending on

the other facts and circumstances. See Arlington Heights, 429 U.S. at 266. Here, we do not need

to thread that analytical needle because, critically, South Carolina legislators did not just plow

ahead in the face of the data showing a racial gap. Presented with that data, South Carolina

legislators did not force everyone to obtain a photo ID in order to vote. Instead, South Carolina

legislators – led by Republican Senator and now Lieutenant Governor Glenn McConnell and

Democratic Senator John Land, who, according to the evidence, are well-respected in the

Assembly by African-American legislators and white legislators, Republicans and Democrats –

made several important changes to the bill. Among those changes was the addition of the

sweeping reasonable impediment provision, which as interpreted by the responsible South

Carolina officials ensures that all voters of all races with non-photo voter registration cards

continue to have access to the polling place to the same degree they did under pre-existing law. 10

The legislators also permitted three new forms of qualifying photo IDs on top of the two already

permitted under pre-existing law. And the legislators made it easier to obtain a qualifying photo

ID: They created a new free photo voter registration card and made DMV photo ID cards

available for free. And the legislators mandated a variety of education and outreach efforts to

inform voters, poll managers, and county officials about the law’s effects.            Those many

    10
       South Carolina legislators drafted the reasonable impediment provision in order to alleviate
burdens on voters without photo IDs. South Carolina did not model the reasonable impediment provision
on any other State’s law.

                                                 24
provisions significantly undermine any suggestion that Act R54 was enacted for a discriminatory

purpose.

       In response, the Department of Justice and the intervenors point to Act R54’s proximity

to the election of the country’s first African-American President, a Republican legislature’s

refusal to accede to some of the Democratic legislators’ amendments, and the bill’s sometimes

rancorous legislative history. But those pieces of circumstantial evidence, even in the aggregate,

do not overcome the central facts that we have described, which convincingly show that Act R54

was not enacted for a discriminatory purpose. When, as here, a law is race-neutral and does not

have a discriminatory effect, it is obviously difficult for a challenger to the law to show that it

was enacted for a discriminatory purpose. A legislature that intended to enact a discriminatory

voting law typically would enact either: (i) a race-based law or (ii) a race-neutral law with

racially discriminatory effects. There is neither here; what is more, there is a lot of evidence,

including in the text of the final law, that reflects legislators’ efforts to avoid discriminatory

retrogressive effects on African-American voters.

       To be sure, we are troubled by one piece of evidence in the record: an email exchange

between a South Carolina constituent and one House member in which the constituent referred

disparagingly to African-American voters who do not have photo IDs. The constituent’s email

demonstrates something we know and do not forget: Racial insensitivity, racial bias, and indeed

outright racism are still problems throughout the United States as of 2012. We see that reality on

an all-too-frequent basis. See, e.g., Tweets Put Focus on Racism, Hockey and Boston, USA

TODAY, April 27, 2012 (describing outburst of racist online comments after African-American

hockey player from opposing team scored winning goal). The long march for equality for

African-Americans is not finished. But the views of one constituent – and one legislator’s failure



                                                25
to immediately denounce those views in his responsive email, as he later testified he should have

done – do not speak for the two Houses of the South Carolina Legislature, or the South Carolina

Governor.

       Of course, we don’t know what we don’t know about the true motivations of every

legislator. But on the record before us, which is quite extensive, that one email does not

overcome key points that, under Supreme Court precedent, must inform proper evaluation of

overall legislative purpose in this context, including that: Act R54 is a facially neutral law and

has no discriminatory retrogressive effects; Act R54 was passed for stated nondiscriminatory

purposes that have been declared valid by the Supreme Court; Act R54 creates new forms of

qualifying free photo IDs and makes it far easier to obtain a qualifying photo ID than it was

under pre-existing law; Act R54 requires a variety of outreach and educational efforts to help

voters obtain the requisite IDs; and Act R54 contains the expansive reasonable impediment

provision that was intentionally designed to relieve any potentially problematic aspects of Act

R54 and allows voters with non-photo voter registration cards to vote as they could before.

       Based on the entire record and the text of Act R54, we cannot conclude that Act R54 was

enacted for a racially discriminatory purpose.



C. Comparison to Other States’ Laws

       Our conclusion that Act R54 lacks discriminatory retrogressive effect or discriminatory

purpose finds further support when we compare South Carolina’s law to some other recently

analyzed voter ID laws, such as those in Indiana, Georgia, New Hampshire, and Texas. The

Indiana, Georgia, and New Hampshire laws have passed legal muster; Texas’s law has not. As




                                                 26
we will explain, if those laws were to be placed on a spectrum of stringency, South Carolina’s

clearly would fall on the less stringent end.

       Like South Carolina, many States have enacted voter ID laws for the stated purposes of

deterring voter fraud and enhancing citizens’ confidence in elections. In some States, however,

minorities disproportionately lack photo IDs. That racial gap has exacerbated concerns about

voter ID laws – in particular, about the burden of obtaining a photo ID and, correspondingly,

about denying voters without photo IDs the ability to vote. To address those and other concerns,

some States have adopted ameliorative provisions in their voter ID laws. Two broad kinds of

ameliorative provisions can reduce the burden on voters who do not possess a qualifying photo

ID. First, the law can make photo IDs readily accessible to voters – for example, by eliminating

fees for such IDs, by expanding the kinds of underlying documentation that may be used to

obtain the IDs, or by making the IDs available at convenient locations. Second, the law can

create some method by which voters without photo IDs can continue to vote on election day,

typically with an affidavit of some kind.

       With its new free photo voter registration card and its broad reasonable impediment

provision, South Carolina’s law includes both kinds of ameliorative provisions. Among other

things, Act R54 contains both (i) a free photo ID provision that allows voters to obtain a free

photo ID, with minimal documentation, in each county, and (ii) an expansive reasonable

impediment exception that allows voters without qualifying photo IDs to still vote. Among

recently pre-cleared or federal court-approved voter ID laws, South Carolina’s law stands out for

having tackled the lack of photo ID possession in both ways. It is not an overstatement to

describe South Carolina’s Act R54 as significantly more friendly to voters currently without

qualifying photo IDs than the voter ID laws in Indiana, Georgia, New Hampshire, and Texas.



                                                27
       First, consider Indiana. In Crawford, the Supreme Court upheld Indiana’s voter ID law

against a constitutional challenge. See Crawford v. Marion County Election Board, 553 U.S.

181 (2008). Although Indiana is not a covered jurisdiction under Section 5 of the Voting Rights

Act, that sole Supreme Court decision on voter ID laws remains instructive. Indiana had neither

kind of ameliorative provision that South Carolina has. Unlike South Carolina, Indiana required

many citizens seeking photo IDs to present a birth certificate – and there generally is a fee to

obtain a birth certificate (between $3 and $12 in Indiana). See id. at 198 n.17 (binding opinion of

Stevens, J.). Moreover, unlike South Carolina, Indiana did not have anything close to the

expansive reasonable impediment provision contained in South Carolina’s Act R54. Indiana

voters without photo IDs could vote a provisional ballot only if they were indigent. And, even

then, those ballots were counted only if those who claimed indigence made a separate trip to the

county seat within 10 days after the election. See id. at 186, 199.

       To be sure, Crawford was not a Section 5 pre-clearance case. But in the Section 5

context, the Department of Justice has pre-cleared two States’ laws – Georgia’s and New

Hampshire’s – that include only one of the two kinds of ameliorative provisions that South

Carolina’s law contains.

       Take Georgia. Put simply, Georgia’s voter ID law does not permit voters who lack

qualifying photo IDs to vote at the polling place. There is no affidavit or reasonable impediment

provision of the kind there is in South Carolina. In Georgia, if you don’t have a qualifying photo

ID at the polling place, you cannot vote. Georgia’s law is, for that reason, significantly more

stringent than South Carolina’s law.       Georgia’s law was nonetheless pre-cleared by the

Department of Justice, upheld by the Eleventh Circuit against constitutional challenge, and




                                                28
recently cited by another three-judge court in this District as having been pre-cleared “probably

for good reason.” Texas, 2012 WL 3743676, at *32. 11

         Next, consider New Hampshire. During the course of this litigation, New Hampshire’s

voter ID law was pre-cleared by the Department of Justice.                  Like South Carolina, New

Hampshire allows voters without qualifying photo IDs to vote: New Hampshire voters who do

not have photo IDs must sign an affidavit attesting to their identity. N.H. Rev. Stat. Ann.

§ 659:13. 12 Unlike in South Carolina, however, New Hampshire state officials are required to do

a follow-up inquiry after election day for every voter who votes without a photo ID. And unlike

South Carolina, New Hampshire does not make free photo IDs readily available. Under New

Hampshire law, a state photo ID card costs $10, unless the voter first obtains a voucher

exempting him or her from the fee. Id. § 260:21(V). In South Carolina, by contrast, the new

photo voter registration card is free.

         Finally, there is Texas. The Texas voter ID law was recently denied pre-clearance by a

three-judge court in this District. The Texas law apparently would have been the most stringent

in the Nation. See Texas, 2012 WL 3743676, at *33 (“The State of Texas enacted a voter ID law

that – at least to our knowledge – is the most stringent in the country.”). Unlike South Carolina,

Texas required many citizens seeking IDs to present a birth certificate – and there generally is a

fee to obtain a birth certificate ($22 in Texas). Id. at *1-2. Moreover, unlike South Carolina,

Texas has many counties that lack a place for voters to obtain qualifying photo IDs, meaning that

    11
        In trying to deal with the fact that Georgia’s law is more stringent than South Carolina’s, the
Department of Justice has pointed out that Georgia allows a variety of forms of ID to qualify for voting.
That’s true but beside the point for the precise issue before us. What matters for these analytical purposes
are the people who don’t have a qualifying photo ID. The number of people without qualifying photo IDs
in Georgia is significant, and when Georgia’s law was enacted, there was a racial gap in voters without
qualifying IDs. Yet in Georgia, those without qualifying photo IDs were not permitted to vote at the
polling place. In South Carolina, they can.
     12
        To be sure, in New Hampshire the voter does not need to check a box identifying the reason why
he or she has not obtained a photo ID, nor is the affidavit notarized.

                                                    29
those voters would have to travel to other counties to get one. Id. at *16. And, most importantly,

unlike South Carolina, Texas did not have any kind of reasonable impediment or affidavit

provision to accommodate those voters who had not obtained a photo ID and wanted to vote.

       In short, the Indiana and Texas laws contained neither kind of ameliorative provision that

the South Carolina law contains. And the Georgia and New Hampshire laws contained only one

of the two kinds of ameliorative provisions that the South Carolina law contains. As a relative

matter, South Carolina’s law imposes less of a burden on voters currently without qualifying

photo IDs than the laws of Indiana, Georgia, New Hampshire, or Texas.

       In addition to comparing South Carolina to those other States’ laws, it is illuminating to

measure South Carolina’s law against the proposed voter ID reforms in the Carter-Baker Report

issued by President Carter and Secretary Baker.       The comprehensive Carter-Baker Report

recommended that States adopt photo voter ID laws, and proposed less accommodation for

voters without photo IDs than South Carolina’s Act R54 provides. The Carter-Baker approach

would make free photo IDs available, but, unlike South Carolina, it would require many citizens

to show a birth certificate in order to obtain an ID. Under the Carter-Baker approach, moreover,

voters without photo IDs would have an unqualified right to vote by provisional ballot for only

the first two elections after implementation; after that, however, provisional ballots would be

counted only if the voters were to make a separate trip to the appropriate election office within

48 hours with a valid photo ID.

       In sum, our comparison of South Carolina’s Act R54 to some other States’ voter ID laws

– as well as to the Carter-Baker Report’s proposed voter ID reforms – strongly buttresses the

conclusion that South Carolina’s law has neither a discriminatory effect nor a discriminatory

purpose. South Carolina’s new voter ID law is significantly more friendly to voters without



                                               30
qualifying photo IDs than several other contemporary state laws that have passed legal muster.

As a matter of precedent, the decisions upholding those other state laws, while not binding on us,

support our conclusion here that South Carolina’s law does not have a discriminatory

retrogressive effect. Moreover, the fact that South Carolina has gone to greater lengths than

those other States to alleviate the burdens of voter ID laws, while not dispositive, tends to

support the conclusion that South Carolina did not act with a discriminatory purpose.

                                              ***

        Based on the above analysis of the purpose and effect of Act R54, we conclude that Act

R54 “neither has the purpose nor will have the effect of denying or abridging the right to vote on

account of race or color” for future elections beginning with any elections in 2013. 42 U.S.C.

§ 1973c(a). Therefore, we pre-clear Act R54 for future elections beginning with any elections in

2013.



                                    III. The 2012 Elections

        Although we pre-clear Act R54 for future elections, there remains the question of the

2012 elections. Those elections occur in just under four weeks. In short, the Court cannot

conclude that Act R54 can be properly implemented in time for the 2012 elections. Therefore,

the Court does not pre-clear the relevant provisions of Act R54 (Sections 4, 5, 7, and 8) for the

2012 elections.

        We have emphasized the importance of the reasonable impediment provision to our

analysis of Act R54 and to our pre-clearance of Act R54 for future elections. But a large number

of difficult steps would have to be completed in order for the reasonable impediment provision to

be properly implemented on November 6, 2012. In the course of just a few short weeks, the law



                                               31
by its terms would require: that more than 100,000 South Carolina voters be informed of and

educated about the law’s new requirements; that several thousand poll workers and poll

managers be educated and trained about the intricacies and nuances of the law, including about

our decision here today; and that county election boards become knowledgeable of the law,

including of our decision here today. New forms need to be created, and notices posted and

mailed, among other things.

       The text of Act R54 strongly suggests that those steps cannot be completed in the short

time before the 2012 elections. The South Carolina legislature established several deadlines for

education and training that indicated the legislature’s belief that implementation of the law

would occur over the course of about 11 months. Under the law, the State Election Commission

had to provide individual notice to registered voters without a DMV-issued ID “no later than

December 1, 2011.” Act R54, § 7(8). The Commission had to place informational notices in

South Carolina newspapers “no later than December 15, 2011.” Id. § 7(6). And the Commission

had to coordinate with county boards and conduct at least two training seminars in each county

“prior to December 15, 2011.” Id. § 7(4). Because the law had not been pre-cleared before now,

South Carolina has not initiated any of those steps.         The statute’s own requirements that

education and training begin nearly a year before the first elections under Act R54 strongly

suggest that those steps cannot be adequately completed in just four weeks.

       Furthermore, the reasonable impediment provision is new, and it will likely require some

explanation to poll managers and poll workers, and to county officials. With under four weeks

left to go, the potential for chaos is obvious. In that regard, we note that South Carolina officials

– while gamely and admirably saying they will try to get the job done no matter what – have

previously told the Court that this is far too late a date for the law to be properly implemented.



                                                 32
For example, Ms. Andino, the Executive Director of the State Election Commission, originally

stated that pre-clearance by August 1 would be needed, while the South Carolina Attorney

General previously opined that full implementation for the 2012 elections could not occur if pre-

clearance came after September 15. To be clear, the Court does not rest its decision on those

prior statements, as those statements may have reflected what was optimal rather than what was

absolutely essential. But those prior statements do add to the overwhelming weight of the

evidence that the Court has carefully sifted through. That evidence convinces the Court that

South Carolina – while acting in all good faith – cannot ensure proper implementation of the

multi-step training and educational process required by its new law, and in particular the critical

reasonable impediment provision, in the few short weeks that remain.

       In deciding not to pre-clear for the 2012 elections, the Court also considers it important

that South Carolina voters without R54-listed photo IDs would have very little time before the

2012 elections to choose the option of obtaining one of the free qualifying photo IDs. For the

future, the new free photo voter registration cards and the free DMV photo ID cards will be long

available in at least two offices in each county. That will create an ameliorative transition period

in which more voters can obtain those IDs, and leave fewer voters to rely on the reasonable

impediment provision. The Supreme Court expressed a similar assumption about the law at

issue in Crawford: “Presumably most voters casting provisional ballots will be able to obtain

photo identifications before the next election.” Crawford v. Marion County Election Board, 553

U.S. 181, 199 n.19 (2008) (binding opinion of Stevens, J.).          Notably, the Supreme Court

assumed as much notwithstanding that Indiana voters needed a birth certificate, passport,

veterans or military ID, or certificate of naturalization in order to obtain a free ID. Id. at 198




                                                33
n.17. By contrast to Indiana, South Carolina provides free photo voter registration cards without

costly underlying documentation.

       And in considering the 2012 elections, keep in mind that Act R54 may not have been pre-

cleared for any elections without the expansive reasonable impediment provision. Again, that’s

because this law, without the reasonable impediment provision, could have discriminatory

effects and impose material burdens on African-American voters, who in South Carolina

disproportionately lack one of the R54-listed photo IDs. Without the reasonable impediment

provision, the law thus would have raised difficult questions under the strict effects test of

Section 5 of the Voting Rights Act. And the reasonable impediment provision carries even

greater importance for the 2012 elections because South Carolina citizens will not have much

time to obtain the new free photo voter registration cards. Because the voters who currently lack

qualifying photo ID are disproportionately African-American, proper and smooth functioning of

the reasonable impediment provision would be vital to avoid unlawful racially discriminatory

effects on African-American voters in South Carolina in the 2012 elections. Even assuming the

best of intentions and extraordinary efforts by all involved, achieving that goal is too much to

reasonably demand or expect in a four-week period – and there is too much of a risk to African-

American voters for us to roll the dice in such a fashion.

       From the outset, the Court has pushed very hard to make a decision in time for the 2012

elections. We set an extremely aggressive trial schedule to accomplish that objective. Counsel

for all parties have worked diligently, which the Court greatly appreciates. Unfortunately, as one

might have anticipated in a case with this many entities involved, the parties ran into some

discovery delays over the summer in trying to obtain relevant information. In the ordinary case,

those minor and typical delays would not have been a big deal. In this case, those discovery



                                                34
delays pushed back the trial date by several weeks, with the voluntary consent of all parties. And

that delay has in turn pushed back our date of decision.

          We need not belabor the point. At this late date, the Court is unable to conclude that

South Carolina can implement Act R54 for the 2012 elections in a way that will suffice under the

Voting Rights Act. 13 However, as indicated above, South Carolina has satisfied its burden for

future elections and may implement Act R54 for future elections, consistent with the

understandings of Act R54 articulated by the responsible state officials and reflected in this

opinion. 14



                                        IV. Future Enforcement

          In reaching our decision to pre-clear Act R54 for future elections, we emphasize that

Section 5 of the Voting Rights Act provides that pre-clearance shall not “bar a subsequent action

to enjoin enforcement of such qualification, prerequisite, standard, practice, or procedure.” 42

U.S.C. § 1973c(a).        If South Carolina were to alter its interpretation of the reasonable

impediment provision, or any other relevant provision of Act R54 – as the law has been

     13
         Some have contended that Section 5’s intrusion on state sovereignty is unconstitutional, at least
under the statutory coverage formula now in place. Invoking the constitutional avoidance doctrine, South
Carolina has suggested that we should therefore construe the effects test of Section 5 of the Voting Rights
Act more narrowly than the statutory text would indicate. But the text and Supreme Court precedent
establish that the effects test of Section 5 is stringent and that a voting law change that disproportionately
and materially burdens minority voters is unlawful. Any argument to narrow Section 5 in this way must
be directed to Congress or to the Supreme Court.
     14
         Enforcing the Voting Rights Act here only prevents implementation of the new voter ID law for
the 2012 elections. This case thus does not raise the Equal Protection Clause issue that can arise when
enforcement of the Voting Rights Act requires States to engage in race-based treatment of individual
voters, as in redistricting cases. See Georgia v. Ashcroft, 539 U.S. 461, 491-92 (2003) (Kennedy, J.,
concurring); Shaw v. Hunt, 517 U.S. 899, 911-16 (1996).
     This case also does not raise the question of how a Section 2 effects challenge to voter ID laws
should be resolved. Section 2 applies throughout the Nation, unlike Section 5, which applies only in
covered jurisdictions. Under the Section 2 effects test (known as the “results” test), the pre-existing state
law is not a benchmark. See Holder v. Hall, 512 U.S. 874, 880-84 (1994) (binding opinion of Kennedy,
J.). It therefore can be more difficult to establish a violation of the Section 2 results test than a violation
of the Section 5 retrogressive effects test. See id. at 883-85.

                                                      35
interpreted by the responsible state officials and described and adopted in this opinion – the State

would have to obtain pre-clearance of that change before applying that new interpretation. See

Young v. Fordice, 520 U.S. 273, 285 (1997) (requiring pre-clearance of “new, significantly

different administrative practices – practices that are not purely ministerial, but reflect the

exercise of policy choice and discretion by Mississippi officials”); NAACP v. Hampton County

Election Commission, 470 U.S. 166, 178 (1985) (holding that “the form of a change in voting

procedures” is not dispositive of the need for pre-clearance, as Section 5 “reaches informal as

well as formal changes”).        Moreover, pre-clearance is required not just for legislative or

administrative changes but also for any changes that might result from South Carolina courts’

interpretations of Act R54. See Riley v. Kennedy, 553 U.S. 406, 421 (2008) (“the preclearance

requirement encompasses voting changes mandated by order of a state court”) (quotation marks

omitted); Branch v. Smith, 538 U.S. 254, 262 (2003) (Section 5 “requires preclearance of all

voting changes” and “there is no dispute that this includes voting changes mandated by order of a

state court”); Lockhart v. United States, 460 U.S. 125, 133 (1983) (“Section 5 was intended to

halt actual retrogression in minority voting strength without regard for the legality under state

law of the practices already in effect.”). 15

         If South Carolina attempts to make such a change without pre-clearance, the Voting

Rights Act authorizes the Attorney General of the United States to bring a Section 5 enforcement

action in federal court. 42 U.S.C. § 1973j(d). And the Supreme Court long ago recognized a

    15
       Of course, Section 5 applies only when South Carolina “enact[s] or seek[s] to administer” a voting
change. 42 U.S.C. § 1973c(a). Thus, any random, unauthorized failure to follow state election law on the
part of a poll manager, county board, or other individual official can be enjoined by a state court as an
ordinary violation of state law. See United States v. Saint Landry Parish School Board, 601 F.2d 859,
864 (5th Cir. 1979) (“one would not normally conclude that a state ‘enacts or administers’ a new voting
procedure every time a state official deviates from the state’s required procedures”). If the state court
does not enforce the law, as outlined and required in this opinion, that would constitute a “change” in
South Carolina law. And the federal courts may act to correct and prevent any such changes in South
Carolina law that occur without pre-clearance.

                                                   36
private right of action that permits individuals to do the same. See Allen v. State Board of

Elections, 393 U.S. 544, 554-55 (1969). We have no doubt that the appropriate federal court

would entertain complaints and issue appropriate injunctions if South Carolina were to narrow

the interpretation of the reasonable impediment provision articulated here without first obtaining

the required pre-clearance of any such change. See, e.g., Butler v. Columbia, 2010 WL 1372299,

at *4 (D.S.C. 2010) (requiring pre-clearance of change resulting from South Carolina Supreme

Court’s interpretation of election statute); Gray v. South Carolina State Election Commission,

2010 WL 753767, at *2-3 (D.S.C. 2010) (requiring pre-clearance of change in State Election

Commission procedures for filing candidate statements).

       In closing, we underscore that all South Carolina state, county, and local officials must

comply with Act R54 as it has been interpreted by the responsible state officials and as it has

been described and adopted in this opinion. Any change in the law as so interpreted would be

unlawful, without pre-clearance from the Attorney General of the United States or from this

Court. We are fully aware, moreover, that what looks good on paper may fall apart in practice.

We expect and anticipate that South Carolina state, county, and local officials will endeavor to

prevent such slippage. Given the concerns powerfully expressed at trial by several African-

American legislators in South Carolina – namely, Representative Gilda Cobb-Hunter, Senator

Gerald Malloy, and Senator John Scott – proper implementation of this law will be important,

both for legal reasons and to maintain South Carolina citizens’ confidence in the fair and

impartial administration of elections.

                                              ***

       In sum, we pre-clear Act R54 sections 4, 5, 7, and 8 for future elections in South Carolina

beginning with any elections in 2013 on the basis of the interpretations and understandings that

have been expressed by the South Carolina Attorney General and the Executive Director of the

                                               37
South Carolina State Election Commission, and that we have adopted in this opinion. We deny

pre-clearance for the 2012 elections.




                                            38
 


       KOLLAR-KOTELLY, District Judge, concurring:           I concur fully in both the Court’s

excellent opinion and Judge Bates’ thoughtful concurrence. I write separately only to emphasize

the importance of the reasonable impediment provision in future elections.

       Experts for both South Carolina and the Defendants agree that as of April 2012,

approximately 130,000 registered voters in South Carolina lacked a photo ID acceptable under

Act R54, and those voters are disproportionately likely to be members of a racial minority. Over

time, this number is reasonably expected to shrink as voters have the opportunity to obtain the

free photo IDs made available under Act R54. However, the photo voter registration card is

unlikely to be the panacea South Carolina portrays it to be simply because this form of

identification is only available if a voter registers in person at the county elections office. New

voters will continue to receive non-photo voter registration cards if they register in person at any

of the myriad of other locations where voter registration is available (including public libraries,

social service departments, and armed forces recruitment centers, depending on the county) or if

the voter registers by mail, and must make a separate trip to the county elections office to obtain

the photo voter registration card. Moreover, although Act R54 eliminated the fee for the DMV

photo ID, it understandably did not alter the underlying documentation requirement. While Act

R54 undoubtedly made it far easier to obtain an acceptable photo ID, some portion of newly

registered voters will likely be forced to rely on the reasonable impediment provision in order to

vote in the 2014, 2016, and other future elections. Thus, any narrowing of South Carolina’s

interpretation of the reasonable impediment provision from what the Court has accepted and

required in its opinion must itself be pre-cleared, not just to comply with the procedural

requirements of the Voting Rights Act, but also because such narrowing may have the real effect

of disenfranchising a group that is likely to be disproportionately comprised of minority voters.



                                                 1 
 
       BATES, District Judge, with whom District Judge KOLLAR-KOTELLY joins, concurring: I

concur fully in the Court’s excellent opinion. I write only to add two brief observations.

       First, to state the obvious, Act R54 as now pre-cleared is not the R54 enacted in May

2011. It is understandable that the Attorney General of the United States, and then the

intervenor-defendants in this case, would raise serious concerns about South Carolina’s voter

photo ID law as it then stood. But now, to the credit of South Carolina state officials, Act R54 as

authoritatively interpreted does warrant pre-clearance. An evolutionary process has produced a

law that accomplishes South Carolina’s important objectives while protecting every individual’s

right to vote and a law that addresses the significant concerns raised about Act R54’s potential

impact on a group that all agree is disproportionately African-American. As the Court’s opinion

convincingly describes, South Carolina’s voter photo ID law, as interpreted, now compares very

favorably with the laws of Indiana, Georgia and New Hampshire, each of which has passed legal

muster through either federal court constitutional review or pre-clearance by the Attorney

General. The path to a sound South Carolina voter photo ID law has been different, given the

essential role of the State’s interpretation of key provisions.

       Which brings me to my second observation – one cannot doubt the vital function that

Section 5 of the Voting Rights Act has played here. Without the review process under the Voting

Rights Act, South Carolina’s voter photo ID law certainly would have been more restrictive.

Several legislators have commented that they were seeking to structure a law that could be pre-

cleared. See Trial Tr. 104:18-21 (Aug. 28, 2012) (Harrell) (“I was very aware at the time that we

were doing this that whatever we would have to do would have to be subject to the Voting Rights

Act because that would be the basis for the Department of Justice preclearing the bill for us.”);

id. at 105:15-18 (“[I] ask[ed] the staff who drafted the bill for me to please make sure that we are



                                                  1
passing a bill that will withstand constitutional muster and get through DOJ or through this

court.”); Trial Tr. 108:23-25 (Aug. 27, 2012) (Campsen) (agreeing that he was “interested in

what voter ID legislation had been precleared” in drafting R54); id. at 148:10-15 (discussing

senators’ statement that “[t]he responsible thing to do was to fix [the bill] so that it would not fail

in the courts or get tripped up by the Voting Rights Act”); Trial Tr. 141:9-12 (Aug. 28, 2012)

(McConnell) (discussing his efforts on behalf of a bill that “had a better chance of getting

preclearance”); id. at 182:18-20 (on the Senate floor “[t]here was discussion about” how “to craft

a bill that would comply with the voting rights amendment”). The key ameliorative provisions

were added during that legislative process and were shaped by the need for pre-clearance. And

the evolving interpretations of these key provisions of Act R54, particularly the reasonable

impediment provision, subsequently presented to this Court were driven by South Carolina

officials’ efforts to satisfy the requirements of the Voting Rights Act.

       Congress has recognized the importance of such a deterrent effect. See H.R. Rep. No.

109-478, at 24 (2006) (finding that “Section 5 encourage[s] the legislature to ensure that any

voting changes would not have a discriminatory effect on minority voters,” and “that the

existence of Section 5 deterred covered jurisdictions from even attempting to enact

discriminatory voting changes” (internal quotation marks omitted)); S. Rep. No. 109-295, at 11

(2006) (finding “some reason to believe that without the Voting Rights Act’s deterrent effect on

potential misconduct” racial disparities in voting “might be considerably worse”). The Section 5

process here did not force South Carolina to jump through unnecessary hoops. Rather, the history

of Act R54 demonstrates the continuing utility of Section 5 of the Voting Rights Act in deterring

problematic, and hence encouraging non-discriminatory, changes in state and local voting laws.




                                                  2
