State AG vows to litigate 'up to U.S. Supreme Court'...
By Ernest A. Canning on 9/2/2011, 8:35am PT  

Guest blogged by Ernest A. Canning

In an Aug. 29, 2011 letter, T. Christian Herren, Jr., Chief of the Obama DOJ's Civil Rights Division, not only demanded that South Carolina, within 60 days, provide additional information about its recently enacted polling place photo ID restriction law, but stated that if SC failed to provide a timely "response...the [U.S.] Attorney General may object to the proposed changes consistent with the burden of proof placed upon the submitting authority."

Herren noted that SC has the "burden of demonstrating" that the new polling place photo ID law was neither enacted "for a discriminatory purpose nor will have a retrogressive effect."

SC's Republican Attorney General, Alan Wilson, in an apparent recognition that pre-clearance is likely to be denied, told those in attendance at a GOP fundraiser that he had "no faith" that the DOJ "will do the right thing." He vowed to litigate the matter "up to the U.S. Supreme Court if necessary."

As The BRAD BLOG previously reported, on Aug. 5 the ACLU submitted a 15-page letter to the U.S. Department of Justice (DOJ) seeking a denial of pre-clearance under Section 5 of the Voting Rights Act of South Carolina’s polling place photo ID restriction law. The letter argues that proponents’ unsubstantiated claims of "voter fraud" were but a pretext for unlawful discrimination and that statistics suggest that the new law would operate as an illegal poll tax, especially for the disproportionate number of African Americans who live below the federal poverty level in the state.

Last Friday, SC's Senate Democrats weighed in as well, asking the DOJ to deny pre-clearance for what they contend is the nation's harshest polling place ID restrictions, which could potentially disenfranchise, for example, someone whose driver's license has been suspended.

While denial of pre-clearance due to the retrogressive effect of photo ID restrictions in SC would be a positive step, it will not serve to protect democracy and the sanctity of the vote in other jurisdictions not subject to pre-clearance under the Voting Rights Act of 1965.

As described by John Nichols in The Nation (see video below), and again by Ari Berman in Rolling Stone --- as we detailed yesterday --- state-after-state across the nation has come under a well-coordinated assault by the corporate-funded American Legislative Exchange Council (ALEC) and GOP legislators bent on rigging electoral outcome as part of their war on the middle class...

'Voter Fraud' as Pretext for Unlawful Discrimination

As we previously reported, the ACLU argued that polling place photo ID restrictions have "the potential to prevent one, and only one, type of voter fraud --- voter impersonation...a person...going to a polling place on Election day, fraudulently requesting a ballot under the name of a qualified voter of that precinct who has registered to vote but has not voted prior to the fraud...The ID requirement will not prevent any other type of fraud, such as double-voting, felon voting, non-citizen voting, absentee fraud, registration fraud, vote buying, or negative vote buying."

The ACLU noted that the GOP proponents of the bill failed to "conduct any studies to determine the existence...of voter fraud" and cited "out-of-state statistics regarding the number of people who are registered in more than one state and the number of felons who are registered to vote" --- statistics that "are irrelevant" because these forms of voter fraud "could not be solved by" the photo ID law.

In support of its claim that GOP charges of "voter fraud" are but a pretext for voter suppression, the ACLU cites an item The BRAD BLOG covered on April 11, 2007 after The New York Times revealed that the Bush-appointed members of the U.S. Elections Commission (EAC) first suppressed and later altered a draft report which concluded that GOP claims of "voter fraud" were vastly overblown --- at best.

The ACLU letter also points to "The Truth About Voter Fraud," the 2007 study by the non-partisan Brennan Center for Justice at NYU Law School "which found that 'voter fraud is extraordinarily rare' but did not find a single incidence of voter impersonation" --- for an obvious reason:

To steal even one vote by impersonation requires the impersonator to go to a precinct where he will not be recognized and the registered voter he intends to impersonate will not be recognized. The impersonator has to know that the registered voter has not already voted either in person or by absentee...

The fact that photo ID restrictions are a solution in search of a problem, coupled with the potential retrogressive impact on voting by the disproportionate number of legally registered African American voters in SC reveals that, contrary to state AG Wilson's remarks, the only "right thing" that the DOJ can do, consistent with its obligations under Section 5 of the Voting Rights Act, is to deny pre-clearance.

Unfortunately, ALEC and the GOP have sought to impose polling place photo ID restrictions in a large number of states. Many are not subject to DOJ pre-clearance.

Thus, even if pre-clearance is denied in SC, the DOJ's reasoning may prove of limited value in those states not subject to Section 5 of the Voting Rights Act.

Absentee Voting as Counter-Measure to Photo ID and Unverifiable DREs

The intriguing feature of the ALEC model of photo ID legislation is that it targets only in-person voting --- ironically, the form of voting in which voter fraud is, far and away, the most rare. Since the legislation does not mandate a photo ID for absentee voting, however, voting absentee by mail may provide the only convenient means for thousands of citizens who would otherwise be disenfranchised altogether.

With or without photo ID, until such time as it sanely applied Democracy's Gold Standard --- hand-marked paper ballots, publicly hand-counted at the precinct level on Election Night --- absentee ballots provide the only means of establishing a verifiable paper record of the vote in the Palmetto State. SC continues to use the 100% unverifiable ES&S iVotronic touch-screen Direct Recording Electronic (DRE) voting systems across the entire state, even after the debacle that saw the unemployed and virtually unknown Alvin Greene reportedly defeat the respected judge and former state legislator Vic Rawl in the 2010 Democratic Primary for U.S. Senate.

As we noted in "Still Clueless About Touch Screens in S. Carolina", the numbers from that storied "election" were beyond absurd. Lancaster County paper absentee ballots, for example, went to Rawl 84% to 16%, while the 100% unverifiable touch-screens in the same county reported that Rawl lost to Greene by 17%.

There are a great number of serious concerns about voting by mail, as we have spelled out many times in the past. However, in jurisdictions such as South Carolina, where only unverifiable DREs are presented to voters at the polling place, or in that state and others where one may need, but not own, a state-approved Photo ID for voting at the polling place, absentee voting may be the best --- or even only way --- for one to cast a vote.

That's what it's come to, at this point, it seems. Though, please note, if you do vote by mail/absentee, please check with your local jurisdiction to see if you are allowed to drop your ballot off, on Election Day, at either the county headquarters or at the polling place, thus increasing the chances that your vote will actually be counted and maybe even counted accurately.

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Video discussion of ALEC/GOP assault on middle class and democracy, including voter suppression, follows, from MSNBC's The Ed Show...

Another discussion of the GOP's assault on voting in South Carolina --- and the extraordinary hoops voters without a Photo ID will now have to jump through in order to cast their legal vote --- follows below from MSNBC's Rachel Maddow Show on 08/31/11, after the DOJ's questions were sent to SC...

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