Washington – Inside and outside a federal courtroom a few blocks from the U.S. Capitol, it appeared to be a rough week for South Carolina’s bid to protect its elections against fraud.
During five days of often dramatic testimony on a disputed voter ID law, a three-judge panel of the U.S. District Court for the District of Columbia repeatedly upheld objections that the state’s lawyers were asking leading questions of their witnesses or prodding them to recount third-party conversations the judges struck down as hearsay.
In a case that, under the Voting Rights Act, hinges partly on whether the voter ID law was motivated by discriminatory intent, the law’s chief architect, state Rep. Alan Clemmons, was compelled to admit he’d responded sympathetically to a racist email sent to him about the measure as he was crafting it.
And Marci Andino, executive director of the State Election Commission, testified that her agency lacked the legal authority to impose on county election boards and poll workers a uniform standard on how to implement some of the disputed law’s key provisions.
Her testimony troubled the judges, who noted that it was at odds with what she and other South Carolina officials had said earlier in documents and depositions for the trial about how the law would be handled.
South Carolina Attorney General Alan Wilson signaled another potential shift by the state on Friday when he said voters without required photo IDs should not have to pay for completing “reasonable impediment” affidavits required by the law. Separate state law requires affidavits to be notarized, which normally carries a fee.
“We would consider it unconstitutional for notaries to charge,” Wilson said.
That new stance may have been in response to courtroom claims by the voter ID law’s opponents that notary fees would amount to a poll tax, among the most odious of the Jim Crow practices used for decades in Southern states to prevent African-Americans from voting.
Outside the courtroom, a different group of federal judges delivered disappointing news for advocates of voter ID laws.
On Thursday, a separate three-judge panel of the court ruled that Texas’ voter ID law was illegal because it violated the Voting Rights Act, the landmark law Congress passed in 1965 to enforce the constitutional right of African Americans and other minority voters to cast ballots and have them count.
Evidence and testimony in the South Carolina trial, some of which lawyers for the state tried unsuccessfully to strike from the record, could lead to similar conclusions. The state’s law, which would require voters to present one of five forms of photo identification, was blocked by the Justice Department under the Voting Rights Act, prompting the lawsuit by South Carolina against U.S. Attorney General Eric Holder.
Among the most stunning moments of this week’s trial also could weaken South Carolina’s cause.
Garrard Beeney, a New York lawyer and lead attorney for the national civil rights groups that intervened in the case against the state, asked a clearly uncomfortable Clemmons whether he considered it racist to liken potentially disenfranchised South Carolinians to “a swarm of bees going after a watermelon” – part of the email to which the legislator had blessed with an “amen.”
When Clemmons dodged the question twice, Beeney bore in:
“Third time, sir. Is it racist or not in your view?”
Finally Clemmons conceded, “There is certainly a shade of racism there.”
And on Friday, state Sen. John Scott, who was both the only Democrat and the only African-American on the conference committee that finalized the law’s language, testified about what he saw as the motivation behind the measure.
Asked whether he thought Republican legislators intended to suppress the black vote, he responded: “I do. I really and truly do. I believe that.”
Time will tell whether the judges view as legally material the statement by Clemmons, the author of a law that, as required by the Voting Rights Act, cannot have been driven by discriminatory intent toward African-Americans.
But there were other moments in the trial that appeared to test the judges’ patience.
The judges gently upbraided Andino for what they criticized as her changing accounts of how her agency would implement the law.
After Andino testified that the State Election Commission couldn’t tell local election workers how to implement the law, she wavered on when they should give the benefit of the doubt to voters who lacked photo ID under the new law and signed an affidavit under its “reasonable impediment” exception.
“The number of exceptions made on reasonable impediment . . . may make this law fundamentally different from how it was portrayed to us,” said Judge Brett Kavanaugh, who sits on a federal appellate bench and is filling in on the district panel for the case.
One moment of pique came when the panel told Christopher Bartolomucci, a former White House lawyer for President George W. Bush who is representing South Carolina, to stop putting words in the mouths of his witnesses.
“Come on, Mr. Bartolomucci, I’m sure you know how to do this,” said U.S. District Judge Colleen Kollar-Kotelly, the trial’s presiding judge.
With the Texas ruling and a week of mixed trial results behind it, South Carolina’s best hopes may lie with the U.S. Supreme Court.
Any appeals of federal district court rulings must, under the Voting Rights Act, bypass the federal appellate bench and go directly to the high court. If the district court judges reject the South Carolina voter ID law, the Supreme Court could consolidate it with the Texas law and rule on both together.
For now, lawyers trying to defeat South Carolina’s law pronounced themselves quite satisfied.
“We believe that the evidence presented during the trial overwhelmingly establishes that if the law goes into effect, it will disenfranchise thousands of minority persons in South Carolina, and that the purpose of the law was indeed to accomplish precisely this effect,” Beeney told McClatchy.
Wilson’s assessment was more subdued.
“I am pleased we had the opportunity to present our case to the court,” he said.