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South Carolina Will Sue DoJ Over Voter ID Law

I’m not terribly concerned about the potential Senate Republican lawsuit over President Obama’s recent recess appointments. I am substantially more concerned about this challenge from South Carolina over their voter ID law, yet another challenge to the pre-clearance provisions in Section 5 of the Voting Rights Act.

South Carolina will sue the administration of President Barack Obama over its rejection of the state’s new requirement that voters provide a photo ID, Attorney General Alan Wilson said on Tuesday.

“We intend to file a suit against the Department of Justice in D.C. District Court within the next week or two,” Attorney General Alan Wilson told a news conference in the state capital of Columbia with Republican Governor Nikki Haley and legislative leaders.

The Obama administration blocked South Carolina’s new law that requires voters to have photo identification because of concerns it would hurt minorities’ ability to cast a ballot. The administration action means voters will not have an ID to vote in the January 21 South Carolina Republican presidential primary.

The question is how this lawsuit will take shape. Other states have voter ID laws, and the Supreme Court ruled them constitutional with respect to Indiana (though that was a divided decision). The difference in South Carolina is that they are one of the mostly Southern states with a prior history of voter discrimination where the Justice Department must clear their voter laws. An expansive complaint may argue that the ensuing 50 years now make the Voting Right Act pre-clearance provisions unnecessary and even unconstitutional. So we’ll have to wait for the argument.

There was some thought that the Texas redistricting case which the Supreme Court heard this week would challenge Section 5 of the VRA, but thankfully that did not come to pass. I’m not so sure there will be such luck in this South Carolina case, however.

And that means that five Justices could plausibly throw out one of the few checks on southern states to suppress minority votes. Presumably South Carolina would want to use this voter ID law in the general election, so I’d expect an expedited ruling. That just adds on to a tumultuous year on the Supreme Court, with extremely consequential opinions scheduled to get handed down.

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David Dayen

David Dayen