South Carolina is among the states that must have changes to their voting laws cleared by either the Justice Department or a panel of judges in D.C. under Section 5 of the Voting Rights Act. The state wants its voter ID law to go into effect for the November election.
Lawyers for the state have argued officials there will broadly interpret the so-called "reasonable impediment" provision of the law, which allow voters to cast a ballot if they attest something outside of their control prevented them from obtaining photo identification. The provision is the "only reason this would work for 2012," Bartolomucci said.
But he also added there was a limit to the kinds of reasons voters could give about why they lacked a photo ID.
"That's a personal choice. That's not a reasonable impediment. That's not an obstacle," Bartolomucci said of the "I didn't feel like it" excuse, adding that "Mars is made of green cheese" wouldn't count either.
Judge Colleen Kollar-Kotelly, however, said she wasn't buying the metaphor. "That doesn't help," she told Bartolomucci of the Mars comparison.
Matthew Colangelo of the Justice Department's Civil Rights Division argued that South Carolina's own testimony showed there was no way the law could be fairly implemented given the limited number of days left before the election.
"There's no set of circumstances in which the law can be implemented in 2012," Colangelo argued, pointing out that a state election official testified earlier this year that she would need at least 90 days to implement the law.
Colangelo, summarizing the decision of a separate panel of federal judges on a voter ID law in Texas, said the court found that forcing voters to "choose between their wages and their franchise is impermissible." He argued that the burden forced upon a subset of voters, who Colangelo said were more likely to be African-American by a 2-to-1 margin, to report to a potentially far-flung location wouldn't be permissible under the Voting Rights Act.
Questions from the panel of judges — made up of Kollar-Kotelly, Judge Brett Kavanaugh and Judge John Bates — seemed to indicate that the state's use of the "reasonable impediment" provision would play a key role in their decision.
Garrard Beeney, arguing on behalf of civil rights organizations intervening in the case, also noted that South Carolina law required notaries to determine if someone is intoxicated or on drugs before they signed an affidavit. Given that blacks are less likely to have a form of state-issued identification, he said, the law would lead to them being asked that question in disproportionate numbers at the polls.
"We'd now have, in the polling place, 21,000 human breathalyzers to determine whether someone in eligible to vote," Beeney argued.
Judge Bates agreed, noting that "an even-handed application of 'are you drunk' is going to end up affecting more African-Americans" because of the racial make up of the pool of voters who lack identification.
The way the law was passed also plays a role in the case. Before it was signed by Gov. Nikki Haley (R) in May 2011, Democrats and African-American legislators tried to compromise with Republicans by adding additional forms of acceptable identification and add early voting days. South Carolina argued that the rejection of such provisions from the final law were part of the normal legislative process.
"Now did the Democrats and minorities get everything that they wanted? No, but that's politics and that's the legislative process," Bartolomucci said in his closing arguments. He also argued that early voting "is not a mitigator for voter ID." Voting rights advocates maintain that early voting would give voters who are prevented from voting because they lack ID an opportunity to obtain identification before election day.
The panel of federal judges is expected to issue its decision in October.