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Why South Carolina's Voter ID Suit Could Be Bound For The Supreme Court

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The suit has been in the works for awhile, with South Carolina announcing their intention to take their case to court nearly a month ago, following DOJ's Dec. 23 decision to block what the state calls a "voting-fraud prevention legislation."

Clement didn't respond to TPM's interview request, but Clement's signature alongside that of South Carolina Attorney General Alan Wilson is a signal that some conservatives hope this will be the case that kills Section 5 of the Voting Rights Act.

Under Section 5 of the VRA, states like South Carolina that have a history of racial discrimination are required to have changes to their voting laws precleared by either Justice Department lawyers or by a panel of judges in D.C. The measure was originally supposed to be temporary when the act first passed in 1965 but was again extended by Congress in 2006 and isn't due to sunset until 2031.

The complaint South Carolina filed Tuesday doesn't take on Section 5 directly, but the constitutionality issue does come up. Clement's brief argues that South Carolina is barred from implementing a law "almost-identical" to a law passed in a state not covered by Section 5 "solely because it is covered by Section 5--based on nearly 50-year-old evidence of discrimination that was remedied long ago."

South Carolina argues in the lawsuit that photo ID measures "are not a bar to voting but a temporary inconvenience no greater than the inconvenience inherent in voting itself." The state argues that that provisions of the law which provide for exemptions to the rule (if a voter has a religious objection to having their photo taken, for example) help "render any temporary disparity in the racial composition of the group of individuals without qualifying voter IDs entirely transitory and mitigate any minor inconveniences placed upon the voters."

Law professor Rick Hasen wrote that South Carolina's suit, to his surprise, does not raise "directly or forcefully" the Section 5 constitutionality issue. "Paragraph 36 raises a constitutional avoidance argument, but this is much less confrontational than I expected given Gov. Haley and others' language against the DOJ decision," he wrote.

Samuel R. Bagenstos, who formerly served as Principal Deputy Assistant Attorney General in the Civil Rights Division, said that the entire point of legislation that applies to only some states (such as Section 5) is that "it will sometimes make conduct unlawful in those states that would be lawful in others."

The remedy, Bagenstos wrote, "can't be to 'interpret[]' or 'constru[e]' Section 5 so that it never creates the situation in which conduct is unlawful in covered states when it is lawful in others."

"To do so is to effectively decide that Section 5 is unconstitutional without going through the necessary analysis -- or having the guts -- to actually come out and say the statute is unconstitutional," he wrote in an email.

DOJ has yet to make a decision about a voter ID law in Texas because they said the state hadn't provided enough information for them to determine whether the law had a discriminatory impact. But Texas went ahead and sued the government in an attempt to force them to approve their law.

While the government has yet to respond to the suit from Texas, civil rights lawyer J. Gerald Hebert has intervened on behalf of Texas voters who say they would be disenfranchised by the law. Texas residents Eric Kennie, Anna Burns, Michael Montez, Penny Pope, Marc Veasy, Jane Hamilton, David de la Fuente, Lorraine Birabil, Daniel Clayton, and Sergio DeLeon all said they "potentially will be impaired and impeded in the protection of their rights" if the voter ID law passed. Some of the individuals say they don't have the form of photo ID covered under the law, others say that the name in the voter registration database contains a different form of their names.