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January 11, 2012


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Rick Hasen

Under section 5, the covered jurisdiction bears the burden of showing that the proposed change does not have the purpose, and will not have the effect, of making members of the protected minority group worse off than they were before the change in the law. To me, this disparity means that, at least at first cut, South Carolina cannot prove no discriminatory effect.

Whether this is still a constitutional burden upon South Carolina is a separate question. But it appears that DOJ is right based upon the common understanding of the meaning of section 5.

Calvin Massey

One can't determine whether minority voters are "worse off than they were before the change in the law" without consideration of the effect of all the alternative methods in the law that preserve the franchise for all voters (minority and otherwise).

Rick Hasen

Absolutely true. But South Carolina put forward that evidence and DOJ did not think it sufficient to overcome the state's burden. That determination will now be tested in court, as it should be if the state doubts DOJ's determination.


In Indiana where I live, getting photo ID is neither easy nor free.

The typical Indiana would-be voter pays $12 for a birth certificate, then $20 for a driver's license, with a renewal fee every 4 years. 60% of those who go to the BMV to get ID are turned away for not having the right paperwork.

I do not know the details of S Carolina's program. Those details would be relevant to whether the program would survive scrutiny under the Crawford test, or under a 24th Amendment analysis. If the program is unconstitutional on some ground, we might be able to avoid the conflict about whether the VRA is constitutional.


"honest vote"? where's the voter fraud these laws are meant to prevent?

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