Lottie Spencer started registering voters about four decades ago, when she was inspired as a young woman to join the Civil Rights movement. Now 71, after living her whole life in Sumter County, South Carolina, she said she’s seen the impact of the new photo requirement for voters up close. She’s been talking to voters about getting the necessary photo identification, a requirement state lawmakers have championed as a way to protect the integrity of state elections. But voters in Lottie Spencer's county see something else: an effort to shut them out.
“This time is the hardest time to get people to register to vote because of this photo id,” Spencer said in a recent phone interview. “It’s making them feel like it’s too difficult to do it, and it’s making people feel like I’ve been voting all these years, and why now do I have go through all of this?”
South Carolina is one of five states that passed new photo ID requirements for voting since the start of 2011, according to the National Conference of State Legislatures (Governors vetoed similar bills in New Hampshire, North Carolina, and Minnesota.). Advocates for the bill in South Carolina, including Republican Gov. Nikki Haley, say the law is to protect the integrity of state elections. Critics, however, are that there has not been a single documented case of voter impersonation at the polls, the kind of fraud photo identification requirements will address.
Now, the Obama administration's Justice Department has weighed in, questioning whether the new law creates undue burdens minority voters. That sets up a legal confrontation about voting access and states rights that will unfold in the shadow of the 2012 presidential campaign, and directly impact who can cast a vote in South Carolina's decisive early primary elections.
Additional Protections or Unnecessary Hurdle?
Identification is already required under federal law for new voters registering by mail, as part of the Help America Vote Act that passed after the 2000 election. In that case, though, a utility bill or paycheck suffices for identification, not just a valid photo identification. In South Carolina, even before this bill was passed, voters were required to present identification, but one of the accepted forms was a voter registration card.
And this just doesn’t apply to new voters — perhaps some of whom have been voting for years. More than 178,000 registered voters in South Carolina did not have driver’s license or other identification issued by the DMV, according to 2010 numbers from the South Carolina Election Commission. (The state is in the midst of an outreach campaign to bring that number down, and new data will be released later this month.) Sixty percent of those voters are white, it’s the 35 percent of voters who are black that could get the state in trouble with the federal government, since the Voting Rights Act polices discrimination by race specifically.
In Lottie Spencer’s county, where 45 percent of residents are black and 19 percent are below the poverty line, more than 8 percent of registered voters didn’t have photo ids in 2010. Republican Rep. Morrell Smith represents the county in the legislature and has donated legal services to a handful of voters who’ve needed help getting the proper paperwork. He voted for the bill and continues to defend it.
“I just think that's what's commonplace now, and we just need to bring our voting laws into he modern era and make sure we have elections that are clean and fair,” he said. After doing it a few times, he admits that lining up the voters get the necessary paperwork does take some digging to verify someone’s identity with the state vital statistics department if they don’t have birth certificates, but after doing it a few times, it’s very doable with assistance.
“I don't think it's causing much of a hurdle,” he said. “It's just guiding people through that process. To me, that's been the problem I guess, for people who are unaware of the system.”
That's where law opponents see a red herring dressed up as innocuous good government law. For rural, low-income or older voters, Charleston attorney Armand Derfner said these kinds of administrative processes can quickly add up to keeping voters from the polls. He’s worked on voting access cases since he headed to Mississippi in the days after the passage of the Voting Rights Act. He is urging the Justice Department to block this law in South Carolina, along with groups including the American Civil Liberties Union, the League of Women Voters.
“You go and register, and then you still have to do something else,” Derfner said in a phone interview. “You have to go to the Department of Motor Vehicles unless you have a passport. That’s two things. And when you go to the Department of Motor Vehicles, you’ve got to bring a birth certificate. That’s three things. Every one of the little things adds up.”
The Question of Voter Fraud
Gov. Nikki Haley signed the voter ID bill in May during the first legislative session after a Tea Party-backed campaign for the statehouse.
“I have heard from people out of state, how impressed they are that we took it upon ourselves to say, we are going to make sure make sure we maintain the integrity of our voters,” Haley said. “If you can show a picture to buy Sudafed. If you can show a picture to get on an airplane, you should be able to show a picture to make sure that we make sure what is incredibly inherent in our freedoms, and that is the ability to vote.”
But a central question – whether the integrity of South Carolina elections was at risk of being compromised – has a murky answer at best.
It's also a highly political one that’s been at a fever pitch going back to the Bush administration. Studies of voter fraud have never turned up a systemic problem of voter impersonation at the polls, but some haven’t eliminated the possibility either. A 2006 report by the federal Election Assistance Commission hedged and called for more study, which created a political scandal of its own when Democratic senators alleged the agency suppressed findings for political reasons.
Voter fraud was also at the center of the U.S. Attorney firing controversy that resulted in Attorney General Alberto Gonzalez’ resignation. A Justice Department Inspector General report concluded in 2008 that “the real reason for [New Mexico U.S. Attorney David] Iglesias’s removal were the complaints from New Mexico Republican politicians and party activists about how Iglesias handled voter fraud and public corruption cases in the state.”
The Supreme Court acknowledged the potential of voter fraud to when it upheld Indiana’s photo ID requirement in 2008. Writing for the majority, Justice John Paul Stevens noted that “occasional examples have surfaced in recent years” and instances of fraudulent absentee ballot use in Indiana “demonstrate that no only is the risk of voter fraud real but it could affect the outcome of an election.”
Justice Stevens also noted, however, that “the record contains no evidence of any such fraud actually occurring in Indiana at any time in its history.”
Justin Levitt, a political scientist who has studied voter fraud, testified to a Senate hearing last week that Indiana’s experience is in keeping with the national trends. The kind of in-person fraud that is prevented by requiring photo id is “notable for their rarity.” He pointed to a survey since 2000 that found nine possible instances of such fraud nationwide, out of 400 million votes cast in general elections.
“It is as if individuals were complaining about littering, but could find no garbage in the street,” Levitt told the Senate judiciary subcommittee. “For those believing in impersonation at the polls, the answer is that this sort of fraud is simply difficult to detect.”
The Coming Partisan Battle
South Carolina is a reliable red state—John McCain won the state by nine points in 2008—but as the third state in the country and the first southern state to vote in the primary season, election returns in South Carolina have huge national importance. (Though Obama did not win come close to winning the state, a side-by-side comparison of the counties he won, alongside the counties with high percentages of voters without photo IDs shows some considerable overlap.)
The Attorney General in South Carolina who would defend any legal challenges to this law is Alan Wilson. He was elected Attorney General of South Carolina in the same election that brought Nikki Haley into the governor’s mansion, and is the son of Rep. Joe Wilson (R-SC), who rose to national prominence after yelling “You Lie!” during the 2010 State of the Union.
And he’s pledged to stand up to the federal government on this bill. "I can tell you we won't lay down on this," the Orangeburg Times and Democrat quoted Wilson telling a county Republican fundraiser last month. Taking on the president was a central talking point in his campaign, which included an ad where he called himself “the only one we can trust to stand up to Barack Obama.” Wilson's office did not respond to requests for an interview.
And President Barack Obama’s administration has to sign off on this law. South Carolina is one of nine states, mostly southern, that must submit voting law changes to the federal government for approval to ensure the new rules don’t have the effect of adversely hurting voters of color. It’s a requirement created by the 1965 Voting Rights Act, and as part of the Voting Rights Act to make sure they don’t.
The Justice Department sent a list of questions back to the state last month for more information about its potential impact, the state enlisted the help of Paul Clement, former Bush administration solicitor general, who’s defended such high profile laws last he federal Defense of Marriage Act and Arizona’s immigration bill. That response is due today.
This is a debate that fits into all the most highly charged debates of our time about states rights and the role of the federal government. And where some in South Carolina see a common sense approach to preventing possible abuse, Charleston attorney Armand Derfner sees cynical politics.
"The bottom line is, this is not accidental," he said. As he talked from his office, he dug up a favorite citation from a political science journal article from 1967, two years after the Voting Rights Act passed. The electorate who turns out to cast votes is not random, it concluded. "They can be political artifacts," he read. "That is, within limits, they can be constructed to size and composition deemed desirable by those in power." Derfner paused a beat. "And that's what's going on here."
Lottie Spencer also connects the roots of this law back to the 1960s. After organizing voters in her rural southern town for more than half her life, she sees a law with race at its core.
“I feel sad and hurt because I think, when are they ever going to stop? All of our lives, scrambling and scrambling, trying to make it, trying to just to be independent and be respectable as human beings,” she said. “They don’t want 2012 to be like 2008.”