In a letter to South Carolina's attorney general's office last December, the U.S. Department of Justice had said that the law, known as Act R54, would exert a discriminatory hardship on African American voters because they are less likely to have the required photo identification than white voters are. Under Section 5 of the Voting Rights Act of 1965, which was passed to defeat racist "Jim Crow" laws that barred blacks from voting, South Carolina must "pre-clear" any major voting-law changes with the DOJ.
The department's refusal to pre-clear was based on the original South Carolina law passed in 2011. The law as it now stands is considerably different. A key element is that it allows a person without one of the allowable forms of photo ID to vote anyway if they sign an affidavit saying they are who they say. Judge Brett Kavanaugh wrote:
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.In a concurring opinion, the two other judges in the case noted that the DOJ was right to step in when it did to block the law and that the pre-clearance provisions of the Voting Rights Act proved their efficacy by spurring South Carolina legislators to change their original proposal so that it could meet pre-clearance muster. Attorneys general in Alabama, Arizona, Georgia, South Carolina, South Dakota and Texas have filed a brief in an Alabama case that challenges the constitutionality of Section 5.
A spokeswoman for the Department of Justice emailed an official response on the panel's ruling to The Wall Street Journal:
The Department of Justice is pleased that the court has denied preclearance of the South Carolina law for the 2012 elections. With regard to future elections, the Department welcomes the court’s agreement that South Carolina’s law required broad modifications in order to respond to the serious concerns raised by the Attorney General that the law as written would exclude minority voters. We also agree with the court’s observation that this shows the continuing need for Section 5 of the Voting Rights Act. The court’s preclearance of the law for future elections is expressly conditioned on South Carolina’s binding promise that all qualified voters without photo ID will still be allowed to vote without additional burden. If the law—as modified by South Carolina during the course of the trial—takes effect for future elections, the Attorney General intends to monitor its implementation closely to ensure compliance with the court’s order.