Case 1:12-cv-00203-CKK-BMK-JDB Document 157 Filed 08/08/12 Page 1 of 8
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
STATE OF SOUTH CAROLINA,
Plaintiff,
v.
UNITED STATES OF AMERICA and ERIC H. HOLDER, JR., in his official capacity as Attorney General, Case No. 1:12-cv-203 (CKK, BMK, JDB)
Defendants,
and,
JAMES DUBOSE, et al.,
Defendant- Intervenors.
DEFENDANT-INTERVENORS’ MOTION TO STRIKE SOUTH CAROLINA’S DECLARATION AND REBUTTAL EXPERT DISCLOSURE OF DR. SCOTT EUGENE BUCHANAN
Defendant-Intervenors 1 (“Intervenors”) move to strike South Carolina’s
Declaration and Rebuttal Expert Disclosure of Dr. Scott Eugene Buchanan (the “Report”)
(Exhibits A and B), served Monday night, August 6. In yet another example of the State ignoring both this Court’s Orders and the requirements of the Federal Rules of Civil Procedure, the Report is not a rebuttal at all, but rather an opening, supplemental and rebuttal expert report collapsed into a single document by an expert never previously disclosed or included on any witness list. Moreover, the Report – addressing an issue as to which the State bears the burden of proof – was served one and a half months after the deadline for such disclosures. At this late hour, the State knew that its tardiness would prevent Intervenors (and Defendant) from filing
1 Defendants the United States, et al., do not object to the relief sought by this motion. Case 1:12-cv-00203-CKK-BMK-JDB Document 157 Filed 08/08/12 Page 2 of 8
expert rebuttals on the issues Dr. Buchanan raises and from deposing Dr. Buchannan before the
end of the expert discovery period.2
In his report, Dr. Buchanan claims not only that the State has asked him to rebut
the opinions on the discriminatory purpose underlying Act R54 expressed by Defendants’ and
Intervenors’ experts (Drs. Theodore Arrington and Vernon Burton, their initial and supplemental reports attached as Exhibits C - F) (Report at 1), but also that he has been asked to assess
“whether or not South Carolina’s history of racial discrimination will affect the ability of African
Americans to vote under South Carolina’s photo identification law” Id. (emphasis added). The
Report then goes on to address these issues for the first time on the State’s behalf. Tellingly, the
Report fails to discuss Defendants’ or Intervenors’ experts’ disclosures (except in a footnote) in the first third of the Report. If the State wished to provide extensive expert opinions in this area it should have followed the procedure that this Court ordered and filed an initial expert report on
June 19. See June 11, 2012 Order (ECF. No. 100).
The Court’s orders on rebuttal experts have cited by reference Fed. R. Civ. P.
26(a)(2)(D)(ii). See, e.g. Third Revised Scheduling and Procedures Order (ECF No. 121) at 2.
That provision of the Federal Rules explicitly limits rebuttal reports to matters “solely to
contradict or rebut evidence on the same subject matter” of a prior report (emphasis added). Dr.
Buchanan’s Report clearly violates this Rule and the Court’s Orders by including substantial material that is not offered in rebuttal. Indeed, one-third of Dr. Buchanan’s report provides Dr.
Buchanan’s own, previously undisclosed opinions on the history of minority voter turnout, the socioeconomic factors behind voter turnout, and minority voter registration trends. These points
do not even purport to rebut any argument made by Drs. Burton or Arrington on the General
2 Defendants the United States, et al., noticed the deposition of Dr. Buchanan for August 10, the last day of the expert discovery period (ECF No. 121, at 2). However, South Carolina was unable to schedule Dr. Buchanan’s deposition until Thursday, August 16. -2-
Case 1:12-cv-00203-CKK-BMK-JDB Document 157 Filed 08/08/12 Page 3 of 8
Assembly’s purpose behind passing Act R54, but rather go directly to issues properly the subject
of an initial expert report on retrogressive effect – issues on which South Carolina bears the
burden of proof. City of Pleasant Grove v. United States, 479 U.S. 462, 469 (1987) (In a
preclearance action, “[t]he burden of proving absence of discriminatory purpose and effect” is on
the covered jurisdiction.). Moreover, of the seven “Opinions” listed on page 3 of the Report,
only two even mention other experts. The section in the Report entitled “General Rebuttals to
Expert Witnesses Reports of Drs. Burton and Arrington” does not even begin until page 16 of the
Report, and the section entitled “Specific Rebuttals to Expert Witnesses Drs. Burton and
Arrington” does not begin until page 29.
In sum, the Report should be stricken because it is not in any fair sense a true
“rebuttal” report, and Dr. Buchanan’s disclosure as a rebuttal witness should be stricken for the
same reason. See Fuller v. Volvo GM Heavy Truck Corp., 1995 U.S. Dist. LEXIS 11638, 5
(N.D. Ill. Aug. 10, 1995) (granting defendant’s motion for an order barring plaintiff’s newly
identified expert witness because the expert was not offered solely for rebuttal); Jay E. Grenig,
Fed. Civ. Discovery and Disclosure 93 (2010) (The Rule on timing to disclose expert testimony
does contemplate designation of new witnesses, “but only to the extent they are to offer rebuttal
evidence, not merely to supplement the prior opinions of timely disclosed experts.”) Stripped of
its misleading title, Dr. Buchanan’s Report is, in fact, a combined initial, supplemental and
rebuttal report. The Report is not only improper, but prejudices Intervenors and Defendants by,
among other things, (1) expressing opinions that other experts cannot now rebut under this
Court’s scheduling order and (ii) preventing any meaningful opportunity at this late stage of trial
preparation to review the material cited throughout the Report and contest it (The Report
includes 59 “Sources Cited” and a dozen graphs). Although South Carolina elected to disclose
-3-
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Dr. Buchanan’s opinions improperly only in a rebuttal report, striking the disclosure and report
will not leave the State without recourse. The State can use the information gathered in the
report (as it did during Dr. Burton’s deposition) to question Dr. Arrington at his deposition and to question both Drs. Arrington and Burton at trial.
In addition to being replete with opening expert opinions not offered in rebuttal,
the Report is untimely and should be stricken for that reason as well. The Court’s April 26
Scheduling and Procedures Order required the “proponents of any expert testimony [to] serve their disclosures and reports” on June 15 (a date which was later amended to June 19 (ECF No.
100, at 7)). Dr. Buchanan should have been identified and the bulk of his report served at that time. South Carolina served their expert disclosures as required on June 19 and made no mention of Dr. Buchanan. Nor did South Carolina disclose Dr. Buchanan, or the fact that it intended to submit his “rebuttal” expert report, in any of the many communications among counsel negotiating both the expert deposition schedule (set to close on August 10 (ECF No.
121, at 2) and dates of report submissions of the parties’ experts. See, e.g., E-mail threads among counsel of June 24, July 8, and July 12, 2012 (together, Ex. G). Moreover, the Courts’
April 26 Order required that the parties disclose on June 22 “all witnesses, including experts, the party intends to call as a live witness…” (ECF No. 64, at 2.) South Carolina did not list Dr.
Buchanan in either its original or amended notice of intent to call witnesses for live testimony
(ECF Nos. 108, 137). South Carolina served the latter list on July 20, 17 days before serving the
45 page Report. The failure to identify Dr. Buchanan as a trial witness when the State clearly
“intended[ed]” to call him as a witness itself precludes Dr. Buchanan from testifying at trial and renders his report inadmissible. Regardless of whether the State intentionally hid Dr. Buchanan so that Defendant and Intervenors have no meaningful opportunity to explore his new opinions,
-4-
Case 1:12-cv-00203-CKK-BMK-JDB Document 157 Filed 08/08/12 Page 5 of 8
or inadvertently served the Report at this late hour, the Report is untimely and should be
stricken.3
In conclusion, South Carolina’s attempt to add an expert witness a month and a
half after the deadline for the bulk of the opinions he offers deprives Defendants and Intervenors
of the opportunity to rebut Dr. Buchanan’s testimony and otherwise prepare for trial. For the
foregoing reasons, Intervenors request that the Court strike South Carolina’s Declaration and
Rebuttal Expert Disclosure of Dr. Buchanan.
3 South Carolina claims to be adhering to the Court’s Third Revised Scheduling Order (No. 121) which allows the “parties to serve all rebuttal expert disclosures and reports pursuant to Federal Rule of Civil Procedure 26(a)(2)(D)(ii)” by August 6. However, Rule 26(a)(2)(D)(ii) defines rebuttal evidence as “evidence intended solely to contradict or rebut evidence on the same subject matter identified by another party” (emphasis added). As discussed, Dr. Buchanan’s report delves into entirely new subjects (e.g., retrogressive effect) not discussed in the reports he is purporting to rebut. -5-
Case 1:12-cv-00203-CKK-BMK-JDB Document 157 Filed 08/08/12 Page 6 of 8
Dated: August 8, 2012
Respectfully submitted,
/s/Garrard R. Beeney______
Arthur B. Spitzer (DC Bar No. 235960) Jon M. Greenbaum (D.C. Bar No. 489887) AMERICAN CIVIL LIBERTIES UNION OF Mark A. Posner (D.C. Bar No. 457833) THE NATION'S CAPITAL Robert A. Kengle 4301 Connecticut Avenue, NW, Suite 434 LAWYERS’ COMMITTEE FOR Washington, DC 20008 CIVIL RIGHTS UNDER LAW (202) 457-0800 1401 New York Ave. NW (202) 457-0805 (fax) Ste. 400 [email protected] Washington, DC 20005 Tel: (202) 662-8389 Laughlin McDonald Fax: (202) 628-2858 Nancy Abudu [email protected] Gerry Hebert AMERICAN CIVIL LIBERTIES UNION Michael A. Cooper (pro hac vice) FOUNDATION, INC. Garrard R. Beeney (pro hac vice) 230 Peachtree Street, N.W., Suite 1440 Peter A. Steciuk (pro hac vice) Atlanta, GA 30303-1227 Taly Dvorkis (pro hac vice) (404) 523-2721 Theodore A.B. McCombs (pro hac vice) (404) 653-0331 (fax) Sean A. Camoni (pro hac vice) Susan Dunn SULLIVAN & CROMWELL LLP AMERICAN CIVIL LIBERTIES UNION OF 125 Broad Street SOUTH CAROLINA New York, NY 10004-2498 P.O. Box 20998 Tel: (212) 558-4000 Charleston, SC 29413 Fax: (212) 291-9007 [email protected] [email protected]
Attorneys for Defendant-Intervenors James Wendy R. Weiser (pro hac vice) Dubose, et al. Keesha M. Gaskins (pro hac vice) Mimi Marziani (pro hac vice) Debo P. Adegbile (D.C. Bar No. NY0143) Elisabeth Genn (pro hac vice) Elise C. Boddie THE BRENNAN CENTER FOR JUSTICE Ryan P. Haygood (D.C. Bar No. NY0141) AT NYU SCHOOL OF LAW Dale E. Ho (D.C. Bar No. NY0142) 161 Avenue of the Americas, Floor 12 Natasha M. Korgaonkar New York, NY 10013-1205 Leah C. Aden Tel: (646) 292-8310 NAACP LEGAL DEFENSE & Fax: (212) 463-7308 EDUCATIONAL FUND, INC. [email protected] 99 Hudson Street, Suite 1600 New York, NY 10013 Armand Derfner (D.C. Bar No. 177204) (212) 965-2200 DERFNER, ALTMAN & WILBORN
-6-
Case 1:12-cv-00203-CKK-BMK-JDB Document 157 Filed 08/08/12 Page 7 of 8
[email protected] 575 King Street, Suite B [email protected] P.O. Box 600 Charleston, SC 29402 Douglas H. Flaum Tel: (843) 723-9804 Michael B. de Leeuw Fax: (843) 723-7446 Adam M. Harris [email protected] FRIED, FRANK, HARRIS, SHRIVER & JACOBSON LLP Counsel for Defendant-Intervenors the One New York Plaza League of Women Voters of South Carolina, New York, NY 10004-1980 et al. (212) 859-8000
Victor L. Goode NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE 4805 Mt. Hope Dr. Baltimore, MD 21215
Counsel for Defendant-Intervenors South Carolina State Conference of the NAACP, et al.
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Case 1:12-cv-00203-CKK-BMK-JDB Document 157 Filed 08/08/12 Page 8 of 8
CERTIFICATE OF SERVICE
I certify that on August 8, 2012, I filed the foregoing Defendant-Intervenors’ Motion to
Strike South Carolina’s Declaration and Rebuttal Expert Disclosure of Scott Eugene Buchanan,
Ph.D. with the Court’s electronic filing system, which will provide notice to all counsel of record.
Dated: August 8, 2012
/s/Sean Camoni ______SEAN CAMONI Sullivan & Cromwell LLP
Case 1:12-cv-00203-CKK-BMK-JDB Document 157-1 Filed 08/08/12 Page 1 of 3 Exhibit A Case 1:12-cv-00203-CKK-BMK-JDB Document 157-1 Filed 08/08/12 Page 2 of 3
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
STATE OF SOUTH CAROLINA,
Plaintiff, v. Civil Action No. 12-203 UNITED STATES OF AMERICA, and ERIC HIMPTON HOLDER, JR., in his official 1:12-CV-203-CKK-BMK-JDB capacity as Attorney General of the United (Three Judge Court) States,
Defendants,
and
JAMES DUBOSE, et al.,
Defendant-Intervenors.
SOUTH CAROLINA’S REBUTTAL EXPERT DISCLOSURE
Pursuant to Federal Rule of Civil Procedure 26(a)(2) and the Court’s Third Revised
Scheduling Order (Dkt. 121), the State of South Carolina hereby discloses the following individual as a rebuttal expert witness:
Scott Eugene Buchanan, Ph.D. Department of Political Science The Citadel 171 Moultrie Street Charleston, SC 29409
Dr. Buchanan will testify in rebuttal to expert testimony offered by United States expert Dr.
Vernon Burton and Defendant-Intervenors expert Dr. Theodore Arrington. A copy of Dr.
Buchanan’s expert report is being served herewith. Case 1:12-cv-00203-CKK-BMK-JDB Document 157-1 Filed 08/08/12 Page 3 of 3
Respectfully submitted,
/s/ H. Christopher Bartolomucci Paul D. Clement (D.C. Bar No. 433215) H. Christopher Bartolomucci (D.C. Bar No. 453423) Conor B. Dugan (D.C. Bar No. 1006458) Stephen V. Potenza (pro hac vice) Brian J. Field (D.C. Bar No. 985577) Michael H. McGinley (D.C. Bar No. 1006943) BANCROFT PLLC 1919 M Street, N.W., Suite 470 Washington, D.C. 20036 (202) 234-0090
Dated: August 6, 2012 Counsel for the State of South Carolina
2 Case 1:12-cv-00203-CKK-BMK-JDB Document 157-2 Filed 08/08/12 Page 1 of 104 Exhibit B Case 1:12-cv-00203-CKK-BMK-JDB Document 157-2 Filed 08/08/12 Page 2 of 104
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
STATE OF SOUTH CAROLINA
Plaintiff,
v. Civil Action No.
THE UNITED STATES OF AMERICA And ERIC HIMPTON HOLDER, JR. in his 1:12-CV-203-CKK-BMK-JDB Official Capacity as Attorney General (Three Judge Court) Of the United States,
Defendants,
AND
JAMES DUBOIS, et al.,
Defendant-Intervenors.
DECLARATION OF SCOTT EUGENE BUCHANAN, PH.D.
Case 1:12-cv-00203-CKK-BMK-JDB Document 157-2 Filed 08/08/12 Page 3 of 104
I. Introduction
My name is Scott Buchanan, and I am currently an associate professor of political science
at The Citadel in Charleston, South Carolina. Since August 2009, I have been on the faculty at
The Citadel. Prior to that, I was on the faculty at Columbus State University in Columbus,
Georgia from August 2002-July 2009. Previous to that, I was a faculty member at Gordon
College in Barnesville, Georgia from August 1999-July 2002. I teach courses in American politics at The Citadel. Specifically, I focus on teaching courses on political parties, state and local government, civil rights, and southern politics.
I have been asked by the plaintiff in this lawsuit to investigate and, if appropriate, to state opinions I have in rebuttal to opinions expressed by Drs. Vernon Burton and Theodore Arrington in their initial and supplemental reports in this case as to what progress South Carolina has made since the enactment of the Voting Rights Act of 1965 regarding voter registration, voter turnout, and the number of black elected officials in the state. Specifically, I have been asked to state whether or not South Carolina’s history of racial discrimination will affect the ability of African
Americans to vote under South Carolina’s photo identification law, Act R54 (2011). I have also
been asked to investigate and provide any rebuttal opinions I have to specific points,
methodologies, and analyses used by Drs. Burton and Arrington in this case and as set forth in
their initial and supplemental reports. In addition, I have been asked to comment upon expert
witness assertions that voting fraud, including impersonation fraud, is not a problem in South
Carolina and in the other states, and therefore does not affect the public confidence in the
integrity of the voting process of South Carolina. My opinions are based upon widely accepted
methods of analysis in political science, and I have previously used these skills in a variety of
research that focuses primarily on southern politics.
1 Case 1:12-cv-00203-CKK-BMK-JDB Document 157-2 Filed 08/08/12 Page 4 of 104
II. Qualifications, Publications, and Compensation
I earned my Ph.D. in political science at the University of Oklahoma in 1999. My masters degree in political science is from Auburn University (1995), and my undergraduate degree is from the University of Georgia (1992). My academic major at both Auburn University and the University of Georgia was political science. Since 1995, I have been involved in political science research in a variety of ways. My curriculum vitae is attached to this report as
Appendix A.
All of my published research is included in my curriculum vitae. I have published research in several peer-reviewed journals including, American Review of Politics, Journal of
Political Science, Legislative Studies Quarterly, Politics and Policy, and Southeastern Political
Review. I have also contributed to three peer-reviewed scholarly books and have written several book reviews for scholarly journals. Typically, the book reviews have been concentrated on an area of either southern politics or civil rights history. I have also published a biography of
Georgia governor Marvin Griffin who served from 1955-1959 and am knowledgeable concerning the state of southern politics in the mid-20th century to current day. In addition, I
have conducted a number of interviews with political leaders who served in office in the state of
Georgia during the 1950s and 1960s. From 2004-2005, I was president of the Georgia Political
Science Association. Finally, I have been the executive director of The Citadel Symposium on
Southern Politics since 2009.
I am being compensated at the rate of $300 per hour. I have not served as an expert
witness on any previous court cases.
2 Case 1:12-cv-00203-CKK-BMK-JDB Document 157-2 Filed 08/08/12 Page 5 of 104
III. Opinions
My opinions can be summarized as follows:
• Since 1965, South Carolina has made dramatic progress in the area of minority
voting rights regarding the ability of racial minority groups, especially African
Americans, to participate in the political process, and to elect candidates of their
choice.
• African-Americans in South Carolina have equal access to voting as demonstrated
by voter registration statistics and voter turnout rates, which are presented below.
• The political empowerment of black elected officials has grown dramatically in
the late 20th/early 21st centuries. The most dramatic growth occurred during the
decade from 2002-2012.
• South Carolina in 2012 is no longer the state that it was in 1965 as it pertains to
the ability of African-Americans to participate in the political process and elect
candidates of their choice.
• The past history of racial discrimination in South Carolina does not continue to
have present-day effects that affect voter registration, turnout, and the number of
black elected officials in the state.
• Both Drs. Arrington and Burton utilize methodologies in their initial and
supplemental expert reports that lead them to conclusions about the state’s
political racial environment and the motivations of the state’s political figures that
are not reliable.
• Neither Drs. Arrington nor Burton give due consideration to the potential for how
photographic identification laws might help to deter voting fraud.
3 Case 1:12-cv-00203-CKK-BMK-JDB Document 157-2 Filed 08/08/12 Page 6 of 104
IV. Basis and Reasons for My Opinions
The data presented in the exhibits below are all publicly available data that helped lead me to the opinion that South Carolina has substantially changed since the passage of the Voting
Rights Act of 1965, and particularly as to African American’s participation in the voting process.
The voter registration and turnout data in Exhibits 2-5 are based exclusively upon figures available from the South Carolina Elections Commission. Turnout data in this study are always presented as white/non-white. Essentially, the state computes the white turnout, and all other racial groupings are characterized non-white.
Data on black elected officials are readily available from 1970-2002. After 2002 though, the Joint Center for Political and Economic Studies stopped compiling and publishing data on black elected officials. As a result, I constructed the number of black elected officials in 2012 to compare to the now decade-old data of 2002. Some data were available from the South Carolina
Legislative Manual, while I obtained other numbers of black officials from various state associations representing certain officeholders at the state level. For example, the South
Carolina Coroners Association provided demographic information on coroners in the state’s 46 counties. I generated other numbers by using the Internet and determining the race of the individual from pictures of officeholders.
A. Voter Turnout
Exhibit 1 presents the impact of the Voting Rights Act of 1965 (VRA) on southern states by 1967. Using an eleven state definition of the South, 55.3 percent of whites and 30.8 percent of non-whites were registered to vote in 1964. In 1967, the region-wide voter registration averages had increased to 73.1 percent of age-eligible whites and 56.0 percent age eligible non- whites. Political scientists often refer to South Carolina as a “Deep South” state. The five states
4 Case 1:12-cv-00203-CKK-BMK-JDB Document 157-2 Filed 08/08/12 Page 7 of 104
of the Deep South have the largest black populations, and they were historically the most resistant to changes in racial segregation and featured low levels of black voter registration and turnout (Key 1949). However, South Carolina in 1964 had a non-white voter registration of 37.3 percent, which was higher than the other four states that make up the Deep South. After passage of the VRA, the black registration numbers began to rise and were comparable to the Deep South and the region as a whole. Simultaneously, the white voter registration also increased. Voter registration has increased for all racial groups since the late 1960s (see Exhibit 1).
Since 1968, South Carolina has maintained voter registration data divided into specific racial groupings: white, black/African American, Indian/Native American, and Asian. This data was the race which the voter claimed when he/she registered to vote. Through the mid-1980s, the majority of the state’s voters claimed either white or black as their racial identity. Beginning in 1986, the number of Asians registering to vote began to increase, and in 1988 the state began the Hispanic grouping. Consistently since 2000, South Carolina has also maintained an “other” racial category. For the purposes of analysis, I computed the percentage of blacks, whites, and minority voters other than blacks using the voting age population (VAP) for each group. In all cases, VAP was based upon United States Census Bureau figures for each census between 1960-
2010. I would like to make two observations in this regard. First, the 1960 Census only provides white and non-white VAP. Therefore, the 1968 black and non-white registration percentages are identical. Secondly, I used the VAP for 1970 of 21 years and older. Beginning with 1972 and the passage of the 26th Amendment, I used the population that was 18 and older.1
1 One note is that some studies have begun to use the voting eligible population (VEP), which attempts to subtract non-citizens and convicted felons to create a more accurate voter registration rate than possible using VAP. However, this is not easily available data. If it were possible to use VEP, the registration percentages would undoubtedly be even higher for all racial groups since the VAP includes some individuals who cannot legally vote. 5 Case 1:12-cv-00203-CKK-BMK-JDB Document 157-2 Filed 08/08/12 Page 8 of 104
As Exhibit 2 demonstrates, the voter registration numbers for all racial groups have risen
steadily. Most notably, black registration as a percentage of VAP has increased at a rapid rate in
the past decade. In June 2012, African American registration rate is higher (81.2 percent) than the corresponding white registration percentage (78.5 percent) in South Carolina. Although there are times when registration for black voters will go down between election cycles, the same decline always occurs among white registrations as well. The fact that 81.5 percent of the black
VAP of South Carolina in 2012 are registered to vote demonstrates the change that has been made in black voter registration since the mid-1960s.
B. Voter Turnout
Exhibit 3 presents voter turnout rates for the period from 1970-2010.2 An analysis of the
non-white turnout data reveals the non-white voter turnout rate has consistently risen over the
last four decades. While the voter turnout rate is not a constant rise across all election cycles,
turnout in presidential elections, which always draws the highest turnout for voters of any race,
has consistently increased in terms of raw numbers of non-white voters. While the percentages
of non-white voter turnout vary across the time period, the white turnout has fluctuated as well.
One of the most important, if not the most important, measure of the ability of non-white voters to vote freely is to compare the non-white turnout rate to white turnout rates.
Since the 1972 presidential election, the difference between white turnout and non-white
turnout has averaged eight percent across all ten presidential elections with more whites voting
than non-whites. In 2008, statewide non-white voter turnout was higher than white turnout by
0.9 percent.
2 South Carolina did not maintain racial turnout data for the 1968 general election.
6 Case 1:12-cv-00203-CKK-BMK-JDB Document 157-2 Filed 08/08/12 Page 9 of 104
Exhibit 4 focuses upon turnout in the Democratic primary. Party primaries typically
draw less turnout than a general election. However, the South had a history of higher turnout in
primaries than the general election due to the legacy of the one party Democratic South. Stanley
(1987) found that voter turnout for gubernatorial primaries and U.S. Senate primaries were more
likely to draw higher turnout than general elections prior to the 1960s, and South Carolina
certainly fits that pattern as well. Into the 1980s, the legacy of the one party South continued to
be seen with primary turnout often higher than one typically sees in party primaries. To gain a
sense of this trend, turnout data for party primaries for the years 1978-2010 are included. Until
1992, both the Democratic and Republican Parties in South Carolina conducted party primaries,
including maintaining turnout figures.3 Since 1978, the percentage of non-white voter turnout
has outpaced white turnout in the Democratic primary. Over the same period, the total turnout for the Democratic primary has becoming increasingly non-white with 64 percent of the total turnout being non-white voters in 2010.
The Republican Party figures are included in Exhibit 5. While the Republican Party has become the party of choice for a majority of white South Carolinians since the 1980s, non-white
turnout in the GOP primary has risen slightly since 1978.
Overall, voter turnout rates for all racial groups in South Carolina have increased over the
last forty years. Non-white voters now vote in much higher numbers than the 1970s, and, as
noted above, in the case of the November 2008 general election, the non-white voter turnout rate was actually higher than white turnout. Even in the 2010 general election when turnout for all racial groups decline in midterm elections, the non-white turnout rate was only 4.4 percent lower
3 Prior to 1978, the South Carolina Elections Commission did not report primary turnout in the official election reports available from the Commission as a result statewide primary turnout are not readily available. 7 Case 1:12-cv-00203-CKK-BMK-JDB Document 157-2 Filed 08/08/12 Page 10 of 104
than white turnout. In terms of raw numbers, non-white voters turned out in the highest numbers in 2010 than any midterm election in the history of the state.4
Another measure of the progress made in the area of voting participation by African
Americans can be seen in Exhibit 6, which presents the United States Census Bureau estimates
of voter registration and turnout. While these figures are not official data like the registration
and turnout data maintained by the State Election Commission, they are an indication of citizens’
political efficacy in responding to whether or not they are registered to vote or cast ballots.
Based upon the Census Bureau surveys as well as actual registration and turnout figures, non-
white voters are registered and voting at rates equal to the rates of white voters, and again in the
2008 general election, non-white turnout actually outpaces white turnout (see Exhibit 6).
C. Socioeconomic Factors in Voter Turnout
Exhibits 7-9 present data related to the socioeconomic climate of South Carolina. Exhibit
7 contains white voter turnout along with the white per capita income for the state’s 46 counties.
Exhibit 8 focuses upon non-white turnout along with the black per capita income. The table in
Exhibit 9 compares the five poorest counties (Lee, Williamsburg, McCormick, Allendale, and
Marion) in terms of black per capita income and the five wealthiest counties (Beaufort,
Charleston, Richland, Georgetown, and Greenville) in terms of white per capita income. A
further analysis reveals that educational attainment rates in the five poorest counties are the
4 Dr. Vernon Burton, expert witness for the defendant-intervenors in this case, states in his report that “the African American turnout rate returned to pre-2008 levels, suggesting that 2008 was tied to Obama’s candidacy in particular” (Burton Report 2012, 13, note. 48). Since Dr. Burton is using the state published non-white turnout rates, he cannot speak definitively to African American turnout. In addition, non-white turnout was at 48.6 percent in the 2010 midterm elections which is higher than the 37.1 percent turnout rate among non-whites in the 2006 midterm election. Significantly, the percentage of the total voter turnout that was non-white in 2010 was 28.5 percent which was a state record for a midterm election. 8 Case 1:12-cv-00203-CKK-BMK-JDB Document 157-2 Filed 08/08/12 Page 11 of 104
lowest in the state. In the wealthiest counties, the educational attainment rates are the highest in
the state.
A very large body of study in political science focuses upon socioeconomic influences on
voter turnout.5 While education and income certainly play a role in the likelihood that a voter will cast a ballot, some scholars have found that the differences between black and white southerners are more complex. Once controlling for socioeconomic factors, some have found that black turnout actually is higher than white turnout among comparable groups (Verba and
Nie 1972; Wolfinger and Rosenstone 1980). In order to see what patterns might exist in South
Carolina, Exhibit 9 presents voter turnout rates in general elections between 2000 and 2010 in the state’s wealthiest and poorest counties. Due to the inability to obtain a specific black turnout rate for 2010, the figures are the non-white turnout rate. However, the state’s five poorest counties have overwhelmingly African American populations and feature non-white voter registration that is almost exclusively black.6
Turnout among non-white voters in the state’s five poorest counties has increased over the last decade. As was typical for the entire state, the 2008 general election saw the highest non-white turnout in the state’s history. The non-white turnout in the state’s poorest counties
was 77.8 percent in comparison to 76.3 percent non-white turnout statewide as was presented in
Exhibit 3. The non-white voter turnout rate across the state was approximately the same level regardless of the economic condition of the county. Both on a statewide basis, and even more so
5 The analysis of socioeconomic factors in voter turnout are so voluminous as to defy citation here. However, Niemi and Weisberg (1993) provide a broad literature review of this area of study. 6According to the 2010 Census, the black populations for the poorest counties in the state were: Lee (64 percent), Williamsburg (65 percent), McCormick (49 percent), Allendale (72 percent), and Marion (56 percent). 9 Case 1:12-cv-00203-CKK-BMK-JDB Document 157-2 Filed 08/08/12 Page 12 of 104
in the state’s poorest counties, non-white voter turnout in the state’s five poorest counties was at
historic highs for the past two election cycles.
To compare the opposite category, the wealthiest five counties in Exhibit 9 feature white
voter turnout rates. One of the expected outcomes is that the wealthiest counties would have
higher turnout among white voters, and this was the case. The point that is worth noting again is
the last two election cycles. The average difference between the wealthiest counties’ white
turnout rate and the poorest counties’ non-white turnout rate was 13.8 percent in the 2000 and
2004 presidential elections. Yet in 2008, non-white voter turnout outpaced white turnout in these
counties by a 77.8-76.6 percent margin. The average difference between the white and non-
white turnout in these two groups was 11.2 percent for the 2002 and 2006 midterm elections with
white voters turning out in higher numbers as was the historical norm. In the 2010 midterm
elections, however, the difference between the two opposite groups of voters shrank to 2.1
percent between white and non-white voters.
The comparison of African American and white turnout indicate that the state’s past
discrimination of African Americans is not affecting their political activity today. This gives
credence to Judge Duffy’s opinion in United States v. Charleston County in which he stated that
“the Court cannot conclude that there remain lingering effects from past discrimination touching
the right of African Americans to vote” (316 F.Supp.2d 268, 291 n.23). While turnout amongst
non-white voters has historically been lower through the 1990s, this has changed since 2000.
These trends have changed statewide with all non-white voters (including African Americans), and the trend is evident among non-white voters who live in the state’s most impoverished counties. While it is not surprising that non-white voter turnout was historically high in 2008, the correspondingly high turnout rate among non-whites in 2010 indicates that it is not limited
10 Case 1:12-cv-00203-CKK-BMK-JDB Document 157-2 Filed 08/08/12 Page 13 of 104
solely to presidential election cycles, where one of the candidates of a major political party is an
African American.
D. Black Elected Officials in South Carolina
While South Carolina voters have yet to elect a black candidate to a statewide office,
black elected officials have increased significantly since the early 1970s. Exhibit 10 details the
rise in black officeholders at the level of the United States House of Representatives and also the
South Carolina General Assembly. Exhibit 11 demonstrates the rise in black elected officials at
the city and county level.7
In 1992, South Carolina saw its first black congressman since Reconstruction with the election of Democrat James Clyburn to represent the state’s Sixth Congressional District.
Clyburn’s victory was in a district with a majority-minority population. Clyburn easily won the
Democratic nomination in 1992, without a runoff, garnering 55 percent of the vote in a five candidate field. The 2010 population of the Sixth District was 54.2 percent African American.
In 2010, voters of the state’s First Congressional District elected Timothy Scott to
represent them in Congress. Timothy Scott is a black conservative Republican who was elected
easily in 2010 by a margin of 65-29 percent over his white Democratic opponent. In securing the
Republican nomination for the First District, Scott won a plurality in a nine candidate
Republican primary, which also featured Carol Campbell, III and Paul Thurmond, the sons of
7Ruoff and Buhl (2006) have data for black elected officials in 2005. However, their data does not contain municipal officeholders, which made an accurate comparison impractical. While the number of black sheriffs remained constant from 2005-2012, the number of black candidates elected to the positions of county auditor, county treasurer, and coroner increased. 11 Case 1:12-cv-00203-CKK-BMK-JDB Document 157-2 Filed 08/08/12 Page 14 of 104
two famous white political figures in South Carolina.8 In the runoff, Scott easily defeated Paul
Thurmond by a margin of 68-32 percent. Scott’s victory was also notable due to the fact that the
First Congressional District had a 2010 population that was 66.1 percent white. While Scott had
not previously run for Congress, he was not a newcomer to politics. Scott served on the
Charleston County Council from 1995-2009, and he was chairman of the council from 2007-
2009. Scott was elected in 2008, and served from 2009-2011, as the representative of District
117 in the South Carolina House of Representatives. When Scott was elected, 67.6 percent of registered voters in House District 117 were white (South Carolina Registration Demographics for House Seat 117).
One sign that South Carolina today is not the same as forty years ago, Timothy Scott is the only black Republican elected from the Deep South to represent a district in Congress since the Reconstruction era.9 Scott’s election suggests that white South Carolina voters are willing to vote for a black candidate when the ideological preferences of both the voters and candidate coalesce. The fact that Congressman Scott drew no Republican opposition in the 2012 primary
is a further indication of Scott’s popularity with his constituents.
While not elected to the United States Senate, Alvin Greene, a black Democrat, was the
surprise winner of the Democratic nomination in 2010 defeating Charleston County Council
member Vic Rawl, a white candidate, by a margin of 59-41 percent. Given how improbable
Greene’s victory was, Representative James Clyburn speculated that Greene was possibly “a
Republican plant” (Toeplitz 2010). However, no evidence has ever been produced indicating
8 Campbell’s father is Carroll Campbell, Jr. who served as Governor of South Carolina from 1987-1995. Thurmond’s father is United States Senator Strom Thurmond who, among other offices, served as a senator from South Carolina from 1954-2003. 9 Political scientists generally classify the South into two categories: Deep South and Rim South. The Deep South states are Alabama, Georgia, Louisiana, Mississippi, and South Carolina, while Arkansas, Florida, North Carolina, Tennessee, Texas, Virginia are the Rim South. 12 Case 1:12-cv-00203-CKK-BMK-JDB Document 157-2 Filed 08/08/12 Page 15 of 104
such a conspiracy was afoot. Despite a challenge by Rawl, the South Carolina Democratic Party
refused to overturn the results of the primary, and Greene was announced as the Democratic
nominee of the U.S. Senate despite the fact that Rawl would have undoubtedly been a stronger
challenger to DeMint (Id). A homogenous precinct analysis of Greene’s primary victory found
that a biracial coalition was responsible for Greene’s victory, and there was no evidence of any
sort of a Republican plan, or voting fraud scheme, to corrupt the Democratic primary results
(Bullock and Buchanan 2012).
In the General Assembly, the number of black members has steadily increased since the
early 1970s. In 1970, three black candidates were elected to the state House of Representatives
for the first time since Reconstruction. As presented in Exhibit 10, the ensuing years saw that
number rise to 38 (21.1 percent) in the current session House and Senate (2011-2012).
Representative Gilda Cobb-Hunter (D-Orangeburg) is an African-American member and
formerly served as the Democratic minority leader of the state House from 1997-2000. She was
also the first woman to hold that office.
The numbers of black elected officials at the county and city level have grown even more
dramatically since 1970. The most significant change though has occurred in the decade from
2002-2012. Exhibit 11 presents the number of black elected officials at the county and city level.
The numbers included are only those offices which are elected by either the voters or, in the case
of judicial positions, appointed by members of the General Assembly. There are approximately
3,174 elected positions at all levels of government in South Carolina, and the total number of
black elected officials in 2012 across the state is 931, or 29.3 percent of the total officeholders.10
Considering that the statewide population of South Carolina, according to the 2010 Census, was
10 The total of 3,174 elected positions comes by adding all elected positions at the federal, state, county, and city level. 13 Case 1:12-cv-00203-CKK-BMK-JDB Document 157-2 Filed 08/08/12 Page 16 of 104
approximately 27.9 percent African American, the proportion of black elected officials is slightly higher than the statewide population.
Further, some counties in the state with majority black populations feature county governments in which African Americans hold a majority of county positions beyond their proportion of the population. For example, Williamsburg County had a 2010 population that was
65.8 percent African American, while black officials held 84.6 percent of county level offices.
Nor are majority black counties the only ones that feature African American officeholders. For example, Abbeville County, in which blacks constituted 28.2 percent of the 2010 population, had four black officeholders in 2012, which was 30.8 percent of county offices. While three of those officeholders were county council members representing single member districts, one was the sheriff who is elected countywide.
African Americans hold approximately 38 percent of the 617 school board seats in the 83 school districts across state. Voters elect school board members in 76 of the 83 school districts.
Forty school boards have board members elected from single member districts, while 27 boards
use an at-large method of voting. The remainder uses some combination of at-large and single member districts. Seven districts have school boards that have some or all members appointed.
In addition, 27 of the 83 (32.5 percent) school districts have a black school board chair.11
Members of school boards hire superintendents in 82 of the 83 districts (Oconee County has an
elected superintendent, who is white). Currently, there are 21 African American superintendents or 25 percent of the total.
11 The voters in Horry and McCormick Counties elect school board chairs. In 2012, Horry County’s chair is white, while McCormick County’s elected chair is black. In all other school districts, the members of the school board elect the chair. 14 Case 1:12-cv-00203-CKK-BMK-JDB Document 157-2 Filed 08/08/12 Page 17 of 104
In the area of law enforcement, 12 of the 46 sheriffs (26.0 percent) across the state are
African American, and eight coroners (17.4 percent) are black. Of the 12 sheriffs, four serve in
counties where African Americans constitute less than 50 percent of registered voters: Abbeville
(31.3 percent), Colleton (41.9 percent), Edgefield (37.1 percent), and McCormick (42.5 percent).
The fact that these counties have majority white voter registration and black sheriffs is
noteworthy since southern sheriffs have historically been seen as the head of the ticket when it
comes to county elections (Greene 2003; Hendrickson 2003). Also, unlike single member
county council districts, sheriffs are elected countywide.
At the state level, one state supreme court justice is black, and there are black judges at
the lower judicial levels with the largest number being at the magistrate level. Of the state’s 556
magistrates, 116 are black (20.9 percent).
E. Growing Diversification of the South Carolina Population
Despite South Carolina’s historically biracial dichotomy of white and African American,
the state’s population is more diversified than a generation ago. As Exhibit 3 highlights, the
number of other racial minority groups, as defined by the United States Census Bureau, have
begun to rise as a percentage of registered voters.
Republican Nikki Haley, a person of South Asian Indian-American heritage, is the first
minority to be elected governor in South Carolina’s history. Haley was born in Bamberg, South
Carolina, to parents who immigrated to the United States from India (Haley 2010; Dewan and
Brown 2010). After serving three terms in the South Carolina House of Representatives, Haley
won the governorship in 2010. Despite a field that included Congressman Gresham Barrett,
Lieutenant Governor André Bauer, and Attorney General Henry McMaster, all of whom are
15 Case 1:12-cv-00203-CKK-BMK-JDB Document 157-2 Filed 08/08/12 Page 18 of 104
white, Haley won 49 percent of the vote in the four candidate field and easily defeated Gresham
Barrett in the runoff by a 65-35 percent margin.
V. General Rebuttals To Expert Witnesses Reports of Drs. Burton and Arrington
Below are general rebuttals to the reports of Drs. Arrington and Burton.
A. Racial Polarization
After reading the reports of Drs. Vernon Burton and Theodore Arrington, a common
theme in both reports is the racial polarization of voting in South Carolina. While it is certainly
true that many white and black South Carolinians have different expectations from government,
one cannot automatically assume that racial motivations are the cause of the presence of
polarized voting. In fact, both Drs. Arrington and Burton seem to approach the political
environment of South Carolina as if it were frozen in a late 1960s/early 1970s era. An
underlying assumption of both experts is that race relations have not changed and that state and
local election officials are willing to engage in racially discriminatory practices as were done in
the past. Yet, neither Drs. Arrington or Burton seem to give consideration to the fact that local elections officials 45-50 years ago were exclusively white. Today, the likelihood of local elections officials being a mixture of both white and black persons is much greater, and the
likelihood of racial discrimination occurring as described is much less likely. Drs. Arrington and
Burton do not report any sort of data for the racial composition of elections officials across the
state.
The mindset of many white South Carolinians is focused on keeping government small
due to the traditionally small state government and low levels of taxes that are part of the politics of the state (Elazar 1972). Prior to the 1960s, the expression for such political sentiments was
16 Case 1:12-cv-00203-CKK-BMK-JDB Document 157-2 Filed 08/08/12 Page 19 of 104
found in the Democratic Party in South Carolina. Today, those same sentiments are best
represented within the South Carolina Republican Party. The South Carolina Republican Party
first began to develop in Greenville, Charleston, and Columbia in the 1950s, and the nucleus of
the state’s party was the white middle class who tended to focus on business issues (Bass and
Poole 2009). Although the Goldwater presidential candidacy in 1964 helped to bring in white voters more concerned about racial issues, the Democratic Party continued to dominate state
legislative elections until the early 1990s (Graham and Moore 1994).
Drs. Arrington and Burton neglect the role that national politics has played in the partisan
environment. Ronald Reagan’s election in 1980 and 1984 played a large role in the
transformation of the state’s Republican Party. While the Republicans did not take control of
state government in the 1980s, the foundation was built during this decade. Black and Black
(2002) highlight the profound effect of the Reagan presidency in helping to transform the South
into a Republican stronghold. Graham, Moreland, and Steed (2010) argue that Reagan helped to
lead to a steady partisan transformation during the 1980s and 1990s. More recently, George W.
Bush’s two presidential elections helped to complete the partisan realignment in the state (Id).
Religion is another aspect in the growth of the Republican Party in the state. Since the
1980s, religious conservatives, especially evangelical Protestants, have played a larger role in
southern politics (Black and Black 2002). Religion is a vital element to consider to understand
political trends in the South since the 1980s (Green Kellstedt, Smidt, and Guth 2010). Black and
Black (2002) argue that the religious right plays an “integral part of the southern Republican
electoral coalition” (215). The importance of the role which religious conservatives play cannot
be downplayed in South Carolina Republican politics.
17 Case 1:12-cv-00203-CKK-BMK-JDB Document 157-2 Filed 08/08/12 Page 20 of 104
Another factor is found in the state’s profound demographic transformation since the
1990s. In Dr. Burton’s report, an underlying premise seems to be that South Carolina has not
changed substantially in the last forty years with regards to race relations or the political
environment, other than the fact that the Republicans are now more successful than the
Democrats in elections. However, South Carolina has undergone enormous demographic
changes that have brought in many individuals who were neither born nor raised in South
Carolina, and these demographic changes carried with them political implications. As early as
the 1980s, Black and Black (1987) found that Elazar’s traditionalistic political culture was not as
deeply rooted in southern cities as was historically the case.
Another dynamic at play is that South Carolina continues to attract wealthy retirees from
northern states, especially to the coastal counties (Ottenhoff 2012). According to the American
Community Survey, nearly 21,000 citizens moved from the northeast to South Carolina with most of that number coming from New York, New Jersey, and Pennsylvania (U.S. Department of Commerce 2010). Since the 1960s, Northerners who moved to the South have been more likely to be Republican which has helped to change the partisan composition of the South (Black and Black 1987). In essence, a significant component in Republican growth in South Carolina is
from voters who are new to the state.
In the Upstate, international corporations have been operating since the 1980s. The
recent construction of the Boeing facility in Charleston, and the corresponding move of workers
from other portions of the country to South Carolina, continue to add to the demographic
diversity of the state. In large part, this influx of new residents from other areas of the country
tends to be more supportive of the Republican Party (Graham, Moreland, and Steed 2010).
However, neither Drs. Arrington or Burton give any mention to this fact.
18 Case 1:12-cv-00203-CKK-BMK-JDB Document 157-2 Filed 08/08/12 Page 21 of 104
A sign of the relative weakness of the Democratic Party in this era can be assessed by
examining the Democrats’ lack of success in winning open seat statewide elections in recent
history. Richard Riley was the last Democratic candidate to win a gubernatorial election for an
open seat in 1978, while Ernest Hollings was the last Democratic candidate to win an open seat
in the U.S. Senate in 1966. An examination reveals a similar pattern for all statewide elective
offices. Republicans are winning statewide offices as Democrats are either defeated or retire
(Graham, Moreland, and Steed 2010). In 2010, this pattern continued when Republican Mick
Mulvaney defeated Democrat John Spratt in the state’s Fifth Congressional District.12
In sum, the argument that voting is racially polarized solely due to racial attitudes is specious. The combination of South Carolina’s traditional political culture, the popularity of
Ronald Reagan and George W. Bush, the rise of religious conservatives in the 1980s and 1990s, and the growing demographic changes in the state have led to the ascendancy of the Republican
Party. One should not overlook the fact that the state’s Republican Party began building a well- organized party structure that continues to serve it well (Edgar 1998). Quite simply, the
Republican Party has been well-placed since the 1990s to capitalize upon the conservative political environment in the state.
12 While the Republican Party has certainly been the dominant party since the 1990s, the Democrats were able to win the governorship and reelect U.S. Senator Ernest Hollings in 1998. In order to win both of those statewide positions, it required the crossover of a number of white voters who had been typically voting Republican. 19 Case 1:12-cv-00203-CKK-BMK-JDB Document 157-2 Filed 08/08/12 Page 22 of 104
B. DOJ Objections
Both Drs. Arrington and Burton point out Department of Justice (DOJ) objections
interposed against some South Carolina voting changes under § 5 of the Voting Rights Act and
point out lawsuits brought against South Carolina jurisdictions by the DOJ under § 2 of the
Voting Rights Act (Burton Initial Report on pp. 8, 9, and 11; Arrington Initial Report on p. 54).
However, since 1972, DOJ has lodged a total of 122 § 5 objections (Bullock and Gaddie 2009).13
In the decade from 2002-2012, there have been a total of 9 objections. In the period from 1972-
2012, only 12 of those objections were at the state level. All other objections focused on the local city or county level.14 Since 2002, the only objection to a statewide law has been over the
photographic identification law at issue in this case.
The most recent local objection involved the Fairfield County School District. In 2010,
the legislative delegation from Fairfield County, Representative Boyd Brown (D-Fairfield) and
Senator Creighton Coleman (D-Fairfield), co-sponsored legislation to allow the county’s
legislative delegation to appoint a five member financial board to oversee the Fairfield School
Board (Act R135) due to financial mismanagement (Ulbrich 2010, 17; Littlefield 2010). Act
R136 (2010) would have allowed the Fairfield legislative delegation to appoint two additional
board members to the Fairfield County School Board. In his veto message, Governor Mark
Sanford vetoed both acts because of his belief in home rule, and not on race discrimination
grounds, even though Sanford clearly stated his agreement concerning the financial
mismanagement of the Fairfield School Board (Sanford 2010). Even though the General
13 Since 2004, there have been two additional § 5, bringing the total number to 122. Of the § 5 objections from 1972-2001, 15 were withdrawn. Twelve of the objections in this time period were at the state level with all others involving objections at the local level (United States Department of Justice 2012). 14 In December 2010, DOJ withdrew a 2003 objection over annexations in the Town of North in Orangeburg County (Id). 20 Case 1:12-cv-00203-CKK-BMK-JDB Document 157-2 Filed 08/08/12 Page 23 of 104
Assembly overrode that veto, the South Carolina Supreme Court ruled the overridden veto vote
to be unconstitutional holding that the General Assembly lacked a quorum when casting the vote
(Board of Trustees v. State 2011). However, before the South Carolina Supreme Court’s ruling,
the Department of Justice interposed an objection in August 2010 that focused on the
discriminatory effect of Act R136.15 Despite the concerns of DOJ over the discriminatory
effects of Act R136, it did not find any racially discriminatory intent in the enactment of R136.
The DOJ has sued two separate South Carolina counties for § 2 violations of the VRA
since 2000. In 2003, United States v. Charleston County (316 F. Supp. 2d 268), the DOJ
challenged the at-large method of election for the Charleston County Council, first adopted in
1969. The DOJ brought suit arguing that the county’s at-large method of election had a
discriminatory effect upon the ability of African Americans to elect candidates of their choice to
the county council. Private Plaintiffs intervened and alleged that the at-large method of election
had a both discriminatory intent and result in violation of § 2.
In his opinion, Federal District Court Judge Patrick Michael Duffy found in favor of the
Plaintiff that the at-large method of election indeed did have a discriminatory effect upon the ability of African-Americans voters to elect candidates of their choice to county council.
However, the court rejected the private Plaintiffs’ claims of discriminatory intent. In the
opinion, Judge Duffy stated,
Notwithstanding the Court’s determination that the at-large electoral system results in unequal access to the electoral processes for African Americans, it cannot conclude on the evidence before it that such system was adopted with the intent to discriminate. The Court, therefore, rejects the claim of the private Plaintiffs that the adoption of the at-large system was motivated by a racially
15 The Department of Justice did not object to Act R135 that established a financial oversight board for the Fairfield School Board (United States Department of Justice 2010). Ultimately due to the South Carolina Supreme Court’s overturning of the General Assembly’s veto override, Act R135 never took effect. 21 Case 1:12-cv-00203-CKK-BMK-JDB Document 157-2 Filed 08/08/12 Page 24 of 104
discriminatory purpose in violation of the intent standard of Section 2 and the 14th Amendment of the United States Constitution (316 F. Supp. 2d at 304).
The other suit brought under § 2 of the VRA by the DOJ against a South Carolina
jurisdiction involved the case of United States v. Georgetown County School District, South
Carolina. Georgetown County used an at-large method of election for its school board, and in
2008 the DOJ brought suit challenging the use of at-large elections there. The DOJ argued that the system of election diluted the voting strength of African American citizens as evidenced by the fact that the school board consisted of entirely white board members in a county that was
38.6 percent black in 2000 (Complaint, 2:08-cv-00889-DCN). In the complaint, DOJ argued that the at-large method of election had a discriminatory effect under § 2; however, the complaint did not assert that the system had a racially discriminatory intent.
When presented with the complaint, the Georgetown County School District entered into negotiations with the DOJ, and the issue was quickly resolved with the Georgetown County
School District abandoning the at-large method of election for the school board. DOJ filed its complaint against the school board on 14 March 2008, and the consent degree between DOJ and the Georgetown County School District was agreed upon on 21 March 2008 (Consent Decree
2:08-cv-00889-DCN).
C. Voting Fraud in the United States
This portion of my report is submitted in rebuttal to the notion that voting fraud, including impersonation voter fraud, is not a problem about which members of the South
Carolina General Assembly should have been concerned in enacting voting reform legislation in
2011.
22 Case 1:12-cv-00203-CKK-BMK-JDB Document 157-2 Filed 08/08/12 Page 25 of 104
Throughout their initial and supplemental reports, both Drs. Arrington and Burton assert
that voting fraud is not a problem in South Carolina that Act R54 was enacted to combat. From
pages 44-47 of his initial report, Dr. Burton argues that passing voter identification was simply a
pretext for what he argues is a racially discriminatory intent on the part of the members of the
South Carolina General Assembly. In a similar manner, in both his initial report and his
supplemental report, Dr. Arrington argues from pages 44-52 of the initial report that voter fraud,
including voter impersonation fraud, is not a problem in South Carolina. As did Dr. Burton, Dr.
Arrington finds that voting fraud concerns were a pretext for racially discriminatory intent,
underlying the enactment of Act R54.
One of the problems in addressing voter fraud is determining how widespread it is. Voter
fraud is an illegal act, so the very nature of those who engage in such illegal activities is to
endeavor to escape observation or detection. Another problem in discussing voter fraud is that
there is little academic research on this issue. In a scholarly journal article, “They Just Do Not
Vote Like They Used To: A Methodology to Empirically Assess Election Fraud,” the authors
note there is a lack of “rigorous empirical examination of contemporary election fraud by social
scientists” (Hood and Gillespie 2012, 76).
Since little academic research exists on the subject of voting fraud, I choose, in forming
my rebuttal opinion, to rely upon sources of voter fraud as reported either through the media,
through a government report, In Building Confidence in U.S. Elections (“Carter-Baker Report”)
(see Exhibit 12, p. 28), and through an investigation conducted by a Philadelphia City
Commissioner (see Exhibit 12, p. 12), to contradict the assertions made by Drs. Arrington and
Burton, concerning their claims that voting fraud is not a problem in South Carolina. In addition
to the last two documents, Exhibit 12 lists allegations of and voter fraud convictions that have
23 Case 1:12-cv-00203-CKK-BMK-JDB Document 157-2 Filed 08/08/12 Page 26 of 104
been collected and reported over the past 26 months by www.electionlawcenter.com. The table
set forth in Exhibit 12 was created by attorney Katie Crebo, who worked under my direction and
guidance in doing this research. While this list does not purport to include all instances of voting
fraud that have taken place in the United States in the last 26 months, it certainly gives some
sense of how widespread the allegations and prosecutions of all types of voter fraud are in the
United States presently.
As shown in Exhibit 12, impersonation voter fraud has taken place recently in the United
States. This type of voting fraud is the hardest to detect, especially without the use of forms of
detection, such as requiring the use of photographic identification at the polls. In Texas,
however, a Democratic precinct chairwoman candidate was indicted in 2012 for allegedly
arranging impersonation fraud involving her son (Exhibit 12, p. 12). Hazel Woodard James was
accused of arranging for her son, who is not registered to vote, to impersonate and vote in place
of her son’s father. Authorities were alerted to the problem when the son’s father later attempted
to vote the same day in the same precinct.
In Washington, D.C., in April 2012, a man associated with conservative activist James
O’Keefe walked into a precinct and asked if Defendant Eric Holder was a registered voter there.
The man was then invited by the poll worker to sign the voter sign-in list and proceed to vote.
The man then asked if he needed to provide identification but was told by the poll worker that ID
was not necessary. The man then left the polling place without voting (Exhibit 12, p. 13). While
this is not a consummated case of impersonation fraud, it is a compelling indication that without
a photo ID requirement, voter impersonation fraud would be relatively easy to commit in the
District of Columbia.
24 Case 1:12-cv-00203-CKK-BMK-JDB Document 157-2 Filed 08/08/12 Page 27 of 104
In Alabama, it was recently discovered that an illegal alien who had resided in the state
since the 1970s was registered to vote under an assumed name. Using a stolen birth certificate,
Venustaino Hernandez-Hernandez fraudulently claimed to be Severo Benavidez. While federal
prosecutors did not choose to prosecute him for voter fraud, Alabama elections records indicate
that Hernandez-Hernandez was on the voter rolls since 1984 and had voted in several elections
with his most recent ballot cast occuring in a local election in 2009 (Exhibit 12, p. 12).
In Philadelphia, City Commissioner Al Schmidt’s investigation of the 2012 primary
elections discovered a case of in-person voter impersonation fraud that dated to 1990 (Exhibit
12, page 12). In this particular case, a “Joseph Cheesboro” registered to vote with an address
that is a vacant lot in Philadelphia. In 2003, a “Joseph J. Cheesborough” registered to vote using
the address of a convenience store in Philadelphia as his home address. An examination of the
poll books which voters are required to sign revealed that Cheesboro and Cheesborough both
voted in the 2007 primary and elections in Philadelphia. It was determined that these signatures
were written by the same person.
Virginia law enforcement has been conducting investigations of voting irregularities from
the 2008 presidential election and recently charged 39 people across the state while another 26
cases are still being investigated. Of those charged, a majority of the cases resulted in
convictions. The secretary of the Virginia Board of Elections, Donald Palmer stated, “these
complaints ran the gamut from voter registration fraud issues through potential fraud at the polling place on Election Day” (Exhibit 12, p. 12).
The vast majority of documented cases of voter fraud appear to involve absentee ballot fraud. In Exhibit 12, there are six cases involving allegations of absentee ballot fraud and fourteen cases of person convicted of absentee ballot fraud (Exhibit 12, pp. 13-18). The very
25 Case 1:12-cv-00203-CKK-BMK-JDB Document 157-2 Filed 08/08/12 Page 28 of 104
fact that so much absentee ballot fraud is occurring suggests the extent to which voter fraud is
taking place in the United States. Furthermore, a number of documented cases exist where
voters are casting both an absentee ballot, as well as voting in-person, i.e. double voting. There have been three convictions of double voting and five allegations of double voting over the last
26 months (Exhibit 12, pp. 18-19).
Another form of voter fraud involves felons who are casting ballots in violation of
various state laws that prohibit felons from voting (Exhibit 12, pp. 20-21). Currently, felons in
35 states lose their right to vote while serving their prison sentences. Of that number, 30 states, including South Carolina, prohibit felons from voting through parole and probation (State Felon
Voting Laws 2012).
In addition, as documented in Exhibit 12, there have been eight convictions of voter registration fraud, and seven other investigations or indictments of voter registration fraud across the country in the past 26 months (Exhibit 12, pp. 21-24). On page 21 of his initial report, Dr.
Burton references H.B. 4549, which would have tightened voter registration procedures as it pertained to third-party registration organizations in South Carolina. Dr. Burton asserts that the consideration of this bill was due to an attempt to “suppress the vote,” and he argues H.B. 4549 is circumstantial evidence of a racially discriminatory intent on the part of members of the
General Assembly, underlying their enactment of the voter ID bill (Id). However, Dr. Burton does not apparently recognize the voter fraud problems posed by third-party registration activities and that the effort to reform these voting abuses was not done with a racially discriminatory purpose. In my opinion, his conclusion that H.B. 4549 was proposed for racial reasons is incorrect.
26 Case 1:12-cv-00203-CKK-BMK-JDB Document 157-2 Filed 08/08/12 Page 29 of 104
Further, Dr. Burton fails to acknowledge the publicized abuses of voter registration laws
by third-party organizations in South Carolina. Such voter registration illegalities took place in
Florence, South Carolina, and were perpetuated by Terence Hines. The arrest warrant for Hines
listed him as an employee of the South Carolina Progressive Network. (Exhibit 12, p. 23).16 In
2004, Hines submitted 1500 completed voter registration application forms to the voter
registration office in Florence County. Officials were alerted to a problem when one of the
registration forms included the name of the Mayor of Florence Frank Willis. Hines was charged
with forgery and voter fraud (Rees 2004). Hines was tried and convicted.
Exhibit 12 further shows that illegal voting of various other types is also taking place in
the United States. This involves a variety of states and a range of illegal actives from vote
buying, voting numerous times in one day, and ballots being cast under the name of people who
are deceased. There are currently a numbers of investigations or allegations of voter fraud of this
type occurring. For example, in Minnesota there have been 113 convictions for various forms of illegal voting, while another 16 convictions were obtained for illegal voting in Mississippi
(Exhibit 12, pp. 25-26). Another investigation of illegal voting involves a voter who is allegedly registered, and has been voting, in both Ohio and South Carolina (Exhibit 12, p. 26). Another type of illegal voting, where non-citizens are casting ballots, is also taking place in some states
(Exhibit 12, p. 27).
Many prosecutors are reluctant to investigate and prosecute voter fraud cases, further complicating the problem of determining the prevalence of voter fraud. The Carter-Baker Report found that district attorneys often refused to prosecute voter registration fraud violations since such acts were “victimless and nonviolent” (Carter-Baker 2005, 45).
16 Ironically, the South Carolina Progressive Network is a defendant-intervenor in this case. 27 Case 1:12-cv-00203-CKK-BMK-JDB Document 157-2 Filed 08/08/12 Page 30 of 104
According to the Carter Baker Report, one way to combat this problem is to create laws
to protect the sanctity of the ballot box. As the Carter-Baker Report states, “the electoral system
cannot inspire public confidence if no safeguards exist to deter or detect fraud or to confirm the
identity of voters. Photo IDs currently are needed to board a plane, enter a federal building, and
cash a check. Voting is equally important.” (Carter-Baker 2005, 18).
On page 21 of his supplemental report, Dr. Arrington asserts that the General Assembly
acted without evidence that there was a lack of public confidence in the electoral system of South
Carolina. However, Dr. Arrington is basing his opinion on South Carolina Elections
Commission surveys that were conducted in 2006. Dr. Arrington appears to suggest that these
confidence surveys mean that the public in South Carolina does not support enactment of photo
ID laws.
More recent public opinion surveys done in 2012 indicate that there is broad support
among the public for photographic identification laws. A national survey done by Rasmussen
Reports, taken in April 2012, indicates that 64 percent of the public believes voter fraud is a
“somewhat serious” problem in the United States (Rasmussen Reports 2012). Another survey
conducted by the University of Delaware and published in July 2012 indicates that 61 percent of
the public in a nationwide poll indicates strong support for voter ID laws (University of
Delaware Center for Political Communication 2012).17
Based upon the cases of voter fraud discovered and presented in Exhibit 12, I conclude
that voter fraud is occurring to an important degree in the United States. This is a reality that
both Drs. Arrington and Burton reject in their expert reports. However, the evidence presented
here seems to raise serious questions about the wisdom of rejecting the existence of voter fraud,
17 No opinion surveys of South Carolina residents were available that question them on their opinions on voter ID. 28 Case 1:12-cv-00203-CKK-BMK-JDB Document 157-2 Filed 08/08/12 Page 31 of 104
including impersonation voting fraud. In my opinion, photographic identification requirements
at the polls would not eliminate all voter fraud, but it would certainly curtail some cases of it,
including impersonation fraud. Further, it is my opinion that the enforcement of photo ID at the
polls would increase public confidence in the integrity of the voting process in South Carolina.
VI. Specific Rebuttals To Expert Witnesses Drs. Burton and Arrington
Below are specific rebuttals to expert witnesses for the defendants and defendant-
intervenors.
A. Specific Rebuttal to Burton’s Reports
At a variety of places in his report, Dr. Burton uses basic references that are highly questionable. Examples include:
• Throughout his initial report, Dr. Burton relies on references that are focused on
arguing a particular point rather than objective research. As an example, at
various points in his report, Dr. Burton cites to research presented in 2006, which
argued in favor of renewing § 5 of the Voting Rights Act (see pages 5-8 for an
example of this pattern.) However, he never cites any research that focused on
the opposite side of that debate. Essentially, he cites one side of an argument
without considering the other. Normally one would expect a social scientist to
cite sources on both sides of an argument of this kind.
• Throughout his initial report, Dr. Burton uses a number of newspapers from
outside of South Carolina. While there is certainly nothing wrong with consulting
such resources, it is curious how little he cites from newspapers within South
29 Case 1:12-cv-00203-CKK-BMK-JDB Document 157-2 Filed 08/08/12 Page 32 of 104
Carolina. One would assume that daily newspapers in the state would do a more
in-depth examination of such stories compared to other media outlets.
• On page 5 of his initial report, Dr. Burton quotes from a book that is focused on
the history of blacks in South Carolina. However, the book was published in
1973, and the focus of the study was from 1895-1968. Dr. Burton states: “the
historical experience and background to the enactment of the Voter ID law can
only be fully understood in the context of the State’s past” (id). Dr. Burton does
not provide comparable scholarly sources to discuss the history of race relations
since 1968. To focus on such a dated work does not give an indication of the
more recent history of the state.
• On page 13 of his initial report, Dr. Burton argues that South Carolina’s voter
identification law was introduced in the wake of the 2008 presidential election
which saw a large African American turnout. When he discusses this fact, he
states that a “higher proportion of young black voters turned out to vote.” He then
cites to a New York Times article that is focused on the black turnout nationwide,
and not black turnout in South Carolina, rather than focusing on data that would
show actual voter turnout in South Carolina in 2008.
• On page 14 of his initial report, Dr. Burton references a comment made by former
Governor Mark Sanford in 2005 that “there never will be” a black candidate
elected statewide in South Carolina. Governor Sanford’s comments were a
personal opinion based on no actual scientific evidence or data.
• On page 17 of his initial report, Dr. Burton cites the website, www.fitsnews.com
as source material. That website is one that proclaims on its banner “Unfair.
30 Case 1:12-cv-00203-CKK-BMK-JDB Document 157-2 Filed 08/08/12 Page 33 of 104
Unbalanced.” While the blog can certainly shed light on political events in the
state, it seems hardly worthy of citation in a document for a case of this
importance. Dr. Burton does not provide any mainstream media sources to
corroborate this story. Certainly, sources from the “new media” must be
considered, but it seems objectivity would require using other sources on this
point as well.
• On page 46 of his initial report, Dr. Burton cites to Marci Andino’s deposition
that mentions a survey conducted by the South Carolina Elections Commission,
which indicates that the state’s citizens have high confidence in the state’s
electoral system. Dr. Burton does not provide that survey data. Moreover, none
of this vital information, such as the standard error of the survey, size and
composition of the sample, and margin of error, is presented, and therefore the
validity of the survey cannot be judged.
• Throughout Dr. Burton’s initial report, he attempts to discuss the motivations of
some of the proponents of the photographic voter identification law. Yet, he
apparently does not attempt to interview those legislators. Interviewing political
leaders is certainly a valid research tool employed by historians and political
scientists alike. It is noteworthy that no interviews were done, which might shed
further light on the motivations of these lawmakers.
In other portions of his report, Dr. Burton draws conclusions based upon questionable
assumptions in some cases and misleading use of source material in other cases. In other
instances, Dr. Burton omits information that might bring additional perspective to the case.
Examples include:
31 Case 1:12-cv-00203-CKK-BMK-JDB Document 157-2 Filed 08/08/12 Page 34 of 104
• Dr. Burton has a tendency throughout his initial report to make broad assertions
about the motivations of supporters of the voter identification law as well as the
opponents. However, he disturbingly references one legislator’s comments as if
that can explain the motivations of an entire group’s support or opposition to the
bill. One example of this can be seen on page 22 of Dr. Burton’s initial report
where he references Representative Bill Clyburn’s opposition to the bill as
representing the views of all opponents.
• On page 6 of the initial report, Dr. Burton discusses Judge Patrick Michael
Duffy’s opinion in United States v. Charleston County regarding the history of
state-sponsored discrimination in South Carolina. What is not mentioned is the
fact that Judge Duffy also stated “the Court cannot conclude that there remain
lingering effects from past discrimination touching the right of African Americans
to vote” (316 F.Supp.2d 268, 291 n.23).
• On page 13 of his initial report, Dr. Burton states that the evidence “illustrates a
connection between President Obama’s election and the push for photo ID.” Dr.
Burton does not provide any objective data or sources to support this statement.
The supporters of the law have testified they were taking cues from Georgia and
Indiana when it came to photo ID laws for voting. However, Dr. Burton makes
no attempt in either of his reports to explore this possibility.
• In that same spirit, Dr. Burton cites, on pages 13-14 of his initial report, the
comments of three legislators, Representatives Leon Howard and David Mack
along with Senator Phil Leventis, who opposed the bill and their perceptions of
32 Case 1:12-cv-00203-CKK-BMK-JDB Document 157-2 Filed 08/08/12 Page 35 of 104
timing. Dr. Burton does not reveal why he chose these three legislators to
represent the position of all other opponents of the bill.
• On page 23 of his initial report, Dr. Burton neglects to inform his readers that
Timothy Scott, a black Republican who was elected to the Congress of the United
States in 2010, voted for the 2009 version (H.B. 3418) of the photographic
identification bill. That information would certainly seem to give a different
perspective to this case than what is set forward in Dr. Burton’s reports.
• On pages 28 and 35 of his initial report, Dr. Burton states that a procedure used in
the South Carolina General Assembly was “unusual” without providing
information demonstrating, if in fact true, that the procedure in question was
“unusual” in comparison with how the General Assembly proceeds.
• On page 29 of the initial report, Dr. Burton cites Senator Creighton Coleman’s
(D-Fairfield) opposition to the voter ID bill. While willing to use Senator
Coleman’s comments to show his opposition to the voter identification bill, Dr.
Burton earlier in his initial report on pages 8-9 discussed the Fairfield School
District bill without mentioning the fact that Senator Coleman was also
sponsoring that legislation, which the Department of Justice found to have a
racially discriminatory effect. Dr. Burton has relied on the Fairfield County
School District bill as showing racial discrimination, while pointing to one of its
primary supporter’s—Senator Coleman—opposition to the voter ID bill. It is
difficult to determine whether Dr. Burton is arguing that Senator Coleman acts
with racial motivations, or does not.
33 Case 1:12-cv-00203-CKK-BMK-JDB Document 157-2 Filed 08/08/12 Page 36 of 104
• Page 31 of Dr. Burton’s initial report features a line stating, “a Senator from
Charleston . . .” without informing readers who the Senator is.
• Later on page 31 of the initial report, Dr. Burton opines that the General
Assembly did not hold enough public hearings and states, “[t]o my knowledge,
there were only two public hearings on the bill.” Dr. Burton fails to provide
information related to the number of public hearings held on the voter
identification bill by House and Senate committees in the period 2009-2011.
• On page 41 of his initial report, Dr. Burton reports the findings of a newspaper
reporter’s analysis of precinct-level data and concluded that voter ID would have
an adverse effect upon black voters. Dr. Burton does not discuss the methodology
employed by the Associated Press reporter to come to these conclusions. Based
upon the story, it is difficult to determine how the AP arrived at their conclusions.
However, it would seem that a more credible source might be sought, if one
exists, on which to base such a claim. Without knowing the methodology used by
the AP, this analysis should be viewed with caution.
• On page 46 of his initial report, Dr. Burton states that local poll workers “tend to
know voters because they are hired locally.” Dr. Burton provides no data to
support this contention, nor does he explain how often poll workers know voters.
It is quite likely, even probable, that poll workers in rural counties will, in fact,
know many local voters. Logic would dictate, however, that this would become
less likely in urban and suburban counties where most voters in South Carolina
live today.
34 Case 1:12-cv-00203-CKK-BMK-JDB Document 157-2 Filed 08/08/12 Page 37 of 104
• On page 6 of his supplemental report, Dr. Burton states that Lieutenant Governor
McConnell was forced to “call the Senate to order twice, apparently due to chaos
in the chamber.” As a casual observer of the legislative process, the writer knows
that legislative bodies frequently must be called to order numerous times to
restore deliberations, and without more information concerning this incident, it
would not be warranted to conclude that anything of an inappropriate or of a
racially motivated nature occurred during this Senate proceeding.
In other portions of the initial and supplemental reports, Dr. Burton draws conclusions
without addressing alternative explanations. Some examples include:
• On page 21 of his initial report, Dr. Burton does not consider the possibility that
the bill on third-party voter registration efforts could be a direct consequence of
the much publicized abuses of ACORN when it came to registering fictitious
persons or registering voters already registered to vote. South Carolina is not the
only state that has passed or is considering such legislation.
• On page 44 of his initial report, Dr. Burton indicates that the legislature has not
appropriated funds to implement various provisions of the Voter ID law. Dr.
Burton does not indicate the basis for his conclusion.
• On page 16 of his supplemental report, Dr. Burton does not allow for the fact that
legislative walkouts are a way of voicing opposition to majority rule in legislative
bodies. Dr. Burton argues that since this involves the Legislative Black Caucus,
the failure of the majority in the House to agree with the Caucus members who
walked out of the House, demonstrates disregard for black political interests, but
Dr. Burton did not interview anyone about this walkout.
35 Case 1:12-cv-00203-CKK-BMK-JDB Document 157-2 Filed 08/08/12 Page 38 of 104
• On page 17 of his supplemental report, Dr. Burton indicates that the special order
has been used seven times in the past decade. A perusal of the seven cases shows
the Senate has used this procedure to deal with controversial bills as a way of
getting a vote on legislation that is not supported by two-thirds of the Senate
membership. In other words, there is a history of the General Assembly using this
procedure to deal with controversial bills as a way of dealing with controversial
legislation.
In his introduction, Dr. Burton states the following: “I conclude that South Carolina’s
Law was intended to suppress the growing strength of the African American vote” (Burton Initial
Report 2012, 2). Yet, Dr. Burton never produces any persuasive evidence, either direct or circumstantial, in his reports to support such a contention. In fact, many of the assumptions, sources of information, and methods employed by Dr. Burton raise serious concerns about his conclusions. The evidence presented in the first half of my rebuttal report illustrates the dramatic progress made in South Carolina since the passage of the Voting Rights Act. In my opinion, Dr.
Burton’s attempts to argue that discriminatory intent lay behind the passage of the voter ID law are simply not borne out by his analysis or the evidence, or lack thereof, on which he relies.
B. Specific Rebuttal to Arrington Report
Much like Dr. Burton’s initial report, Dr. Arrington does not indicate that he interviewed
any of the members of the General Assembly, or other political leaders, who had a role in the
passage of the voter ID law. Interviewing available political figures would have been helpful in
getting a sense of their motivations for supporting the law rather than making broad assumptions
and assertions which may not be based in reality.
36 Case 1:12-cv-00203-CKK-BMK-JDB Document 157-2 Filed 08/08/12 Page 39 of 104
In portions of his initial report, Dr. Arrington presents research from one perspective
without apparently giving consideration to other perspectives. In other cases, Dr. Arrington
draws conclusions for which other alternative explanations exist. Examples of this pattern
include:
• On page 20 of his initial report, Dr. Arrington fails to mention that Timothy Scott,
a black conservative Republican, voted for the voter ID bill in 2010. An
interview with Congressman Scott would have provided some perspective as to
his motivations, as the sole black Republican in the House, for voting for the bill.
• On page 24 of his initial report, Dr. Arrington asserts that African American
members of the Senate voted for a bill that contained a voter ID provision because
they were “casting a strategic vote.” There is no indication that Dr. Arrington
interviewed any of the black members of Senate on this issue. Without interviews
with the African American members of the Senate, there is no basis for Dr.
Arrington to conclude that these votes were “strategic.” This is speculation on
Dr. Arrington’s part.
• On page 25 of the initial report and with regard to the South Carolina General
Assembly not approving student IDs as an acceptable form of photo ID, Dr.
Arrington gives no consideration to the possibility that the General Assembly may
have been motivated by concerns over out-of-state students who are not domiciled
in South Carolina voting in South Carolina elections rather than race. This same
concern would apply to all college students—both those at HBCUs and non-
HBCUs.
37 Case 1:12-cv-00203-CKK-BMK-JDB Document 157-2 Filed 08/08/12 Page 40 of 104
• On page 32 of his initial report, Dr. Arrington implies that the bureaucracy of the
DMV might create an obstacle for those without photographic identification
currently. Any inconvenience affects all South Carolinians regardless of race. In
addition, Dr. Arrington seems to be relying on surveys that are six years old at
this point and may not give a sense of the present day situation at DMV offices.
• On page 35 of his initial report, Dr. Arrington states that the voter ID law would
essentially “turn back the clock” on advances in voting rights since the 1960s.
However, the Supreme Court did not find this to be the case in Crawford v.
Marion County Election Board. Dr. Arrington produces no evidence that the
rights of voters have been curtailed in the other state that have photographic
identification requirements to prove one’s identity at the polls.
• On pages 35-36 of his initial report, Dr. Arrington alludes to the history of
discrimination in Alabama and Mississippi as it pertained to the limited hours of
business for voter registration offices. However, Dr. Arrington does not point to
any evidence that the hours maintained by voter registration offices in South
Carolina posed this problem. This is part of a pattern to be found in both Drs.
Arrington and Burton’s report where they seem to be arguing that the racial
environment of the state has been frozen since the 1960s. These generalizations
are simply not borne out by present-day practices.
• On page 43 of the Arrington initial report, there is another example of this
anachronistic thinking in which Dr. Arrington argues local elections officials will
arbitrarily throw out provisional ballots based upon racial discrimination and
partisan reasons in the future. However, Dr. Arrington produces no data to
38 Case 1:12-cv-00203-CKK-BMK-JDB Document 157-2 Filed 08/08/12 Page 41 of 104
support this contention, nor did he apparently attempt to canvas the county
elections boards to see the racial composition of those boards. That racially
integrated elections boards would engage in such overt practices seems unlikely.
• On page 45 of his initial report, Dr. Arrington argues that the chance of an
election being decided by one vote is “virtually nil.” However, there are certainly
cases where a candidate does, in fact, win by one vote or by a small number of
votes. To say that the chance of one vote, or even a small number of votes,
deciding elections is “virtually nil” is simply not true. Some examples over the
past 12 years include:
o In 2008, Stephen Wukela won the mayoral election in Florence, South Carolina, by one vote over the incumbent
mayor Frank Willis (South Carolina Elections Commission
2008).
o In July 2012, Walter Hundley won a special election for the South Carolina Senate District 41 race by 14 votes out of
6,100 cast (Behre 2012).
o In May 2012, the winning candidate of a school board election in Texas won by one vote (Bahari 2012).
o In 2008, Al Franken won the U.S. Senate contest in Minnesota by 225 votes (Minnesota Secretary of State
2008).
o In 2000, George W. Bush won the state of Florida by 537 votes over Al Gore in 2000. The election was decided by
39 Case 1:12-cv-00203-CKK-BMK-JDB Document 157-2 Filed 08/08/12 Page 42 of 104
.009 percent of all votes cast (Florida Elections Division
2000).
In other portions of both his initial and supplemental reports, Dr. Arrington makes
assertions for which he provides no data to substantiate his claims. Examples are:
• On page 17 of his initial report, Dr. Arrington asserts that asking voters to obtain
identification cards creates “substantial costs to individuals who do not have
ready transportation.” Dr. Arrington does not provide any data of the actual
numbers of individuals who do not have a way to get to the county election office
or DMV to obtain photo identification. With the absence of any data, Dr.
Arrington can only speculate on how much the costs for such individuals might
be.
• On page 28 of his initial report, Dr. Arrington speculates on the motives of the
legislature as it applies to a compromise over the issue of whether citizens
needing a birth certificate to obtain a DMV-issued ID will be charged a fee.
However, Dr. Arrington does not provide specific numbers for how many citizens
in South Carolina lack a birth certificate. Also, he engages in conjecture on the
ease for citizens to go to the county elections commission versus the DMV.
There is no data given to support his conclusion.
• On page 10 of his supplemental report, Dr. Arrington discusses the debate of the
voter ID bill in the Senate and states “some Senators” objected to the use of the
special order procedure that allowed for a vote on a bill on the basis of simple
majority rule. Dr. Arrington then says that “perhaps” these Senators objected due
to how rare the procedure was. However, Dr. Arrington (1) fails to detail who the
40 Case 1:12-cv-00203-CKK-BMK-JDB Document 157-2 Filed 08/08/12 Page 43 of 104
“some Senators” are and (2) does not give any sort of number to indicate how
often the procedure is used.
• On page 11 of the Arrington supplemental report, Dr. Arrington does not state
who the “several Black senators” are that he references.
• On page 21 of his supplemental report, Dr. Arrington cites South Carolina
Elections Commission studies revealing high voter confidence in the process.
However, he does not state whether he analyzed those studies for himself, nor
does he provide these surveys for examination. Without information, such as the
standard error of the survey, size and composition of the sample, and margin of
error, the validity of the survey cannot be judged.
Another problem is that Dr. Arrington uses some sources that are questionable.
Examples include:
• Dr. Arrington cites a newspaper article on page 25 of his initial report about a
precinct level analysis, but it is not clear what methodology was employed by the
reporter. Based upon his expertise in the field of elections, Dr. Arrington
certainly has the ability to provide a more accurate analysis of his own rather than
relying on a newspaper reporter whose expertise in this area is not known.
• On page 32 of his initial report, Dr. Arrington uses www.fitsnews.com. As
mentioned above, this hardly seems to be a reputable source upon which to rely
without corroboration from other more mainstream media sources.
In sum, the above rebuttals raise questions about the way in which Dr. Arrington drew his
conclusions about the racially discriminatory intent of the legislature when it passed the
41 Case 1:12-cv-00203-CKK-BMK-JDB Document 157-2 Filed 08/08/12 Page 44 of 104
photographic identification law. Dr. Arrington presents evidence from one perspective without
fully exploring other explanations. The most troubling aspects of his reports are when he makes
broad assertions for which he offers no clear evidence or data on which those conclusions rest.
This is most evident when Dr. Arrington tries to explain the motivations of groups of political
actors without actually interviewing anyone to see what motivated them to either support or
oppose the voter identification bill. This pattern as well as the other specific rebuttals raise
concerns about the validity of Dr. Arrington’s conclusions in his report, and in my opinion, his
conclusions are not reliable.
VII. Conclusions
While no reasonable person would deny that South Carolina had a long history of racial
discrimination, the data in this report demonstrate that South Carolina has made enormous strides
in the area of civil rights, including minority voting rights, since the 1960s. Furthermore, there is
no evidence that the legacy of state-sponsored discrimination is affecting the ability of African
Americans, or other racial minorities, to vote currently. In fact, South Carolina in the past two
years has elected its first minority person, Nikki Halley, who is a person of South Asian Indian ancestry, to the office of Governor. It has also elected Timothy Scott, an African American
Republican, to represent the state’s First Congressional District, a majority-white district. Both these events would have been almost unimaginable immediately after the passage of the Voting
Rights Act in 1965.
The voter registration data and election turnout data presented in Exhibits 1-5 indicate that voter registration for all minorities, especially African Americans, has risen significantly over the last four decades, and the voting rates of black citizens now approach the levels of white voters. In 2008, non-white voting rates surpassed those of white voters. While the expert
42 Case 1:12-cv-00203-CKK-BMK-JDB Document 157-2 Filed 08/08/12 Page 45 of 104
witnesses for the defendants and defendant-intervenors in this case argue that the ability of racial
minorities to participate in the political process in South Carolina has not changed substantially
in the decades since the passage of the Voting Rights Act, that argument is not borne out by the
data and analysis that is presented in this case.
The number of black officeholders has increased dramatically since the early 1970s, with
the greatest increase coming in the decade from 2002-2012. At all levels of state government
and local government, the percentage of African American officeholders is approaching, or in
some cases exceeding, the percentage of the statewide black population. While, many black
officeholders are elected in districts or counties with majority black populations, this is not
exclusively the case.
As detailed previously, expert witnesses, Dr. Vernon Burton and Theodore Arrington,
have argued that the state still suffers from racial discrimination, and they point to rather
unconvincing circumstantial evidence to argue this case. However, I have pointed out some
problems with the reasoning that underlie these assertions. One of the points argued consistently
by Drs. Arrington and Burton is that voting patterns in South Carolina are racially polarized.
However, the expert witnesses do not, in my opinion, consider a variety of non-racial
explanations for this polarization in voting in South Carolina. One of the most notable
oversights on their part is the role that ideology, not race, is playing in this polarized
environment. Research has indicated that a mixture of factors including ideology, national political trends, political culture, and religion, collectively helps to explain this phenomenon more than any one single factor.
Throughout their initial and supplemental reports, both Drs. Arrington and Burton reject the possibility that voter fraud, including impersonation voter fraud, is a problem South Carolina
43 Case 1:12-cv-00203-CKK-BMK-JDB Document 157-2 Filed 08/08/12 Page 46 of 104
lawmakers need to address, and Drs. Arrington and Burton further reject the idea of the public’s
confidence in the electoral system is injured by occurrences of voting fraud. Evidence has been
presented in this rebuttal report that voter fraud, including impersonation voter fraud, does in fact occur at an alarming rate across the nation and in South Carolina, and that this affects the public’s view of the electoral system.
Drs. Burton and Arrington present circumstantial evidence that attempts to show racially discriminatory intent in the passage of the voter identification bill. I disagree with that assessment. In my opinion, the expert witnesses do not present a convincing case of circumstantial evidence of racially discriminatory intent and do not present any direct evidence of discriminatory intent.
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I declare under penalty of perjury that the report is true and correct, to the best of my knowledge.
Executed on the 6th of August 2012
Scott E. Buchanan
45 Case 1:12-cv-00203-CKK-BMK-JDB Document 157-2 Filed 08/08/12 Page 48 of 104
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Bullock, Charles S. III and Scott E. Buchanan. Forthcoming in 2012. “Untangling the Mystery of Alvin Greene.” Journal of Political Science.
Bullock, Charles S. III and Ronald Keith Gaddie. 2009. The Triumph of Voting Rights in the South. Norman, OK: University of Oklahoma Press.
Burton, Orville Vernon. 2012. “Expert Report on South Carolina’s Voter Identification Law, Act R54.
Campbell, Angus. 1960. “Surge and Decline: A Study of Electoral Change.” Public Opinion Quarterly 24:397-418.
Carter, Dan T. 1995. The Politics of Rage: George Wallace, the Origins of the New Conservatism, and the Transformation of American Politics. New York: Simon & Schuster.
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Dewan, Shaila and Robbie Brown. 2010. “All Her Life, Nikki Haley Was the Different One.” New York Times. 13 June. Accessed: 29 June 2012 http://www.nytimes.com/2010/06/14/us/politics/14haley.html?_r=1.
Edgar, Walter. 1998. South Carolina: A History. Columbia: The University of South Carolina Press.
Elazar, Daniel. 1972. American Federalism. New York: Thomas Y. Crowell.
Florida Elections Division. 2000. November 7, 2000 General Election. Accessed 27 July 2012: http://enight.dos.state.fl.us/Index.asp?ElectionDate=11/7/2000&DATAMODE=.
Haley, Nikki. 2012. “Nikki R. Haley, Governor of South Carolina.” South Carolina Office of the Governor. Accessed 29 June 2012 http://www.governor.sc.gov/About/Pages/GovernorBio.aspx.
Graham, Cole Blease, Jr. and William V. Moore. 1994. South Carolina Politics and Government. Lincoln: University of Nebraska Press.
Graham, Cole Blease, Jr., Laurence Moreland, and Robert P. Steed. 2010. “South Carolina: The New Politics of the Palmetto State.” In The New Politics of the Old South: An Introduction to Southern Politics, eds. Charles S. Bullock, III and Mark J. Rozell. Lanham, MD: Rowman and Littlefield.
Green, John C., Lyman A. Kellstedt, Corwin E. Smidt, and James L. Guth. 2010. “The Soul of the South: Religion and Southern Politics in the New Millennium.” In The New Politics of the Old South: An Introduction to Southern Politics, eds. Charles S. Bullock, III and Mark J. Rozell. Lanham, MD: Rowman and Littlefield.
Greene, Melissa Faye. 2003. Praying for Sheetrock: A Work of Nonfiction. New York: Ballantine Books.
Hendrickson, Paul. 2003. Sons of Mississippi: A Story of Race and Its Legacy. New York: Alfred A. Knopf.
Hood, M.V., III and William Gillespie. 2012. “They Just Do Not Vote Like They Used To: A Methodology to Empirically Assess Election Fraud.” Social Science Quarterly 93 (1): 76- 94.
Hunt, Dianna. 2012. “Democratic Precinct Chairwoman Candidate Indicted in Vote Fraud Case in Fort Worth.” Star-Telegram. 1 May. Accessed 4 August 2012 http://www.star-telegram.com/2012/04/30/3924376/democratic-precinct-chairwoman.html#storylink=cpy.
Jacobson, Gary. 2004. The Politics of Congressional Elections, 7th ed. New York: Pearson/Longman Press.
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Key, V.O. 1949. Southern Politics in State and Nation. New York: Alfred A. Knopf.
Littlefield, Susan-Elizabeth. 2010. “Power Shift in Fairfield County School Board Moves Forward.” 9 February. Accessed: 22 June 2012 http://www.wistv.com/Global/story.asp?S=11921810.
Minnesota Secretary of State. 2008. 2008 U.S. Senate Race. Accessed 27 July 2012 http://www.sos.state.mn.us/Modules/ShowDocument.aspx?documentid=3218.
Niemi, Richard G. and Herbert F. Weisberg, eds. 1993. Controversies in Voting Behavior, 3rd Edition. Washington, D.C.: CQ Press.
Ottenhoff, Patrick. 2012. “In South Carolina, the Economy May Favor Romney.” The Atlantic. 18 January. Accessed: 9 July 2012 http://www.theatlantic.com/politics/archive/2012/01/in-south-carolina-the-economy-may-favor-romney/251579.
Rasmussen Reports. 2012. “73% Think Photo ID Requirement Before Voting Does Not Discriminate.” 16 April. Accessed: 6 August 2012 http://www.rasmussenreports.com/public_content/politics/general_politics/april_2012/73_think_photo_id_requirement_before_voting_does_not_discriminate.
Rees, Chris. 2004. “Florence Man Arrested, Charged with Voter Fraud.” 7 October. Accessed 4 August 2012 http://www.wistv.com/Global/story.asp?s=2401141.
Ruoff, John C. and Herbert E. Buhl, III. 2006. Voting Rights in South Carolina, 1982-2006. A Report of RenewtheVRA.ORG. Accessed: 6 July 2012 http://www.protectcivilrights.org/pdf/voting/SouthCarolinaVRA.pdf.
Sanford, Mark. 2010. “Veto of H. 4331, R-135.” Accessed 23 June 2012 http://dc.statelibrary.sc.gov/bitstream/handle/10827/2794/GOV_Veto_H4431_2010-2-24.pdf.
South Carolina Elections Commission. Annual Report of the South Carolina Elections Commission. 1968-2008. Columbia, South Carolina: South Carolina Elections Commission.
South Carolina Elections Commission. 2008. 2008 Republican and Democratic Primary Accessed: 27 July 2012 http://www.enr-scvotes.org/SC/Florence/4207/6094/en/summary.html.
South Carolina Elections Commission. 2010. South Carolina Registration Demographics for House Seat 117. Accessed: 29 June 2012 http://www.scvotes.org/statistics/by_south_carolina_house_seats.
South Carolina Elections Commission. Voter History. 2010-2012. Accessed: 15 June 2012 http://www.scvotes.org/statistics/voter_history.
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South Carolina General Assembly. South Carolina Legislative Manual. 1971-2011. Columbia, South Carolina: South Carolina General Assembly.
Stanley, Harold W. 1987. Voter Mobilization and the Politics of Race: The South and Universal Suffrage , 1952-1984. New York: Praeger.
“State Felon Voting Laws.” 2012. ProCon.org. Accessed: 3 August 2012 http://felonvoting.procon.org/view.resource.php?resourceID=286.
Toeplitz, Shira. 2010. “S.C. Dems Reject Rawl Appeal.” Politico. 18 June. Accessed: 29 June 2012 http://www.politico.com/news/stories/0610/38704.html.
Tufte, Edward R. 1975. “Determinants of the Outcomes of Midterm Congressional Elections. American Political Science Review. 69:812-826.
Ulbrich, Holley H. 2010. “School District Organization and Governance in South Carolina.” Strom Thurmond Institute of Government & Public Affairs. Accessed: 22 June 2012 http://sti.clemson.edu/index.php?option=com_docman&task=doc_download&gid=541&I temid=211.
United States Commission on Civil Rights. 1968. Political Participation. Washington, D.C.: United States Commission on Civil Rights.
United States Department of Commerce. Bureau of the Census. 1960-2010. Census of the United States. Washington, D.C.: United States Department of Commerce.
United States Department of Commerce. Bureau of the Census. 1970-2002. Statistical Abstract of the United States. Washington, D.C.: United States Department of Commerce.
United States Department of Commerce. Bureau of the Census. 1980-2010. Voting and Registration. Accessed: 15 June 2012 http://www.census.gov/hhes/www/socdemo/voting/publications/p20/index.html.
United States Department of Commerce. Bureau of the Census. 2010. Geographical Mobility/Migration. In the American Community Survey. Washington, D.C.: United States Department of Commerce. Accessed: 11 July 2012 http://www.census.gov/hhes/migration/files/acs/st-to-st/State_to_State_Migrations_Table_2010.xls.
United States Department of Commerce. Bureau of the Census. 2010. Census of the United States. Washington, D.C.: United States Department of Commerce.
United States Department of Justice. 2010. Act Number R136. Accessed: 30 June 2012 http://www.justice.gov/crt/about/vot/sec_5/pdfs/l_081610.pdf.
United States Department of Justice. 2012. Section 5 Objection Determinations, South Carolina. Accessed: 29 June 2012 http://www.justice.gov/crt/about/vot/sec_5/sc_obj2.php.
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United States v. Charleston County. 2003. 316 F. Supp. 2d 268. United States v. Georgetown County School District, South Carolina. 2008. Complaint. 2:08-cv- 00889-DCN. Accessed 30 June 2012 http://www.justice.gov/crt/about/vot/sec_2/georgetown_comp.pdf.
United States v. Georgetown County School District, South Carolina. 2008. Consent Decree. 2:08-cv-00889-DCN. Accessed 30 June 2012 http://www.justice.gov/crt/about/vot/sec_2/georgetown_cd.pdf.
University of Delaware Center for Political Communication. 2012. “National Survey Shows Support for Voter ID Laws Strongest Among Those with Negative Attitudes Toward African Americans.” 17 July. Accessed 6 August 2012 http://www.udel.edu/cpc/research/idrace2012/Voter_ID_and_Race_2012/Voter_ID_and_Race.html.
Verba, Sidney and Norman H. Nie. 1972. Participation in America. New York: Harper and Row.
Wolfinger Raymond E. and Steven J. Rosenstone. 1980. Who Votes? New Haven: Yale University Press.
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Appendix A
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Scott Eugene Buchanan, Ph.D. Department of Political Science and Criminal Justice The Citadel 171 Moultrie Street Charleston, SC 29409 843.953.4851 [email protected]
EDUCATION
Ph.D. Political Science, The University of Oklahoma, December 1999. Dissertation Title: "Perspectives on the Racial Threat Hypothesis: Testing a Theory of Southern Politics." Dissertation Chair: Ronald Keith Gaddie.
M.A. Political Science, Auburn University, June 1995. Thesis Title: "The Effects of the Abolition of the County-Unit System and Urbanization on the 1962 Georgia Gubernatorial Campaign." Thesis Chair: Robert A. Bernstein.
A.B. Political Science, The University of Georgia, June 1992.
ACADEMIC APPOINTMENTS
Associate Professor of Political Science August 2011— The Citadel, Charleston, South Carolina
• Assistant Professor of Political Science August 2009-July 2011.
Department Chair of Political Science August 2008-August 2009. Columbus State University, Columbus, Georgia
• Associate Professor (with tenure) August 2006-August 2009. • Assistant Professor August 2002-July 2006.
Assistant Professor of Political Science August 1999-May 2002. Gordon College, Barnesville, Georgia
Graduate Teaching Assistant August 1996-May 1999. The University of Oklahoma, Norman, Oklahoma
Adjunct Instructor September 1995-June 1996. Columbus College, Columbus, Georgia
HONORS AND AWARDS
Faculty member, Columbus State University Summer in Oxford program, 2009. Capital Campaign Grant, Columbus State University, 2003 & 2006. Faculty Development Grant, Columbus State University, 2003. Who’s Who in America, 2001-2008. John Halvor Leek Memorial Scholarship (University of Oklahoma), 1998-2000.
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TEACHING
The Citadel, 2009-Present
Introduction to Political Science Presidency State and Local Government (course developer) Southern Politics Political Parties and Interest Groups Civil Rights Policy Politics in Film
Columbus State University, 2002-2009
American Government American Government (Honors) State and Local Government Southern Politics (course developer) The Presidency Legislative Process Political Parties and Interest Groups Politics in Film (course developer) Political Science Research Methods Public Policy Senior Seminar on Public Policy
Gordon College, 1999-2002
American Government State and Local Government (course developer) Southern Politics (course developer) Comparative Politics
INTERNATIONAL TEACHING VISITS
Columbus State University Summer in Oxford Program, June 21-July 9, 2009.
SCHOLARLY ACTIVITIES
Books
Scott E. Buchanan. 2011. “Some of the People Who Ate My Barbecue Didn’t Vote for Me: The Life of Georgia Governor Marvin Griffin.” Nashville: Vanderbilt University Press.
Journal Articles
Scott E. Buchanan and Charles S. Bullock, III. Forthcoming in 2012. “Untangling the Mystery of Alvin Greene.” Journal of Political Science.
Scott E. Buchanan. 2012. "Runoff Voters Will Do the Darndest Things: A County-Level Analysis of the Martin/Jones Senate Runoff." American Review of Politics 32 (Winter): 301-317.
Scott E. Buchanan and DuBose Kapeluck. 2011. “Introduction: The Citadel Symposium on Southern Politics.” American Review of Politics 31 (Fall/Winter): 175-178.
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Scott E. Buchanan. 2005. “The Dixiecrat Rebellion: Long-Term Partisan Implications in the Deep South.” Politics and Policy 33 (December): 754-769.
Scott E. Buchanan. 2002. “The Realignment of 1964?” Politics and Policy 30 (March): 140-158.
Ronald Keith Gaddie, Charles S. Bullock, III, and Scott E. Buchanan. 1999. “What Is So Special About Special Elections?.” Legislative Studies Quarterly 24 (February):103-112.
Scott E. Buchanan. 1997. “The Effects of the Abolition of the County-Unit System on the 1962 Georgia Gubernatorial Campaign.” Southeastern Political Review 25 (September): 687-704.
Book Chapters
Scott E. Buchanan. 2009. “Issues and the Southern Voter in the 2008 Presidential Election.” In The 2008 Presidential Election in the South, eds. Branwell DuBose Kapeluck, Laurence W. Moreland, and Robert P. Steed. Fayetteville, Arkansas: The University of Arkansas Press.
Ronald Keith Gaddie and Scott E. Buchanan. 1998. “Oklahoma: GOP Realignment in the Buckle of the Bible Belt.” In The New Politics of the Old South, eds. Charles S. Bullock, III and Mark J. Rozell. Lanham, Maryland: Rowan and Littlefield Publishers.
Ronald Keith Gaddie and Scott E. Buchanan. 1997. “Republican Growth in Oklahoma.” In the Almanac of Oklahoma Politics, eds. Gary W. Copeland, Ronald Keith Gaddie, and Craig A. Williams. Stillwater, Oklahoma: Oklahoma Political Science Association.
Encyclopedia Articles
Scott E. Buchanan. 2008. “Georgia Politics.” In the Political Encyclopedia of U.S. States and Regions, ed. Donald P. Haider-Markel. Washington, D.C.: Congressional Quarterly Press.
Scott E. Buchanan. 2005. "County Unit System.” In The New Georgia Encyclopedia, ed. John Inscoe. Atlanta: Georgia Humanities Council.
Scott E. Buchanan. 2005. "Herman Talmadge.” In The New Georgia Encyclopedia, ed. John Inscoe. Atlanta: Georgia Humanities Council.
Scott E. Buchanan. 2005. “The Office of Governor.” In The New Georgia Encyclopedia, ed. John Inscoe. Atlanta: Georgia Humanities Council.
Scott E. Buchanan. 2004. "Marvin Griffin.” In The New Georgia Encyclopedia, ed. John Inscoe. Atlanta: Georgia Humanities Council.
Scott E. Buchanan. 2004. "Dixiecrat Movement.” In The New Georgia Encyclopedia, ed. John Inscoe. Atlanta: Georgia Humanities Council.
Scott E. Buchanan. 2004. "Joe Frank Harris.” In The New Georgia Encyclopedia, ed. John Inscoe. Atlanta: Georgia Humanities Council.
Scott E. Buchanan. 2004. "The Office of Lt. Governor.” In The New Georgia Encyclopedia, ed. John Inscoe. Atlanta: Georgia Humanities Council.
Scott E. Buchanan. 2004. “Three Governors Controversy.” In The New Georgia Encyclopedia, ed. John Inscoe. Atlanta: Georgia Humanities Council.
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Book Reviews
Scott E. Buchanan. 2003. "Congress at the Grassroots: Representational Change in the South, 1970-1998." Politics and Policy 31 (March): 186-188.
Scott E. Buchanan. 2003. “Legislative Labyrinth.” Politics and Policy 31 (December): 753-754.
Scott E. Buchanan. 1999. “Race, Politics, and Governance in the United States.” Social Science Quarterly 80 (September): 615-616.
Scott E. Buchanan. 1998. “God at the Grassroots, 1996: The Christian Right in the 1996 Elections.” APSA Legislative Studies Section Newsletter 21 (January): 29.
Publisher-Requested Book Reviews
Scott E. Buchanan. 2011. “Understanding American Politics and Government,” 2nd ed. Pearson.
Scott E. Buchanan. 2011. “Central Ideas in American Government,” Soomo Publishing.
Scott E. Buchanan. 2009. “Georgia Politics in a State of Change,” 1st ed. Pearson Longman.
Scott E. Buchanan. 2008. “Understanding American Politics and Government.” Longman.
Scott E. Buchanan. 2007. "American Government: Brief Version, 8th ed.” Houghton-Mifflin.
Scott E. Buchanan. 2007. "American Government: Historical, Popular, and Global Perspectives.” Wadsworth-Cengage Learning.
Scott E. Buchanan. 2007. "America’s New Democracy.” Penguin Academics.
Scott E. Buchanan. 2006. "American Government.” Wadsworth.
Scott E. Buchanan. 2006. "America’s New Democracy.” Longman.
Scott E. Buchanan. 2006. "Introduction to State and Local Politics.” Wadsworth.
Scott E. Buchanan. 2005. "The Enduring Democracy.” Wadsworth.
Scott E. Buchanan. 2001. "Keeping the Republic: Power and Citizenship in American Politics.” Houghton- Mifflin.
Conference Papers
Charles S. Bullock, III and Scott E. Buchanan. 2011. “Untangling the Mystery of Alvin Greene.” Presented at the annual meeting of the Southern Political Science Association, New Orleans, Louisiana, 6 January.
Scott E. Buchanan and Ronald Keith Gaddie. 2010. “The Shifting Vote in the Hill Country South, 1992- 2008.” Presented at the annual meeting of the Southern Political Science Association, Atlanta, Georgia, 8 January.
Scott E. Buchanan. 2008. "Runoff Voters Will Do the Darndest Things: A County-Level Analysis of the Martin/Jones Senate Runoff." Presented at the annual meeting of the Georgia Political Science Association, Savannah, Georgia, 14 November.
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Charles S. Bullock, III, Scott E. Buchanan, and Christopher Grant. 2008. "Political Success in African- American Participation." Presented at the biennial meeting of the Citadel Symposium on Southern Politics, Charleston, South Carolina, 7 March.
Scott E. Buchanan. 2004. “The Dixiecrat Rebellion: Long-Term Political Implications in the Deep South, 1948-1960." Presented at the biennial meeting of the Citadel Symposium on Southern Politics, Charleston, South Carolina, 5 March.
Scott E. Buchanan. 2003. "The Return of the Wool Hat Boys: The Unlikely Victory of Governor Sonny Perdue." Presented at the annual meeting of the Georgia Political Science Association, Pine Mountain, Georgia, 12 November.
Scott E. Buchanan and Craig A. Williams. 2002. “Redistricting in the Partisan Era: State Games & Federal Implications." Presented at the annual meeting of the American Political Science Association, Boston, Massachusetts, 30 August.
Charles S. Bullock, III and Scott E. Buchanan. 2002. "Bifactionalism and Friends and Neighbors Politics." Presented at the biennial meeting of the Citadel Symposium on Southern Politics, Charleston, South Carolina, 8 March.
Scott E. Buchanan. 2001. "Racial Threat in the News?: An Analysis of Media Coverage of Gubernatorial Elections in Three Southern States." Presented at the annual meeting of the Midwest Political Science Association, Chicago, Illinois, 20 April.
Scott E. Buchanan. 2000. "The Realignment of 1964?: A Comparison of the 1960 and 1964 Presidential Elections in the Deep South." Presented at the annual meeting of the Southern Political Science Association, Atlanta, Georgia, 10 November.
Scott E. Buchanan. 2000. “The Role of Race in the 1960 and 1964 Presidential Elections: A County-Level Analysis of South Carolina." Presented at the biennial meeting of the Citadel Symposium on Southern Politics, Charleston, South Carolina, 3 March.
Scott E. Buchanan. 1999. "Physical Proximity Racial Threat Voting: The Importance of Political Context," Presented at the annual meeting of the Southern Political Science Association, Savannah, Georgia, 6 November.
Ronald Keith Gaddie, Charles S. Bullock, III, and Scott E. Buchanan. 1998. “The Lost Sixth: Disappearing White Democrats in Southern Congressional Elections." Presented at the annual meeting of the American Political Science Association, Boston, Massachusetts, 5 September.
Scott E. Buchanan and Craig A. Williams. 1998. "Luther and Calvin Unheeded? The Protestant Understanding of the Christian Individual in the Secular State and the Contemporary Role of Religious Lobbies in Washington, DC." Presented at the annual meeting of the American Political Science Association, Boston, Massachusetts, 4 September.
Scott E. Buchanan. 1998. “Ecological Regression and White Voting Behavior." Presented at the biennial meeting of the Citadel Symposium on Southern Politics, Charleston, South Carolina, 5 March.
Ronald Keith Gaddie, Charles S. Bullock, III, and Scott E. Buchanan. 1997. “What Is So Special about Special Elections? Candidates and Constituency in Open Seat and Special Elections." Presented at the annual meeting of the Southern Political Science Association, Norfolk, Virginia, 6 November.
Scott E. Buchanan. 1997. "Race and Gubernatorial Politics in Louisiana and South Carolina." Presented at the annual meeting of the Southwest Political Science Association, New Orleans, Louisiana, 28 March.
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Ronald Keith Gaddie, Charles S. Bullock, III, and Scott E. Buchanan. 1996. "The Antecedent Effects of Redistricting and Retirement on Southern House Elections, 1992-1996." Presented at the annual meeting of the Southern Political Science Association, Atlanta, Georgia, 8 November.
Scott E. Buchanan. 1996. “Segregation and Gubernatorial Campaigns in the Deep South." Presented at the biennial meeting of the Citadel Symposium on Southern Politics, Charleston, South Carolina, 7 March.
Scott E. Buchanan. 1995. “The Effects of the Abolition of the County-Unit System on the 1962 Georgia Gubernatorial Campaign." Presented at the annual meeting of the Southern Political Science Association, Tampa, Florida, 3 November.
PROFESSIONAL ACTIVITIES
Organization Membership
Southern Political Science Association South Carolina Political Science Association Georgia Political Science Association Phi Kappa Phi Pi Sigma Alpha
Program Committees
Program Chair of Georgia Political Science Association, 2003-2004.
Conference Leadership
Executive Director, The Citadel Symposium on Southern Politics, 2009—. V.O. Key Book Award Committee, Southern Political Science Association, 2010. Georgia Political Science Association Ad Hoc Committee on Finance, 2007-2008. Chair of Nominating Committee, Georgia Political Science Association, 2005-2006. President of Georgia Political Science Association, 2004-2005. Vice President of Georgia Political Science Association, 2003-2004. Chair of McBrayer Award Committee, Georgia Political Science Association, 2003. Member of Georgia Political Science Association Executive Board, 2001-2003.
Editorial Experience
Editor, with DuBose Kapeluck. 2011. “The 2010 Citadel Symposium on Southern Politics.” American Review of Politics, 31 (Fall/Winter): 175-275.
Editorial Boards
Project Vote Smart Review Board, 2006-Present. Georgia Political Science Association Proceedings Editorial Board, 2005-Present. Georgia Journal of Public Policy, 2010-Present.
Manuscript Reviewer
Politics & Policy, 2003-Present. American Politics Research, 2009-Present. Georgia Journal of Public Policy, 2010-Present. University of South Carolina Press, 2010-Present. American Review of Politics, 2011-Present. Georgia Historical Quarterly, 2011-Present.
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Panel Chair
2011. “Elections and Voting Behavior: Congress and the Presidency,” at the annual meeting of the Georgia Political Science Association, Savannah, Georgia, 11 November.
2011. “South Carolina Politics” at the annual meeting of the South Carolina Political Science Association, Greenwood, South Carolina, 12 March.
2008. “2008 Elections: What Happened?” at the annual meeting of the Georgia Political Science Association, Savannah, Georgia, 14 November.
2007. “Georgia’s Political Past,” at the annual meeting of the Georgia Political Science Association, Savannah, Georgia, 16 November.
2006. “Voting, Money, and Elections,” at the annual meeting of the Georgia Political Science Association, Savannah, Georgia, 17 November.
2003. “Parties and Elections,” at the annual meeting of the Georgia Political Science Association, Savannah, Georgia, 1 February.
2002. “State Politics and Federalism,” at the annual meeting of the Georgia Political Science Association, Savannah, Georgia, 2 February.
2001. “Contemporary American Politics,” at the annual meeting of the Georgia Political Science Association, Hilton Head, South Carolina, 24 February.
2000. “Interpretations of Political Partisan Competition in the South,” at the annual meeting of the Southern Political Science Association, Atlanta, Georgia, 10 November.
Panel Discussant
2011. “South Carolina Politics,” at the annual meeting of the South Carolina Political Science Association, Greenwood, South Carolina, 12 March.
2011. “Undergraduate Student Research and Training,” at the annual meeting of the Southern Political Science Association, New Orleans, Louisiana, 8 January.
2010. “The Other Side of Federalism: Contemporary Analysis of State Governance,” at the annual meeting of the Georgia Political Science Association, Savannah, Georgia, 12 November.
2010. “The Retrospective (and Prospective) Panel on V.O. Key, Jr.’s Southern Politics,” at the annual meeting of the Southern Political Science Association, Atlanta, Georgia, 9 January.
2006. “Legislative Politics in the South,” at the biennial meeting of the Citadel Symposium on Southern Politics, Charleston, South Carolina, 3 March.
2002. “Issues in Southern Electoral Structures,” at the biennial meeting of the Citadel Symposium on Southern Politics, Charleston, South Carolina, 8 March.
2001. “Contemporary American Politics,” at the annual meeting of the Georgia Political Science Association, Hilton Head, South Carolina, 24 February.
Roundtable Participant
2011. “Election 2012 Prospects,” at the annual meeting of the Georgia Political Science Association, Savannah, Georgia, 11 November.
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2011. “Election 2010 in South Carolina,” at the annual meeting of the South Carolina Political Science Association, Greenwood, South Carolina, 12 March.
2007. “2008 Elections and Political Behavior in Georgia: More of the Same?” at the annual meeting of the Georgia Political Science Association, Savannah, Georgia, 16 November.
2006. “Election of 2006: Perils and Possibilities,” at the annual meeting of the Georgia Political Science Association, Savannah, Georgia, 17 November.
2005. “Election of 2006: Perils and Possibilities,” at the annual meeting of the Georgia Political Science Association, Savannah, Georgia, 11 November.
2003. “Elections of 2002 and 2004,” at the annual meeting of the Georgia Political Science Association, Pine Mountain, Georgia, 12 November.
2003. “Elections of 2002 and 2004,” at the annual meeting of the Georgia Political Science Association, Savannah, Georgia, 1 February.
2002. “Election of 2002,” at the annual meeting of the Georgia Political Science Association, Savannah, Georgia, 2 February.
Grants
2012 Citadel Foundation Faculty Development Grant of $1,100 to study the Civil Rights Collection at the National Archives.
2011 Citadel Foundation Research Grant of $3,000 for research project involving local government in the United Kingdom.
2011 Citadel Foundation Faculty Development Grant of $1,100 to study the Alexander Heard Papers at Vanderbilt University.
2011 Citadel Foundation Research Presentation Grant of $518 to attend the South Carolina Political Science Association, Greenwood, South Carolina.
2010 Citadel Foundation Research Presentation Grant of $1,440 to attend the Southern Political Science Association, New Orleans, Louisiana.
2010 Citadel Foundation Research Presentation Grant of $391 to attend the Georgia Political Science Association, Savannah, Georgia. 2009 Citadel Foundation Research Grant of $2,250 for research project involving Georgia Three Governors Controversy.
2009 Citadel Foundation Research Presentation Grant of $810 to attend the Southern Political Science Association, Atlanta, Georgia.
WORKSHOPS AND PROFESSIONAL DEVELOPMENT
The Citadel Online Teaching Academy, July-August 2010.
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UNIVERSITY SERVICE
University
Executive Director of The Citadel Symposium on Southern Politics, 2009— Columbus State University Admissions Policy Committee, 2004-2009. Faculty Advisor, Columbus State University College Republicans, 2004-2009. Faculty Advisor, Pi Sigma Alpha, Upsilon Sigma Chapter, 2003-2009.
College
Curriculum and Instruction Committee, 2010— College of Arts and Letters Post-Tenure Review Committee, 2007-2009. Faculty Senator, Columbus State University Faculty Senate, 2007-2010. College of Arts and Letters Dean Search Committee, 2007-2008. College of Arts and Letters Personnel Committee, 2007-2008. Chair, College of Arts and Letters Personnel Committee, 2006-2007. College of Arts and Letters Faculty Development Committee, 2005-2009. Nominating Committee for USG Teaching and Research Awards, 2005-2007. College of Arts and Letters Curriculum Committee, 2002-2006.
Department
Political Science Personnel Committee, 2007-2008. Political Science Hiring Procedure Ad Hoc Committee, 2005. Political Science Internship Director, 2004-2008. Political Science Curriculum Revision Ad Hoc Committee, 2003-2004.
COMMUNITY SERVICE
Organizational Membership
Sons of the American Revolution, MGen. William Moultrie Chapter, 2010— Coordinator SAR Bronze Medal JROTC Awards, MGen. William Moultrie Chapter, 2011— Sons of the American Revolution, Coweta Falls Chapter, 2005-2009.
Invited Speaker
Speaker, “Marvin Griffin and Georgia Politics,” St. Simons Literary Guild, St. Simons, Georgia, 8 February 2012.
Speaker, “Marvin Griffin and Georgia Politics,” First Baptist Church, Augusta, Georgia, 21 January 2012.
Sons of the American Revolution, Coweta Falls Chapter, Columbus, Georgia, 14 July 2011.
Friends of the Daniel Library, Charleston, South Carolina, 26 April 2011.
“God and Government,” Scots Kirk Presbyterian Church, Summerville, South Carolina, 8 June-6 July, 2010.
Sons of the American Revolution, Coweta Falls Chapter, Columbus, Georgia, 9 April 2009.
“God and Government,” Christian Education Series, 1st Presbyterian Church, Columbus, Georgia, 22 October 2008—19 November 2008.
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Harris County Rotary Club, Pine Mountain, Georgia, 6 August 2008.
International Student Training Detachment, Ft. Benning, Georgia, March 26, 2008.
Boy Scout Troop, Troop 777, Columbus, Georgia, 14 May 2007.
Constitution Day Speaker, Wynnbrook Christian School, Columbus, Georgia, 26 September 2006.
Daughters of the American Revolution, George Walton Chapter, Columbus, Georgia, 7 September 2006.
Sons of the American Revolution, Coweta Falls Chapter, Columbus, Georgia, 13 April 2006.
LIGHT Composition and Grammar Seminar, Columbus, Georgia, 5 April 2005.
Sons of the American Revolution, Coweta Falls Chapter, Columbus, Georgia, 13 January 2005.
Daughters of the American Revolution, George Walton Chapter, Columbus, Georgia, 4 September 2003.
East Columbus Rotary Club, Columbus, Georgia, 24 June 2003. Manchester Kiwanis Club, Manchester, Georgia, 10 July 2000.
Consulting
Hope VI Project, Columbus, Georgia, 2005-2007.
Other Service
League of Women Voters Panel, Columbus, Georgia, 15 November 2004. League of Women Voters Panel, Columbus, Georgia, 9 October 2003. St. Anne’s School History Fair Judge, Columbus, Georgia, 25 February 2003.
MEDIA CONTRIBUTIONS AND INTERVIEWS
Electronic
ABC News WCSC-TV (Charleston, SC) CBS News WLTZ-TV (Columbus, GA) Fox News Radio WMAZ-TV (Macon, GA) MSNBC WRBL-TV (Columbus, GA) NBC News WRCG-AM (Columbus, GA) WCBD-TV (Charleston, SC) WSB-AM (Atlanta, GA) WCIV-TV (Charleston, SC) WTVM-TV (Columbus, GA)
Atlanta Journal-Constitution Environment & Energy Publishing Albany (GA) Herald Houston Chronicle Associated Press Los Angeles Times Barnesville (GA) Herald-Gazette Macon (GA) Telegraph Charleston Post and Courier New York Times Columbus (GA) Ledger-Enquirer Newsweek
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Southern Political Report Sunlight Foundation San Antonio Express-News The State (Columbia, SC) Spartanburg Herald-Journal USA Today
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EXHIBIT 1
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Exhibit 1
Voter Registration Rates for whites and non-whites prior to the Voting Rights Act of 1965 (VRA) and immediately after implementation of the VRA
Source: Political Participation
Pre-VRA Pre-VRA Post-VRA Post-VRA White Non-white White Non-white Registration Registration Registration Registration State Percentage Percentage Percentage Percentage
Alabama 69.2 19.3 89.6 51.6 Georgia 62.6 27.4 80.3 52.6 Louisiana 80.5 32.0 93.1 58.9 Mississippi 69.9 6.7 78.4 42.9 South Carolina 75.7 37.3 81.7 51.2
Deep South Avg. 70.7 24.6 85.1 51.8
Arkansas 65.5 48.1 72.6 62.8 Florida 74.8 51.2 81.4 63.6 North Carolina 96.8 46.8 79.9 50.4 Tennessee 72.9 69.5 80.6 71.7 Texas **** **** 53.2 61.6 Virginia 57.0 33.0 60.8 55.6
Rim South Avg. 48.7 36.5 68.0 59.9
South 55.3 30.8 73.1 56.0
Notes: Percentages computed using the 1960 voting age population for each state and the region. Reported registration rates both pre-VRA and post-VRA were based on a number of different sources reported in Political Participation. Figures are missing for Texas prior to 1965 because the state did not maintain such data.
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EXHIBIT 2
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Exhibit 2
Racial registration for South Carolina, 1968-2012
Source: South Carolina Elections Commission Reports
Black White Non-white Non- Registration Registration Registration Year Indian Asian Hispanic Other Black White white Percentage Percentage Percentage
1968 78 62 **** **** 200,778 625,096 200,918 54.1 69.8 54.1 1970 96 98 **** **** 220,303 668,397 220,497 57.9 61.5 58.0 1972 161 175 **** **** 260,749 772,603 261,085 60.7 64.3 60.1 1974 180 216 **** **** 261,110 736,602 261,506 60.8 61.3 60.2 1976 219 406 **** **** 284,876 827,810 285,501 66.3 68.9 65.7 1978 286 485 **** **** 291,846 804,742 292,617 67.9 67.0 67.4 1980 467 865 **** **** 319,826 914,363 321,158 53.7 58.4 52.3 1982 525 122 **** **** 341,709 886,963 342,356 57.3 56.6 55.8 1984 715 865 **** **** 388,948 1,005,186 390,528 65.2 64.2 63.7 1986 816 1,220 **** **** 366,942 928,898 368,978 61.6 59.3 60.1 1988 1,061 1,901 416 1,037 384,362 1,048,952 388,777 64.5 67.0 63.4 1990 1,064 1,858 583 386 354,700 996,216 358,591 51.3 53.9 48.5 1992 1,592 3,053 1,359 **** 381,524 1,149,516 387,528 55.2 62.2 52.4 1994 1,818 3,182 1,616 **** 370,351 1,122,585 376,967 53.6 60.8 51.0 1996 2,947 5,091 3,752 **** 478,047 1,324,927 489,837 69.2 71.7 66.2 1998 3,834 6,459 5,526 **** 536,248 1,469,699 552,067 77.6 79.6 74.6 2000 1,868 8,367 8,234 4,083 599,692 1,643,956 622,244 73.9 79.6 67.8 2002 2,990 9,017 7,977 4,076 533,282 1,490,026 557,342 65.7 72.1 60.7 2004 3,987 10,787 11,759 7,461 625,452 1,656,016 659,446 77.1 80.2 71.9 2006 4,412 11,646 15,376 9,316 661,432 1,750,536 702,182 81.5 84.7 76.5 2008 4,622 13,927 21,279 12,629 721,045 1,778,779 773,502 88.9 86.1 84.3 2010 4,866 16,180 24,503 13,084 738,748 1,832,982 797,381 78.6 75.4 60.8 2012 5,259 17,867 27,298 13,923 765,227 1,901,025 829,574 81.5 78.2 63.3
Note: The percentage of the population registered to vote is based on the voting age population (VAP) for each demographic.
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EXHIBIT 3
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Exhibit 3
Racial turnout data for South Carolina general elections, 1970-2010
Source: South Carolina Elections Commission Reports
Percentage Non- White Non-white Non-white White white Turnout Turnout of Election Year Turnout Turnout Percentage Percentage Turnout
1970 372,755 111,550 55.8 50.6 23.0 1972 533,812 152,546 69.1 58.4 22.2 1974 416,126 120,799 56.5 46.2 22.5 1976 620,878 192,170 75.0 67.3 23.6 1978 485,761 157,567 60.4 53.8 24.5 1980 696,901 222,580 76.2 69.3 24.2 1982 497,900 189,908 56.1 55.5 27.6 1984 754,155 262,476 75.0 67.2 25.8 1986 572,810 197,509 61.7 53.5 25.6 1988 796,542 244,471 75.9 62.9 23.5 1990 608,871 184,588 61.1 51.5 23.3 1992 949,572 286,637 82.6 74.0 23.2 1994 749,877 203,243 66.8 53.9 21.3 1996 908,503 294,983 68.6 60.2 24.5 1998 817,195 281,289 55.6 51.0 25.6 2000 1,082,784 350,749 65.9 56.4 24.5 2002 832,582 284,354 55.9 51.0 25.5 2004 1,197,422 433,734 72.3 65.8 26.6 2006 843,917 260,763 48.2 37.1 23.6 2008 1,340,312 590,047 75.4 76.3 30.6 2010 970,989 387,599 53.0 48.6 28.5
Note: The South Carolina Elections Commission reports voter turnout on the basis of white/non- white racial categories.
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EXHIBIT 4
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Exhibit 4
Racial registration and turnout data for South Carolina Democratic Party primaries, 1978- 2010
Source: South Carolina Elections Commission Reports
Percentage Non- White Non-white Non-white White white Turnout Turnout of Primary Year Turnout Turnout Percentage Percentage Turnout
1978 320,446 133,953 41.2 48.0 29.5 1980 259,970 125,144 31.6 42.7 32.5 1982 223,142 124,401 25.9 38.7 35.8 1984 242,260 130,739 26.9 36.4 35.1 1986 224,106 134,626 25.4 39.3 37.5 1988 218,599 115,985 25.0 35.1 34.7 1990 123,870 93,675 12.9 27.2 43.1 1992 161,858 112,125 15.6 31.8 40.9 1994 177,999 136,241 16.5 37.6 43.4 1996 99,224 107,130 8.2 24.9 51.9 1998 75,542 73,715 5.3 13.8 49.4 2000 101,238 93,588 6.7 16.2 48.0 2002 44,343 70,003 3.0 13.0 61.2 2004 77,371 106,917 5.0 17.8 58.0 2006 58,942 87,120 3.4 12.7 59.6 2008 83,832 110,559 5.0 16.6 56.9 2010 71,176 128,221 4.0 16.4 64.3
Note: The South Carolina Elections Commission does not report voter statistics for the Democratic Party primary prior to 1978.
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EXHIBIT 5
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Exhibit 5
Racial registration and turnout data for South Carolina Republican Party primaries, 1978- 2010
Source: South Carolina Elections Commission Reports
Non- White white White Non-white Turnout Turnout Year Turnout Turnout Percent Percent
1978 23,629 320 3.0 0.1 1980 37,439 531 4.5 0.2 1982 22,014 320 2.6 0.1 1984 47,747 592 5.3 0.2 1986 58,199 752 6.6 0.2 1988 75,364 1,294 8.6 0.4 1990 100,835 2,337 10.5 0.7 1992 173,443 8,728 16.7 2.5 1994 298,390 4,340 27.7 1.2 1996 223,558 6,856 18.5 1.6 1998 173,373 3,033 12.1 .0 2000 189,435 8,488 12.5 1.5 2002 374,207 10,737 25.5 2.0 2004 343,397 14,434 22.0 2.4 2006 268,444 8,559 15.6 1.2 2008 277,078 8,241 16.5 1.2 2010 461,824 10,738 25.6 1.4
Note: The South Carolina Elections Commission does not report voter statistics for the Republican Party primary prior to 1978.
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EXHIBIT 6
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Exhibit 6
Census estimates of voter registration and voter turnout for various racial groups in South Carolina, 1980-2010
Source: U.S. Census Bureau estimates
Registered Voted
White, White, Year White Black non-Hispanic White Black non-Hispanic
1980 57.2 61.4 **** 51.7 51.3 **** 1982 54.5 53.3 **** 37.0 38.9 **** 1984 57.3 62.2 **** 47.9 51.4 **** 1986 56.4 58.8 **** 41.3 42.0 **** 1988 61.8 56.7 **** 52.3 40.7 **** 1990 56.2 61.9 **** 42.0 44.6 **** 1992 69.2 62.0 **** 61.6 48.8 **** 1994 62.8 59.0 **** 49.4 39.7 **** 1996 69.7 64.3 **** 56.2 49.9 **** 1998 67.9 68.0 68.4 48.8 42.8 49.3 2000 68.2 68.6 69.8 60.0 60.7 58.7 2002 66.2 68.3 68.2 45.1 48.7 46.4 2004 74.4 71.1 75.5 63.4 59.5 64.3 2006 60.2 67.8 63.5 41.2 43.5 48.9 2008 71.0 76.1 73.4 60.8 72.0 62.8 2010 67.1 68.6 69.4 48.5 53.7 50.4
Note: The Census Bureau did not compile individual state estimates by race until 1980. White, non-Hispanic category did not exist in Census estimates prior to 1998.
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EXHIBIT 7
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Exhibit 7
White Per Capita Income and White General Election Turnout by County, 2000-2010
Sources: U.S. Census Bureau, 2006-2010 American Community Survey; South Carolina Elections Commission Reports
County Per Capita Income 2000 2002 2004 2006 2008 2010 Abbeville $18,706 64.8 59.4 72.9 48.9 77.8 53.3 Aiken $27,622 66.4 57.2 75.4 49.6 77.1 53.4 Allendale $24,106 62.3 50.8 67.7 50.3 74.8 51.6 Anderson $23,863 67.1 53.7 71.4 48.2 74.9 50.6 Bamberg $23,523 68.3 61.4 74.7 51.4 78.9 59.8 Barnwell $22,058 77.1 57.1 73.6 50.9 78.1 58.2 Beaufort $38,283 67.3 58.5 72.9 48.3 76.6 55.8 Berkeley $25,808 62.2 57.4 73.8 46.4 71.4 48.0 Calhoun $26,103 73.9 62.2 76.5 51.3 80.1 62.0 Charleston $37,109 67.2 61.1 76.7 55.9 75.2 48.8 Cherokee $19,497 60.4 50.8 66.6 49.0 73.1 48.9 Chester $21,524 63.4 45.8 60.4 42.9 72.8 50.1 Chesterfield $20,005 63.6 47.8 69.7 42.5 73.2 51.2 Clarendon $21,702 69.7 60.7 71.7 45.7 76.6 55.5 Colleton $21,960 72.5 57.9 70.0 51.4 79.5 53.2 Darlington $25,362 65.8 60.4 74.1 45.4 77.2 56.7 Dillon $18,884 55.3 38.7 57.2 37.2 78.0 47.8 Dorchester $27,825 61.9 54.3 69.3 44.0 69.6 47.9 Edgefield $25,666 66.8 55.1 73.1 50.5 78.8 56.1 Fairfield $27,078 70.9 60.1 74.0 54.4 79.3 63.6 Florence $27,745 65.2 55.8 72.8 47.7 78.2 55.2 Georgetown $30,429 70.6 59.0 74.1 46.3 78.8 56.8 Greenville $28,830 68.1 57.1 74.9 48.9 76.9 53.4 Greenwood $25,773 65.6 52.8 68.8 50.1 80.0 56.1 Hampton $21,643 61.8 55.6 64.9 51.9 77.2 56.7 Horry $27,704 62.3 51.4 66.6 41.2 72.9 47.5 Jasper $24,362 60.5 50.5 64.4 36.3 74.7 50.0 Kershaw $24,456 67.6 55.2 72.9 53.0 77.8 62.7 Lancaster $21,894 65.5 51.2 71.5 46.9 72.3 52.7 Laurens $20,805 64.9 58.8 70.3 46.0 74.6 51.0 Lee $19,657 67.3 56.2 72.1 45.7 81.8 59.7 Lexington $28,493 68.7 61.8 72.9 49.6 75.5 57.6 Marion $28,564 63.4 50.2 71.0 40.9 72.7 51.5 Marlboro $23,406 48.6 43.7 58.6 35.2 65.2 44.5 McCormick $18,691 71.4 69.7 79.3 58.7 81.6 66.7 Newberry $26,623 72.3 63.7 75.3 55.7 81.2 62.2 Oconee $25,195 66.8 61.5 76.0 51.5 76.3 51.5 Orangeburg $25,727 67.9 57.1 71.6 44.6 74.1 52.1 Pickens $21,341 63.4 54.5 73.1 47.6 74.3 51.1 Richland $33,779 67.1 60.1 72.0 50.1 75.1 57.0 Saluda $21,627 74.3 59.2 73.6 54.5 81.3 60.2 Spartanburg $24,193 63.6 48.7 72.1 46.9 73.3 51.4 Sumter $24,368 60.4 53.1 70.0 41.8 74.1 54.1 Union $21,090 68.9 60.4 72.2 50.1 79.3 55.8 Williamsburg $20,194 69.6 59.7 73.5 47.0 80.9 59.3 York $28,519 64.8 48.4 72.4 49.0 76.7 55.3
Average $24,822 66.0 55.8 71.3 47.9 76.3 54.4
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EXHIBIT 8
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Exhibit 8
Non-white Per Capita Income and Non-white General Election Turnout by County, 2000- 2010
Sources: U.S. Census Bureau, 2006-2010 American Community Survey; South Carolina Elections Commission Reports
County Per Capita Income 2000 2002 2004 2006 2008 2010 Abbeville $12,055 55.7 57.9 72.0 43.7 82.1 52.8 Aiken $15,963 57.7 50.3 66.6 39.4 76.3 49.6 Allendale $10,603 49.4 40.5 57.0 32.1 72.0 43.0 Anderson $15,060 56.9 49.4 65.2 37.5 75.9 44.6 Bamberg $12,028 55.6 54.9 69.2 39.5 74.8 51.5 Barnwell $12,437 65.5 49.2 67.2 38.4 76.5 51.6 Beaufort $16,558 58.5 51.5 65.2 33.9 75.4 45.9 Berkeley $17,265 60.4 56.7 71.2 40.9 77.7 48.9 Calhoun $14,425 59.2 53.3 66.1 39.5 79.9 56.3 Charleston $15,016 58.1 55.1 70.0 45.9 75.6 45.5 Cherokee $12,259 51.6 47.0 60.9 32.6 76.2 48.9 Chester $11,903 50.2 39.8 53.1 29.8 83.3 51.4 Chesterfield $12,260 52.6 48.7 66.5 34.2 77.2 48.3 Clarendon $11,893 57.3 54.4 62.0 37.1 75.2 50.0 Colleton $12,017 62.7 49.1 64.2 37.2 79.3 50.0 Darlington $13,126 56.5 54.9 68.2 35.3 75.7 54.2 Dillon $10,857 47.6 34.1 49.1 26.8 73.7 38.8 Dorchester $16,554 59.4 52.9 66.6 39.9 75.7 48.0 Edgefield $12,113 56.0 50.5 64.7 39.5 80.3 55.3 Fairfield $14,093 58.8 55.5 67.3 42.1 83.2 58.7 Florence $13,878 54.0 50.0 65.1 35.1 75.0 48.0 Georgetown $12,962 56.3 51.8 67.7 35.3 77.4 50.7 Greenville $16,097 58.6 50.8 68.6 35.4 75.1 42.8 Greenwood $14,521 53.9 44.6 59.2 36.7 78.0 48.4 Hampton $12,376 56.4 54.5 61.2 44.9 77.9 52.5 Horry $13,459 52.1 46.4 60.5 31.0 72.6 40.8 Jasper $13,122 56.9 54.2 60.3 35.1 77.2 50.7 Kershaw $15,074 58.8 52.4 68.0 45.2 79.0 58.3 Lancaster $12,031 53.2 52.6 67.9 37.9 77.5 49.9 Laurens $13,933 51.9 55.0 67.2 35.0 77.6 48.1 Lee $9,415 52.8 47.9 65.1 35.5 79.7 55.1 Lexington $16,285 56.8 52.8 64.6 32.6 73.5 47.1 Marion $10,619 53.1 44.5 60.6 30.1 76.1 50.6 Marlboro $11,693 43.5 43.5 54.1 28.8 72.2 44.6 McCormick $10,280 54.0 62.8 75.6 47.5 82.1 58.1 Newberry $13,597 54.7 54.1 67.4 39.0 77.8 50.0 Oconee $14,444 54.0 51.6 67.8 39.2 78.2 43.2 Orangeburg $12,839 58.8 54.5 67.1 37.6 75.6 50.2 Pickens $15,499 56.5 47.1 66.1 33.8 73.8 42.7 Richland $18,213 59.7 54.3 67.1 38.8 76.2 51.1 Saluda $14,545 56.5 46.9 62.4 37.8 80.0 54.5 Spartanburg $15,147 53.9 45.1 66.0 32.8 75.3 45.0 Sumter $13,455 51.2 47.1 63.6 34.2 74.7 50.1 Union $13,542 53.9 49.2 68.1 39.4 82.8 55.9 Williamsburg $10,255 56.2 53.8 64.9 38.3 78.2 54.0 York $16,678 55.6 42.8 65.7 35.6 78.0 49.5
Average $13,531 55.5 50.3 64.9 36.9 77.1 49.7 8 Case 1:12-cv-00203-CKK-BMK-JDB Document 157-2 Filed 08/08/12 Page 81 of 104
EXHIBIT 9
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Exhibit 9
Comparison of Non-white and White Voter Turnout
Sources: South Carolina Elections Commission Reports
Poorest Counties 2000 2002 2004 2006 2008 2010
Lee 52.8 47.9 65.1 39.1 80.5 55.1 Williamsburg 56.2 53.8 65.0 38.3 78.2 54.0 McCormick 54.0 62.8 75.6 47.5 82.1 58.1 Allendale 49.4 40.5 57.0 32.1 72.0 43.0 Marion 53.1 44.5 60.6 30.1 76.1 50.6
Non-white Turnout Average 53.1 49.9 64.7 37.4 77.8 52.2
Wealthiest Counties
Beaufort 67.3 58.5 73.0 48.3 76.6 55.6 Charleston 67.2 61.1 76.7 55.9 75.2 48.8 Richland 67.1 60.6 72.0 50.1 75.1 57.0 Georgetown 70.6 59.0 74.1 46.3 79.1 56.8 Greenville 68.1 57.1 74.9 48.9 76.9 53.4
White Turnout Average 68.1 59.3 74.1 49.9 76.6 54.3
Notes: Turnout rates for the poorest counties are the non-white voter turnout. Turnout for the wealthiest counties is exclusively the white voter turnout.
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EXHIBIT 10
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Exhibit 10
Black members of United States House of Representatives from South Carolina and South Carolina General Assembly, 1971-2011
Sources: South Carolina Legislative Manual
United States House of General Year Representatives Assembly
1971 0 3 1973 0 4 1975 0 13 1977 0 13 1979 0 13 1981 0 16 1983 0 18 1985 0 20 1987 0 20 1989 0 21 1991 0 21 1993 1 25 1995 1 24 1997 1 34 1999 1 33 2001 1 31 2003 1 31 2005 1 32 2007 1 35 2009 1 38 2011 2 38
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EXHIBIT 11
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Exhibit 11
Black elected officials in South Carolina, 1970-2002; 2012
Sources: Statistical Abstract of the United States for 1970-2002; data collected by author for 2012.
Total (including U.S. County and House and City Level Law Year General Assembly) Offices Enforcement Education
1970 38 32 4 2 1971 61 42 9 7 1972 66 48 9 6 1973 99 59 12 24 1974 116 77 12 24 1975 132 78 15 26 1976 148 90 16 29 1977 182 99 21 49 1978 229 122 20 74 1979 222 125 22 62 1980 238 138 20 66 1981 227 139 14 58 1982 235 151 14 55 1984 263 167 5 70 1985 310 188 3 99 1986 329 205 3 101 1987 340 200 5 115 1988 352 210 5 118 1989 373 217 6 129 1990 396 237 6 132 1991 405 246 12 126 1992 413 255 12 124 1993 450 269 15 140 1997 542 323 12 172 1998 554 342 11 167 1999 542 333 8 167 2000 540 334 8 164 2001 534 335 9 158 2002 547 345 12 158 2012 931 518 138 235
Notes: Data on black elected officials was not collected from 1994-1996 or after 2002. County/city level offices include county councilors, probate judges, clerk of courts, county auditors, county treasurers, mayors, and city councilors. Law enforcement includes judges, solicitors, sheriffs, coroners, and magistrates. Education includes school board members and members of college and university boards of trustees elected by the General Assembly.
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EXHIBIT 12
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Exhibit 12
Cases of Voter Fraud
Impersonation Voter Fraud
Jurisdiction: Alabama Date: March 2012 Type: Registration Fraud – Illegal Alien Registered and Voted Under Assumed Name Disposition: Convicted of Social Security fraud and theft of government funds Source: Brendan Kirby, “Baldwin man convicted of fraud voted regularly under name of U.S. citizen, records show,” Al.com, Mar. 6, 2012. Link: http://blog.al.com/live/2012/03/baldwin_man_convicted_of_fraud.html.
Jurisdiction: Texas Date: May 2012 Type: Voter impersonation fraud, conspiracy Disposition: Indicted Sources: Dianna Hunt, “Democratic Precinct Chairwoman Candidate Indicted in Voter Fraud Case in Fort Worth,” Star-Telegram.com, May 1, 2012; “Democrat Indicted for In-Person Voter Impersonation in TX,” PJMedia. Links: http://www.star-telegram.com/2012/04/30/3924376/democratic-precinct- chairwoman.html#storyLink=cpy%3C/DIV%3E%3CBR%3EMore#storyLink=cpy; http://pjmedia.com/tatler/2012/05/01/democrat-indicted-for-in-person-voter-impersonation-in- tx/.
Jurisdiction: Pennsylvania City Commissioner Al Schmidt, “Voting Irregularities: Voting Irregularities in Philadelphia County, 2012 Primary Election,” Report to City Commissioners, July 2012. http://www.scribd.com/doc/100467031/Voting-Irregularities-Report.
Jurisdiction: Virginia Date: November 2008 Type: Registration fraud, impersonation fraud Disposition: 38 charged; 26 under investigation Source: Mark Bowes, “Va. Investigates Voter Fraud,” Richmond Times-Dispatch, Apr. 22, 2012. Link: http://www2.timesdispatch.com/news/news/2012/apr/22/tdmain01-va-investigates-voter- fraud-ar-1859666/.
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Jurisdiction: Washington, D.C. Date: April 2012 Type: Attempted impersonation fraud Disposition: Investigated Source: Mike DeBonis, “D.C. Elections Officials Condemn O’Keefe Voting Ploy,” Washington Post, Apr. 10, 2012. Link: http://www.washingtonpost.com/blogs/mike-debonis/post/dc-elections-officials-condemn- okeefe-voting-ploy/2012/04/10/gIQASbeY8S_blog.html.
Absentee Ballot Fraud
Jurisdiction: Alabama Date: July 14, 2008 Type: Absentee Ballot Fraud Disposition: Alleged Source: Audie Cornish, “Alabama County Accused Of Voter Fraud,” NPR, July 14, 2008. Link: http://www.npr.org/templates/story/story.php?storyId=92510441.
Jurisdiction: Alabama Date: 1985 Type: Absentee Ballot Fraud Disposition: Convicted Source: Hans von Spakovsky, “Absentee Ballot Fraud: A Stolen Election in Greene County, Alabama,” The Heritage Foundation, Sept. 5, 2008. Link: http://www.heritage.org/research/reports/2008/09/absentee-ballot-fraud-a-stolen-election- in-greene-county-alabama#_ftnref37.
Jurisdiction: Alabama Date: 1998 (1994 election) Type: Furnishing false information to election officials, voting more than once, and providing false information on absentee ballot affidavits Disposition: 11 Convicted Source: Hans von Spakovsky, “Absentee Ballot Fraud: A Stolen Election in Greene County, Alabama,” The Heritage Foundation, Sept. 5, 2008. Link: http://www.heritage.org/research/reports/2008/09/absentee-ballot-fraud-a-stolen-election- in-greene-county-alabama#_ftnref37.
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Jurisdiction: Alabama Date: 2008 Type: voter fraud, forgery in the second degree, and possession of forged instruments (absentee ballots). Disposition: Convicted Source: Hans von Spakovsky, “Absentee Ballot Fraud: A Stolen Election in Greene County, Alabama,” The Heritage Foundation, Sept. 5, 2008 (citing Interview with Greg Biggs, Apr. 22, 2008). Link: http://www.heritage.org/research/reports/2008/09/absentee-ballot-fraud-a-stolen-election- in-greene-county-alabama#_ftnref37.
Jurisdiction: Alabama Date: 2004/5 elections Type: Absentee Ballot Fraud Disposition: Convicted – 13 counts Source: Hans von Spakovsky, “Absentee Ballot Fraud: A Stolen Election in Greene County, Alabama,” The Heritage Foundation, Sept. 5, 2008 (citing “Former Hale County Circuit Clerk Arrested on Voter Fraud Charges,” Assoc. Press, Mar. 18, 2008). Link: http://www.heritage.org/research/reports/2008/09/absentee-ballot-fraud-a-stolen-election- in-greene-county-alabama#_ftnref37.
Jurisdiction: Florida Date: Nov. 2011 Type: Absentee Ballot Fraud Disposition: Under Investigation Source: Melissa Sanchez, “Sister of absentee voter denies signing ballot collected in Hialeah,” The Miami Herald, Link: http://www.miamiherald.com/2012/08/02/2926694/sister-of-absentee-voter- denies.html#storylink=cpy.
Jurisdiction: Florida Date: Jan. 2012 Type: Absentee Ballot Fraud Disposition: Charged Source: “‘Madison 9’ attorney announces suit against state,” Assoc. Press, Real Clear Politics, Jan. 17, 2012. Link: http://www.realclearpolitics.com/news/ap/politics/2012/Jan/17/_quot_madison_9_quot__attorne y_announces_suit_against_state.html.
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Jurisdiction: Georgia Date: Nov. 2011 Type: Absentee Ballot Fraud Disposition: Indicted Source: Stephen Abel, “12 former officials indicted for voter fraud,” WALB News, Nov. 28, 2011 Link: http://www.walb.com/story/16104533/12-indicted-for-voter-fraud.
Jurisdiction: Georgia Date: Oct. 2011 Type: Absentee Ballot Fraud Disposition: Investigation dropped in exchange for immediate resignation from public office Source: Mark Winne and Tahnee Tangherlini, “Mayor resigns following voter fraud investigation,” WSBTV.com, Oct. 14, 2011. Link: http://www.wsbtv.com/news/news/local/mayor-resigns-following-voter-fraud- investigation/nFG6R/.
Jurisdiction: Illinois Date: Aug. 2010 Type: Absentee Ballot Fraud Disposition: Convicted Source: Matthew Walberg, “Former political workers sentenced for vote fraud,” Chicago Tribune, Aug. 4, 2010. Link: http://articles.chicagotribune.com/2010-08-04/news/ct-met-vote-fraud-sentence-0805- 20100804_1_eapen-and-ramos-anish-eapen-absentee-ballots.
Jurisdiction: Indiana Date: May 2012 Type: Absentee ballot voter fraud Disposition: Charged Source: Lexy Sheen, “Austin mayor, city employee charged with vote fraud,” WLKY.com, May 1, 2012. Link: http://www.wlky.com/news/local-news/indiana-news/Austin-mayor-city-employee- charged-with-vote-fraud/-/9718538/12395470/-/8pdn9f/-/index.html#ixzz22JtNOjSw.
Jurisdiction: Massachusetts Date: Mar. 2012 Type: Absentee Ballot Fraud Disposition: Charged Source: Kendall Hatch, “Documents shed light on Marlborough voter fraud case,” Marlborough Enterprise, Mar. 1, 2012. Link: http://www.metrowestdailynews.com/news/x1170540406/Documents-shed-light-on- Marlborough-voter-fraud-case#ixzz22OO866KI.
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Jurisdiction: Mississippi Date(s): April 2012 Type: NAACP official Lessadolla Sowers convicted of 10 counts of fraudulently casting absentee ballots Disposition: Convicted Source: Matthew Vadum, Mississippi NAACP Leader Sent to Prison for Ten Count of Voter Fraud, The Daily Caller, July 29, 2011. Link: http://dailycaller.com/2011/07/29/mississippi-naacp-leader-sent-to-prison-for-10-counts- of-voter-fraud/.
Jurisdiction: Mississippi Date: April 2011 Type: 10 counts of fraudulently casting absentee ballots Disposition: Convicted Source: Hans von Spakovsky, “The Constitution and the Right to Vote: Protecting Against Voter Fraud,” The Foundry, Oct. 4, 2011; “Mississippi NAACP leader sent to prison for 10 counts of voter fraud,” Daily Caller, July 29, 2011. Link: http://blog.heritage.org/2011/10/04/the-constitution-and-the-right-to-vote-protecting- against-voter-fraud/; http://dailycaller.com/2011/07/29/mississippi-naacp-leader-sent-to-prison-for-10-counts-of- voter-fraud/#ixzz22LN3dQfr.
Jurisdiction: Mississippi Date: May 2011 (2009 elections) Type: 2 Counts Absentee Ballot Fraud – knowingly voting as a disenfranchised, convicted felon Disposition: Convicted Source: “Canton Man Receives Maximum Sentence for Voter Fraud,” Press Release, Fox 40 TV, May 17, 2011. Link: http://www.fox40tv.com/news/local/story/Canton-Man-Receives-Maximum-Sentence-for- Voter/peWWWvP_Nk2wib6hpum2Lw.cspx.
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Jurisdiction: New York Date: 2011-2012 Type: 4 Public Officials Forging Mail-In Ballots Disposition: Convicted Sources: Eric Shawn, “Officials Plead Guilty in New York Voter Fraud Case,” Fox News, Dec. 12, 2011; Bob Gardinier, “Key witness expected to testify in vote fraud trial,” TimesUnion.com, Feb. 19, 2012; Solomon Syed, “New Accusations in Troy Ballot Fraud Case,” Your News Now, Apr. 16, 2012; Neil Munro, “Voter ID rules protect seniors, minorities from fraudsters, says new study,” Daily Caller, Aug. 2, 2012. Links: http://www.foxnews.com/politics/2011/12/21/officials-plead-guilty-in-new-york-voter- fraud-case/#ixzz22OqXDtLV; http://www.timesunion.com/local/article/Key-witness-expected-to-testify-in-vote-fraud- 3342987.php#ixzz22OSMI9Mp; http://hudsonvalley.ynn.com/content/top_stories/580751/new-accusations-in-troy-ballot-fraud- case/; http://dailycaller.com/2012/08/02/voter-id-rules-protect-seniors-minorities-from-fraudsters-says- new-study/#ixzz22OLjU1Db.
Jurisdiction: Ohio Date: Nov. 2011 (2010 general election) Type: Absentee Ballot Fraud Disposition: Alleged/Investigation Source: “Attorney General agents continue absentee ballot investigation,” Ironton Tribune, Nov. 24, 2011 Link: http://www.irontontribune.com/2011/11/24/attorney-general-agents-continue-absentee- ballot-investigation/.
Jurisdiction: West Virgina Date: 2012 Type: Absentee Voter Fraud Disposition: Two convicted and sentenced, one charged Source: “Restoring Voter Confidence,” MetroNews: The Voice of West Virginia, July 17, 2012 Link: http://www.wvmetronews.com/news.cfm?func=displayfullstory&storyid=53877.
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Jurisdiction: West Virginia Date: March 2012 Type: Falsifying over 100 absentee ballot applications and voting with some of the ballots himself Disposition: Convicted Source: Eric Shawn, “Former West Virginia sheriff, county clerk plead guilty to attempting to steal election,” Fox News, Mar. 7, 2012. Link: http://www.foxnews.com/politics/2012/03/07/former-west-virginia-sheriff-county-clerk- plead-guilty-to-attempting-to- steal/?test=latestnews&utm_medium=referral&utm_Source=pulsenews&utm_medium=referral &utm_Source=pulsenews&utm_medium=referral&utm_Source=pulsenews#ixzz22OJXMDh8.
Jurisdiction: West Virginia Date: Jan. 2012 (2010 Democratic Primary) Type: Absentee Ballot Fraud Disposition: Convicted Source: Associated Press, “West Virginia county sheriff, clerk to plead guilty in voter fraud case,” Fox News, Jan. 30, 2012. Link: http://www.foxnews.com/politics/2012/01/30/west-virginia-county-sheriff-clerk-to-plead- guilty-in-voter-fraud-case/#ixzz22Kirry9I.
Voting Twice
Jurisdiction: Colorado Date: Sept. 2011 Type: Voting twice – once at the polls, once by mail-in ballot – 2008/09 elections Disposition: Convicted Source: Sara Burnett, “Aurora man found guilty of voting twice multiple times,” Denver Post, Sept. 12, 2011 Link: http://www.denverpost.com/commented/ci_18879141?Source=commented-.
Jurisdiction: Florida Date: Nov. 2011 Type: Double Voting Disposition: Charged Source: Lamaur Stancil, “Vero Beach woman charged with voter fraud,” TC Palm, Dec. 30, 2011. Link: http://www.tcpalm.com/news/2011/dec/30/vero-beach-woman-charged-with-voter-fraud/.
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Jurisdiction: Idaho Date: 2009 Type: Voted twice Disposition: Convicted Source: “N. Idaho officials investigating possible voter fraud,” KIVI-TV, May 23, 2012. Link: http://www.kivitv.com/news/local/153103225.html.
Jurisdiction: North Carolina Date: November 2008 Type: Voting twice Disposition: Charged; plead guilty Source: “Four Wake residents charged with voting twice,” WTVD-TV, Aug. 12, 2011. Link: http://abclocal.go.com/wtvd/story?section=news%2Flocal&id=8301269.
Jurisdiction: North Carolina Date: August 2011 Type: Voting Twice Disposition: Charged Source: Hans von Spakovsky, “The Constitution and the Right to Vote: Protecting Against Voter Fraud,” The Foundry, Oct. 4, 2011. Link: http://blog.heritage.org/2011/10/04/the-constitution-and-the-right-to-vote-protecting- against-voter-fraud/.
Jurisdiction: Texas Date: June 2010 Type: Illegally returning a marked ballot and one count of improperly mailing another voter’s ballot Disposition: Convicted Source: Jeremy Roebuck, “Starr county commissioner convicted on voter fraud charges,” The Monitor, June 24, 2010. Link: http://www.themonitor.com/articles/fraud-40148-charges-grande.html.
Jurisdiction: Texas Date: Feb. 2012 Type: Registration, Voting Fraud – Nonresident Voting Disposition: Charged/ On Trial Source: Brett Shipp, “Medrano voter fraud trials begin,” WFAA.com, Feb. 14, 2012; Rudolph Bush, “Medrano sisters offer differing accounts in vote fraud trial,” Dallas Morning News, Feb. 15, 2012. Link: http://www.wfaa.com/news/local/Medrano-voter-fraud-trials-begin-139324463.html; http://www.dallasnews.com/news/community-news/dallas/headlines/20120215-medrano-sisters- offer-differing-accounts-in-vote-fraud-trial.ece.
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Felon Voting
Jurisdiction: Minnesota Date: Nov. 2011 Type: 30 Felon Voting Charges Disposition: Charged Source: “Four Hastings residents charged with voter fraud,” Hastings Star Gazette, Nov. 14, 2011. Link: https://secure.forumcomm.com/?publisher_ID=8&article_id=26211&CFID=549940835&CFTO KEN=89584087.
Jurisdiction: North Carolina Date: Dec. 2010 Type: Illegal Voting as a Felon on Probation Disposition: Indicted Source: Michael Barrett, “Ballot question leads to indictment,” Gaston Gazette, Dec. 16, 2010. Link: http://www.gastongazette.com/news/indictment-53524-gaston-county.html.
Jurisdiction: Tennessee Date: April 2011 Type: Illegally Voting as a Disenfranchised Felon Disposition: Convicted Source: “County Commissioner Charged With Felony Voter Fraud,” News Channel 5, April 14, 2011. Link: http://www.newschannel5.com/story/14450226/county-commissioner-charged-with- felony-voter-fraud.
Jurisdiction: Wisconsin Date: Mar. 22, 2012 (2008 election) Type: Providing false information to election official – registered and voted while on active probation for felony convictions Disposition: Convicted Source: “Van Hollen announces voting fraud conviction,” Bay View Compass, Mar. 22, 2012. Link: http://bayviewcompass.com/archives/10687.
Jurisdiction: Wisconsin Date: Jan. 2011 (2008 presidential election) Type: Illegally Voting as a Disenfranchised Felon on Probation Disposition: Convicted Source: “Milwaukee man charged with voting illegally in '08,” Assoc. Press, JS Online, Jan. 22, 2011. Link: http://m.jsonline.com/114419014.htm.
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Jurisdiction: Wisconsin Date: Nov. 2010 Type: Illegal Voting as a Felon on Probation Disposition: Charged Source: “Milwaukee Man Charged with Election Fraud,” TMJ 4, Nov. 2010 Link: http://www.todaystmj4.com/news/local/107048758.html?page=1.
Voter Registration Fraud
Jurisdiction: California Date: April 2012 Type: Improper registration Disposition: Investigated Source: Lachlan Markay, “City Council Election Decided by Five Voters After Fraud Investigation,” The Foundry, Apr. 12, 2012. Link: http://blog.heritage.org/2012/04/12/city-council-election-decided-by-five-voters-after- fraud-investigation/.
Jurisdiction: California Date: May 2012 Type: Registration fraud Disposition: Under investigation Source: Brad Branan, “The Public Eye: Capital-area voter fraud suspects have criminal histories,” The Sacramento Bee, May 13, 2012. Link: http://www.sacbee.com/2012/05/13/4486043/public-eye-bounty-hunting-at- heart.html#storyLink=cpy.
Jurisdiction: Illinois Date: April 2011 Type: False Registration – False Address to Establish Eligibility to Vote Disposition: Convicted, Sentenced Source: “Michael Collins sentenced for tax evasion, voter fraud,” KSDK.com. Apr. 13, 2011. Link: http://www.ksdk.com/news/article/254593/3/Swansea-man-sentenced-for-tax-evasion- voter-fraud.
Jurisdiction: Minnesota Date(s): 2004 Type: U.S. Sen. Amy Klobuchar, Voter Registration Fraud against Joshua Reed Disposition: Convicted Source: Matthew Vadum, Mississippi NAACP Leader Sent to Prison for Ten Count of Voter Fraud, The Daily Caller, July 29, 2011. Link: http://dailycaller.com/2011/07/29/mississippi-naacp-leader-sent-to-prison-for-10-counts- of-voter-fraud/.
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Jurisdiction: Mississippi Date: Indicted Aug. 18, 2010 Type: Felony False Registration – two instances Disposition: Two guilty pleas Source: J. Christian Adams, “Probation in MS voter fraud convictions,” Election Law Center, May 24, 2011. Link: http://electionlawcenter.com/2011/05/24/probation-in-ms-voter-fraud-convictions.aspx.
Jurisdiction: Nevada Date: August 2012 Type: “Felony voter fraud” (voter registration fraud) Disposition: Sentenced; fined $5,000 Source: Matthew Vadum, “Sentencing ACORN,” Frontpagemag.com, Aug. 18, 2011. Link: http://frontpagemag.com/2011/matthew-vadum/sentencing-acorn/.
Jurisdiction: New Mexico Date: March – July 2012 Type: Extortion, Bribery, Fraudulent registration; registered out-of-state resident to vote in a city election Disposition: Charged Sources: “4 More Charged in Sunland Park Voter Fraud Case,” San Francisco Chronicle, July 13, 2012; “Sunland Park Investigation Leads to Additional Voter Fraud Charges,” Las Cruces Sun-News, July 13, 2012; Shaun Griswold, “3 Texans Charged with Voter Fraud in Sunland Park,” KOB.com, July 13, 2012. Eric Shawn, “Voter fraud allegations in mayoral election rock New Mexico city,” FoxNews.com, May 17, 2012. Link: http://www.sfgate.com/news/article/4-more-charged-in-Sunland-Park-voter-fraud-case- 3706104.php; http://www.lcsun-news.com/las_cruces-news/ci_21071873/sunland-park-investigation-leads- additional-voter-fraud-charges; http://www.kob.com/article/stories/S2689245.shtml?cat=500; http://www.foxnews.com/politics/2012/05/17/voter-fraud-new-mexico-city/.
Jurisdiction: North Carolina Date: Feb. 2012 Type: Voter Registration and Voting Fraud Disposition: Charged Source: Mary Anderson, “Jackson charged with voter fraud in Montgomery County,” Courier- Tribune, Feb. 19, 2012. Link: http://www.courier-tribune.com/sections/news/local/jackson-charged-voter-fraud- montgomery-county.html-0.
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Jurisdiction: Ohio Date: March 2010 Type: Submission of fraudulent voter registrations (ACORN) Disposition: Settled Source: “Miller v. ACORN,” The 1851 Center for Constitutional Law, Mar. 11, 2010. Link: http://www.ohioconstitution.org/2010/03/11/acorn-settles-ohio-rico-case-folds-state- operation/.
Jurisdiction: South Carolina Date: October 2004 Type: Submission of fraudulent voter registration applications Disposition: Unknown Source: “Man Is Charged in Vote Forgery,” Augusta Courier, Oct. 8, 2004. Link: http://chronicle.augusta.com/stories/2004/10/08/met_430698.shtml.
Jurisdiction: Texas Date: May 8, 2010, election Type: Voter registration fraud – used hotel address to register to vote Disposition: seven Montgomery County residents indicted Source: Howard Roden, “Trial Set for Seven Road Utility District Voters,” YourWoodlandsNews.com, May 11, 2012.
Jurisdiction: Virginia Date: 2008 presidential election Type: Lying on voter registration forms Disposition: Indicted Source: Reed Williams, “Felons indicted on voter fraud charges in Richmond,” Richmond Times-Dispatch, April 3, 2012. Link: http://www2.timesdispatch.com/news/news/2012/apr/03/3/tdmain01-felons-indicted-on- voter-fraud-charges-in-ar-1813803/.
Jurisdiction: Washington Date: Feb. 2012 Type: Voter Registration Fraud Disposition: Charged Source: Adam Pearson, “Glenoma Woman Charged With Voter Fraud,” The Chronicle, Feb. 7, 2012. Link: http://www.chronline.com/news/local/article_f113de72-51f2-11e1-8675- 001871e3ce6c.html.
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Jurisdiction: Wisconsin Date(s): July 2012 Type: Using a Marriott hotel as a residence and using out of state IDs Disposition: District Attorney subpoenaed SEIU officials and investigation underway Source: Jonathon S. Tobin, “No Vote Fraud? Union Didn’t Get the Memo,” Commentary, July 19, 2012. Link: http://www.commentarymagazine.com/2012/07/19/no-vote-fraud-union-didnt-get-the- memo/.
Jurisdiction: Wisconsin Date: Nov. 2010 Type: Voter Registration Fraud Disposition: Convicted Source: Matthew Vadum, “The voter fraud hall of shame: Milwaukee voter fraud conviction makes ACORN’s 2010 total at least 15,” Daily Caller, Nov. 23, 2010. Link: http://dailycaller.com/2010/11/23/the-voter-fraud-hall-of-shame-milwaukee-voter-fraud- conviction-makes-acorn%e2%80%99s-2010-total-at-least-15/#ixzz22Ly635ZY.
ACORN 2010 Convictions Wisconsin – Voter Registration Fraud – Maria Miles (http://www.jsonline.com/news/crime/101418199.html), Frank Walton, Kendra Lynn Thill Pennsylvania – Voter Registration Fraud – Alexis Givner, Mario Grisom, and Eric L. Jones Florida – False Swearing in an Election – Convicted: Maurice Childress, Kashawn John, Liltovia Rhodes, Carlos Torres, Evangeline Williams, Lilkevia Williams, and Richard Williams Link: http://dailycaller.com/2010/11/23/the-voter-fraud-hall-of-shame-milwaukee-voter-fraud- conviction-makes-acorn%e2%80%99s-2010-total-at-least-15/#ixzz22LzOOeRT.
Illegal Voting
Jurisdiction: California Date: Within last two years Type: State Sen. Roderick Wright (D-Inglewood), voter fraud and perjury, lied when he said he lived in his Senate district; Former state Sen. Richard Alarcon, lied about where he lived and voted fraudulently. Disposition: Charged Source: Patrick McGreevy, “Some California Legislators Bring Arrest Records to Their Campaigns,” Los Angeles Times, May 5, 2012. Link: http://articles.latimes.com/2012/may/05/local/la-me-legislature-arrests-20120505.
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Jurisdiction: California Date: 2007, 2009 Type: Fraudulent registration, bribery, extortion Disposition: FBI subpoena and search warrant issued Sources: “Feds: Cudahy officials threw away ballots, manipulated two elections,” Los Angeles Times, July 12, 2012; Hector Becerra and Jeff Gottlieb, “In Cudahy, FBI probes allegations of election fraud,” Los Angeles Times, July 3, 2012. Link: http://latimesblogs.latimes.com/lanow/2012/07/cudahy-corruption-election-fraud.html; http://www.latimes.com/news/local/la-me-election-fraud-20120704,0,5517685.story. Source: Brad Branan, “The Public Eye: Capital-area voter fraud suspects have criminal histories,” The Sacramento Bee, May 13, 2012. Link: http://www.sacbee.com/2012/05/13/4486043/public-eye-bounty-hunting-at- heart.html#storyLink=cpy.
Jurisdiction: Louisiana Date: Nov. 2011 Type: Nonresident Voting Disposition: Alleged Source: Paul Murphy, “St. Bernard sheriff candidate questions votes,” WWLTV.com, Nov. 16, 2011. Link: http://www.wwltv.com/news/politics/St-Bernard-sheriff-candidate-questions-votes- 133998913.html.
Jurisdiction: Indiana Date: Feb. 2012 Type: Sheriff's Department employees and a Franklin police officer voted in the wrong precincts in the May 2010 primary Disposition: Alleged/Under Investigation Sources: Vic Ryckaert “Special prosecutor sought to investigate voting allegations involving 5 officers in Johnson County,” Indianapolis Star, Feb. 27, 2012; Gary R. Welsh, “Johnson County Law Enforcement Officers Accused Of Vote Fraud In Wake Of Charlie White Conviction,” Advance Indiana, Feb. 27, 2012. Links: http://www.indystar.com/article/20120227/LOCAL04/202270314/Special-prosecutor- sought-investigate-voting-allegations-involving-5-officers-Johnson- County?odyssey=tab|topnews|text|News; http://advanceindiana.blogspot.com/2012/02/johnson-county-law-enforcement-officers.html.
Jurisdiction: Minnesota Date: Oct. 2011 for 2008 general election Type: Illegal Voting Disposition: 113 Convictions Source: Jeff Davis, “113 convictions represent small fraction of total unlawful votes,” Minnesota Majority, Oct. 13, 2011. Link: http://www.minnesotamajority.org/Home/tabid/112/EntryID/375/Default.aspx.
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Jurisdiction: Mississippi Date: Nov. 2010 (2007 election) Type: Vote Buying Disposition: 16 Convictions Source: “Benton County should serve as warning against voter fraud,” The Bolivar Commercial, Nov. 2010. Link: http://www.bolivarcom.com/pages/full_story/push?article- Benton+County+should+serve+as+warning+against+voter+fraud+&id=9966994&instance=mai n_article.
Jurisdiction: Ohio Date(s): November 2009, May 2010, November 2010 and May 2011 elections Type: Illegal voting Disposition: Indictment Source: Kaylee Remington, “Gilchrist Indicted for Voter Fraud,” The Morning Journal, June 26, 2012. Link:http://morningjournal.com/articles/2012/06/26/news/doc4fe938c15f2c2243133674.txt?vie wmode=default.
Jurisdiction: Ohio Date: 2008, 2010 elections Type: Participating in same election in two different states Disposition: Under investigation Source: “Ohio elections chief asks for voter fraud probe,” NorthwestOhio.com, Mar. 24, 2012. Link: http://www.northwestohio.com/news/story.aspx?id=734222.
Jurisdiction: Pennsylvania Date: June 2012 Type: perjury, false swearing in official matters and unlawful voting – voted four times in one township when she lived in another Disposition: Charged Source: Pocono Record, June 11, 2012 “DA charges ex-Middle Smithfield golf director Pugh with voter fraud” Link: http://www.poconorecord.com/apps/pbcs.dll/article?AID=/20120611/NEWS/120619972/- 1/NEWS01.
Jurisdiction: Texas Date: July 2012 Type: Dead voters casting votes in May primary Disposition: Alleged Source: Julie Silva, “Allegations of voter fraud in Jim Wells, Brooks counties,” Caller.com, July 6, 2012. Link: http://www.caller.com/news/2012/jul/06/allegations-voter-fraud-jim-wells-brooks- counties/.
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Non-Citizen Voting
Jurisdiction: Florida Date: June 2012 Type: Noncitizen voting Disposition: Under investigation Source: Marc Caputo, “County elections chiefs to state: We won’t resume voter purge program,” Miami Herald, June 8, 2012. Read more here: http://www.miamiherald.com/2012/06/07/v-fullstory/2838176/county- elections-chiefs-to-state.html#storyLink=cpy Link: http://www.miamiherald.com/2012/06/07/v-fullstory/2838176/county-elections-chiefs-to- state.html#storyLink=cpy.
Jurisdiction: Florida Date: Feb. 2012 Type: Noncitizens Voting Disposition: Under Investigation Source: Andy Pierrotti, “Illegal voting story sparks criminal investigation,” WZVN-HD, Feb. 17, 2012. Link: http://www.abc-7.com/story/16961885/nbc2-investigation-sparks-criminal-investigation.
Jurisdiction: Maine Date: Jan. 2012 Type: Noncitizens Registered and Voting Disposition: Alleged Source: Eric Russell, “Secretary of State says noncitizens may have voted in Maine, urges election reform,” Bangor Daily News, Jan. 20, 2012. Link: http://bangordailynews.com/2012/01/20/politics/secretary-of-state-says-non-citizens-may- have-voted-in-maine-urges-election-reform/.
Jurisdiction: North Carolina Date: March 2012 Type: Illegal Voting – Noncitizen Disposition: Charged Source: Jim McNally, “Laghari: Voter Fraud Charges Have Been Upsetting,” Statesville Record & Landmark, March 8, 2012. Link: http://www2.statesville.com/news/2012/mar/08/3/laghari-voter-fraud-charges-have-been- upsetting-ar-2020206/.
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Government Report
Carter-Baker Commission Report, 2005—Bipartisan Commission on Federal Election Reform headed by former president Jimmy Carter and former secretary of State James Baker recommended stronger photo-identification requirements at the polls. Link: http://www1.american.edu/ia/cfer/report/full_report.pdf.
28 Case 1:12-cv-00203-CKK-BMK-JDB Document 157-3 Filed 08/08/12 Page 1 of 75 Exhibit C Case 1:12-cv-00203-CKK-BMK-JDB Document 157-3 Filed 08/08/12 Page 2 of 75
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
------) ) STATE OF SOUTH CAROLINA ) ) Plaintiff, ) CIVIL ACTION NO: ) v. ) 1:12-CV-203-CKK-BMK-JDB ) THE UNITED STATES OF AMERICA ) (Three Judge Court) And ERIC H. HOLDER, JR. in his ) Official capacity as Attorney General ) Of the United States, ) ) Defendants, ) ) And ) ) JAMES DUBOIS, et al., ) ) Defendant-Intervenors. ) ) ------)
DECLARATION OF THEODORE S. ARRINGTON, PH.D.
Case 1:12-cv-00203-CKK-BMK-JDB Document 157-3 Filed 08/08/12 Page 3 of 75
1. I am a recognized expert in the fields of voting processes, districting, reapportionment,
and racial and partisan voting patterns in the United States and Canada. I have practical experi-
ence in election administration, including detection of election fraud; and have been recognized
by a Federal Court as an expert in that area. I have been retained by the United States Depart-
ment of Justice to provide expert testimony in this case. I am compensated for my time at the rate of $250 per hour.
OBJECTIVES AND FINDINGS OF DECLARATION
2. I have been asked to determine whether the provisions of voting-related changes enacted
by the South Carolina General Assembly and signed into law by the Governor, as provided in
Section 5 of Act R54 (A27 H3003) (2011) were intentionally drawn to minimize, cancel out, or
reduce the ability of Minority (i.e., non-White) voters in South Carolina to participate equally in
the political process and elect representatives of their choice. This provision shall be called “pho-
to ID law” below.
3. Dr. Charles Haines Stewart III, Kenan Sahin Distinguished Professor of Political Science
at the Massachusetts Institute of Technology, has prepared a declaration on the effects of the
photo ID law. His methods are those I would have used if I had been asked to determine the ef-
fects of the proposed photo ID law. I have thoroughly reviewed his declaration, and agree with
his opinions based on his analysis of the data. His overall conclusion is that the effect of the law
bears more heavily on Minority citizens than on White citizens. First, he finds that Minorities are
more likely than Whites to lack a DMV-issued photo ID. Second, his analysis shows that Minori-
ties who lack a DMV photo ID have lower socio-economic status than Whites who lack a DMV
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photo ID, and the burden imposed by this requirement would be more onerous on those with low socio-economic status than on those with higher incomes and more education. Third, he finds that the provision that the ID issued by the Department of Motor Vehicles (DMV) must not be expired or suspended has a large impact on the number of registered voters who lack a photo ID that could be used for voting. This requirement, that the photo ID be current and not suspended, increases the disparity between Minority and White voters. Dr. Stewart shows that these differ- ences between the races are highly significant statistically, and that the data understate, rather than overstate, the differences. He concludes that Minority voters bear a disproportionate burden under the photo ID law.
4. It is my opinion that the photo ID law was enacted with a purpose of reducing the ability of Minority citizens to vote. The South Carolina legislators who supported the photo ID law knew that it would reduce the ability of citizens, who do not already have “current and valid pho- to ID” (always as defined by the photo ID law and South Carolina’s planned implementation), to vote. And they knew that Minority registered voters were more likely than White registered vot- ers to lack such valid photo ID. The provisions of the law that are claimed to mitigate the “bur- den” (South Carolina’s word in the Complaint, page 2) making it inconsequential, would not have significant effect. Therefore, South Carolina’s claim that the burden is slight or trivial in their Complaint (page 2) is incorrect. The claim that the law is intended to reduce the problem of voter impersonation fraud at the polls is pretextual, as the evidence indicates that this is not a problem, and certainly not a concern that outweighs the public interest in encouraging political participation and making sure the right to vote is equally accessible to all adult citizens of South
Carolina.
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5. I neither claim nor deny that this intent is motivated by racial animus. As Judge Kozinski
wrote in Garza v. Los Angeles Board of Supervisors, 918 F.2d 763 (9th Cir. 1990), “[t]here can
be intentional discrimination without an invidious motive[,]” and “[y]our personal feelings to-
ward minorities don’t matter; what matters is that you intentionally took actions calculated to
[discriminate].” Id. at 779 n.1 (concurring in part and dissenting in part). The Republican leader-
ship in both houses of the South Carolina General Assembly could act with a disregard for the
known disparate impact the photo ID law would foreseeably have on Minority voters, since these
voters almost never vote for Republicans. But when partisanship leads, or at least allows, deci-
sion-makers to take an action that they know has a disproportionate negative impact on Minority
voters, it is evidence of intent to discriminate (Id. at 779).
CREDENTIALS
6. The full range of my professional qualifications and experience is described in my cur-
riculum vitae. That vita includes a complete listing of all publications authored by me, and all of
the voting rights cases in which I have testified by affidavit, report, deposition, or courtroom tes- timony. I am Professor Emeritus of Political Science at The University of North Carolina at
Charlotte (UNC Charlotte). I received my Doctor of Philosophy degree from The University of
Arizona in 1973. I joined the UNC Charlotte faculty that year. I have taught both undergraduate
and graduate courses in topics such as research methodology, voting behavior, political parties,
interest groups, Congress, the Presidency, and Southern politics. I retired from the University in
July 2010. During my tenure at UNCC, I served as Chair of the Department of Political Science
for 18 years, and was elected President of the University Faculty. I was President of the North
Carolina Political Science Association in 2010-11. I have co-edited one book and coauthored two
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monographs, published 37 refereed articles, and delivered numerous papers in the last 40 years.
These works concern the effects of party and race on voting behavior and election administra-
tion.
7. For twelve years I was a member and for six years the chair of the Char-
lotte/Mecklenburg Board of Elections, the largest and most complicated county election office in
the Carolinas. During my tenure on the Board I attended annual training sessions provided by the
North Carolina State Board of Elections. These training sessions included instruction in the de-
tection and prevention of election fraud. A Federal Court recognized me as an expert on voting
fraud in United States v. Ike Brown, 494 F. Supp. 2d 440 (S.D. Miss. 2007).
8. My academic specialties have led to my retention as an expert witness in 41 lawsuits in-
volving voting rights. In 21 of these cases I have given trial testimony. In two of these cases I
was specifically asked to opine about the intent of policy makers. In Texas v. United States, Civil
Action No: 1:11-cv-01303 (D.D.C.), I was retained by the U.S. Department of Justice to testify
about whether the Congressional and Texas House of Representatives redistricting plans submit- ted to the court for pre-clearance under § 5 of the Voting Rights Act were intentionally drawn to discriminate against Minority voters.
9. The second intent case is the Ike Brown case cited above. I was retained as an expert wit- ness by the Department of Justice to examine whether there were fraudulent election practices in
Noxubee County, Mississippi that violated § 2 of the Voting Rights Act by intentionally denying
White citizens an equal opportunity to elect representatives of their choice and participate equal- ly in the political process. I determined on the basis of public records, statistical evidence, inter- views, newspaper analysis, study of depositions, and other sources that Mr. Ike Brown and others
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acted in collusion to violate Mississippi election laws and regulations with the intent to discrimi-
nate against White voters. Their activity did not include impersonation of properly registered
voters at the polls. Their methods did include manipulation of the absentee ballot processes and
providing unneeded and unwanted assistance to both absentee voters and in-person voters. As is
the case with virtually all established cases of election fraud, corruption of election officials was
necessary.
10. I was an expert witness retained by Republicans in redistricting litigation in both the 1990
and 2000 redistricting cycles in South Carolina, and I was retained to testify by the United States
in the Charleston County Commission § 2 case, challenging the dilutive aspects of the county’s
at-large election system. See United States v. Charleston County, 316 F. Supp. 2d 268 (D.S.C.
2003) aff’d 365 F.3d 241 (4th Cir. 2004). In all three cases I testified by affidavit, deposition, and
at trial.
STANDARDS FOR DETERMINING INTENT
11. The United States Supreme Court provides guidelines for courts in the kinds of evidence
that could be used to determine intent. As I understand it, the case that sets forth the guidelines
for determining intent is Village of Arlington Heights v. Metropolitan Housing Development
Corporation, 429 U.S. 252 (1977). The majority opinion in this case provides guidelines for the circumstantial evidence that would be probative in determining whether a decision was motivat- ed by discriminatory purpose or intent. In adopting its new procedures for the administration of the reauthorized § 5 of the Voting Rights Act, the U.S. Department of Justice accepted Con- gress’s invitation and included the analysis from Arlington Heights into its procedures. Section
51.57 of the department’s § 5 procedures, 28 C.F.R. Part 51, states that the department will con-
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sider the following factors in reviewing all types of voting changes:
(a) the extent to which a reasonable and legitimate justification for the change exists; (b) the extent to which the jurisdiction followed objective guidelines and fair and conventional procedures in adopting the change; (c) the extent to which the jurisdiction afforded members of racial and language Minority groups an opportunity to participate in the decision to make the change; (d) the extent to which the jurisdiction took the concerns of members of racial and language Mi- nority groups into account in making the change; and (e) the factors set forth in Arlington Heights: (1) whether the impact of the official action bears more heavily on one race than another; (2) the historical background of the decision; (3) the specific sequence of events leading up to the decision; (4) whether there are departures from the normal procedural sequence; (5) whether there are substantive departures from the normal factors considered; and (6) the legislative or administrative history, including contemporaneous statements made by the decision makers.
12. Governmental actions that have a discriminatory effect on a Minority group have often been defended with the argument that the discriminatory effect is merely an incidental result of an otherwise legitimate and racially neutral purpose, such as preventing vote fraud. However, the application of the Arlington Heights standard to a § 5 analysis means that the party objecting to preclearance is not required to prove that racial discrimination was the sole, primary, or dominant motivation behind a law that adversely affects a Minority group. As I understand it, a court may find that a policy with a clearly foreseeable and significant adverse effect on a
Minority population was enacted with discriminatory intent even if that adverse effect results from the application of an otherwise neutral state policy.
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13. In Reno v. Bossier Parish School Board, 528 U.S. 320 (2000), the Supreme Court set
forth a stringent version of discriminatory intent in § 5 cases – “intent to retrogress.” But when
Congress revised the language of § 5 in 2006, it made clear that the purpose standard intended
was “any discriminatory purpose.”
14. Political scientists, historians, other social scientists, and legal scholars have written
about the application of the Arlington Heights and Equal Protection clause standards to deter- mine intent in voting rights and other discrimination litigation. A selection of some of the most important of these articles and books is at the end of this declaration. Also at the end are the bib- liographic entries for other social science references that are cited in text by author and date, as is standard in Political Science. In determining intent of a legislature, one reviews the process that led to the adoption of the law and how it might be implemented with the use of depositions, newspapers, official minutes, and other records. The effect of the law is, of course, a critical piece of evidence. This scholarship indicates that one can only examine what individuals wrote,
said, and did, not what they were thinking. See Washington v. Davis 426 U.S. 242 (1976) and
Garza, 918 F.2d at 779. But one can determine what the legislators knew and would logically
foresee on the basis of evidence presented to them during the multi-year debate over the photo
ID law. This is often called “foreseeability.”
15. Institutional intention, the sum of a series of decisions by different officials, can also be
examined under the Arlington Heights standard. Not all legislators need to have acted with dis-
criminatory intent, just enough to make the difference. The photo ID law was passed on a party-
line vote with virtually all Republicans in favor and all Democrats (including all the Minority,
i.e., Black or African American, members) opposed. So the intent at issue in this case would be that of the proponents of the photo ID law.
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16. In determining intent, direct evidence would be statements of intent by policy makers in situations where candid rather than artful comments would be expected. Especially when expect- ing litigation, policy makers might be cautious in their public commentary, which would then be an unreliable guide to motive. Circumstantial evidence would be things like the sequence of
events or alternatives that are rejected or accepted as the bill progressed through the legislative process. Discriminatory purpose may be “inferred” indirectly from the totality of the relevant facts, including the fact, if it is true, that the law bears more heavily on one race than on another.
According to the 1982 Report on the Reauthorization of the Voting Rights Act by Congress, one may rely on: “direct and indirect circumstantial evidence, including the normal inferences to be drawn from the foreseeability of defendant’s actions” (S. Rep. No.417, 97th Cong, 2nd Sess. 27
(1982) p. 27 n. 108.)
17. Kousser (19911) lists elements that are of particular importance in intent cases involving
retrogression analysis. Here are some that might apply to this case:
1. Often the possible effects of policy maker’s actions are common knowledge or just logical results. These common knowledge effects are “keys” to what decision makers know and foresee. 2. The historical context of the decision (e.g., a history of discrimination) is always important in understanding the intent of policy makers. 3. Another important consideration is the personal backgrounds of key decision makers. Who or what do they campaign for or against? Who do they appoint for office? 4. Direct statements of racial animus or desire to discriminate would be an indicator of intent. But attribution of motive by statements of decision makers after the fact may involve attempts to cover up actual intent. 5. A history of state policies and formal and informal rules is another guide to intent. Do the rules differ across the state or over time? Is there assurance that the implementation of the law at the local level would be non-discriminatory? What discretion do local decision-makers have and who are they?
1 References to academic sources are found at the back of the declaration listed in alphabetical order by author and year. 8
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18. When examining the question of intent, one should determine whether there is another reasonable and complete explanation other than discrimination for the law. If there are other pos- sible rationales, one must weigh the importance of them. Does the non-discriminatory explana- tion outweigh the discriminatory effect? Were there non-discriminatory alternatives reasonably available? All explanations, not just racial ones, must be examined. What explanation has the best surviving evidence? Motives may be intertwined, but if race is part of the mix, that is highly relevant evidence of racially discriminatory intent (see Arlington Heights, 429 U.S. at 265-66, and Garza, 918 F. 2d at 779 (Kozinski, J., concurring and dissenting in part)).
SOURCES OF DATA
19. All of the data for this declaration are in the possession of South Carolina or readily
available in public sources such as the internet or Westlaw. Here is a listing of the sources on
which I rely. The first is the declaration of Dr. Stewart. I studied the text of the law itself and
other evidence provided by South Carolina in its submission to the Department of Justice, and
the other formal documents exchanged between the U.S. Attorney General, South Carolina, the
Defendant Interveners, and the court. I also studied the materials in the administrative preclear-
ance file relating to Act R54 that was produced in discovery by the Department of Justice. At my
direction, the Department of Justice assembled all of the media reports related to the legislative
consideration of the photo ID (see Appendix A for search criteria).
20. I studied various records on the General Assembly debate on the photo ID bill in the
2010-11 session and, to a lesser extent, previous sessions. This includes the formal records, in-
cluding recorded votes, and the race and party of the Representatives and Senators. Because
there is no formal written transcript of the House and Senate sessions and the conference com-
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mittee, I studied transcriptions provided by the Defendant Interveners made from video record- ings. I also had access to those recordings. Because these transcriptions are not a formal or offi- cial record, I will not quote from them. I will use the formal record (House and Senate Journals) to check for the accuracy of the sense of the debate gained from the transcripts, and will cite and quote from the Journals.
21. Additionally I examined a collection of emails provided by Representative Alan Clem- mons, the primary sponsor of the photo ID bill in the House, and documents that were in the pos- session of Senator George Campsen, the primary sponsor of the photo ID bill in the Senate. I will also rely on depositions taken for this case cited in text, several of which are rough rather than final transcripts because the final versions were not available as of the deadline for completion of this declaration. Finally, I have also relied on U.S. Census documents available on-line, and var- ious court decisions and Department of Justice documents and other sources cited below.
THE BENCHMARK AND THE PROPOSED PHOTO ID LAW
22. The benchmark voter ID law in South Carolina is one of the toughest in the country in terms of the limited kinds of identification documents that are allowed for voting (see the Na- tional Conference of State Legislatures comparison at http:www.ncsl.org/legislatures- elections/elections/voter-id.aspx). Only a few states, such as Mississippi, Rhode Island, and Ten- nessee seem to be as tough as South Carolina. Eighteen states do not require any ID for voting.
The requirements of the other 32 states vary widely. But almost all have a longer list of permis- sible documents than South Carolina. Florida, Indiana, and Georgia are tougher in the sense that their laws require a photo ID, but these states have a longer list of possible IDs that could be used for voting than does the benchmark South Carolina law. Under the benchmark law, the voter 10
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must present one of these at the polling place: voter registration certificate issued by the Election
Commission that does not currently have a photo, South Carolina photo driver’s license, or DMV
photo ID card. All of these include a signature of the voter that can be matched to the signature
the voter places in the poll book.
23. Under the photo ID law the voter must present one of these which is “valid and current”:
a revised voter registration certificate with a photo, South Carolina driver’s license, South Caro-
lina Department of Motor Vehicles photo ID card, U.S. passport, or military identification con-
taining a photograph issued by the federal government. According to the photo ID law, the ad-
dress on the photo identification is not determinative of an elector’s domicile for the purposes of
voting. The photo ID law also provides a provisional ballot for voters who cannot provide a valid
and current photo ID or when the poll managers dispute that the photo is of the person presenting
him or herself to vote. Provisional ballots can be obtained by those who have a religious objec-
tion to being photographed and for voters who have a “reasonable impediment that prevents the
elector from obtaining a photograph identification.” Uncertainties in the application of the law
are discussed below.
24. The essence of the change in the proposed law is that all voters must have one of the
specified photo IDs in order to vote with certain limited exceptions. The questions then become:
1) to what extent are Minority voters more likely than Whites to lack one of the photo IDs speci-
fied in the law?, 2) if Minorities are less likely to have the required photo ID, to what extent does
the requirement place a significant burden on their ability to vote?, 3) to what extent do other provisions in the law ameliorate or cancel out any burden the photo ID provision places dispro- portionately on Minority voters?, and 4) if the law places a disproportionate burden on Minority
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voters, was it enacted with that purpose or intent?
EFFECTS TEST SHOWS THAT PHOTO ID WOULD BEAR MORE HEAVILY ON MINORITY VOTERS
25. The first Arlington Heights factor is whether the impact of the official action bears more heavily on one race than another. Dr. Stewart’s analysis shows that the photo ID law bears more heavily on Minorities in South Carolina than Whites. Several summary statistics from Dr. Stew- art’s declaration are reproduced in Table 1 (tables are placed at the end of this declaration). His
data show that Minority registered voters are more likely to lack a current and valid driver’s li-
cense or DMV ID card than are White voters. Although Blacks are 28% of the registered voters,
they are 40% of the registered voters who did not “match” with current and valid (as defined by
the photo ID law) DMV records. The probability of a White voter not having a valid DMV
match is 5.5%, while the probability of a Black voter not having one is 9.5%. Other Minority
group members have similarly higher rates of non-match than do White voters. Dr. Stewart
shows that these differences between the races are statistically significant.
26. Dr. Stewart’s data and analysis demonstrate that the words “current and valid” make a
large difference in the application of the photo ID law. Indiana and Georgia photo ID laws do not
require that all drivers’ licenses be current if used for voting. In Indiana, an expired license is
acceptable for voting providing that the license expired after the previous general election, while
a suspended license is still acceptable. Georgia even allows non-Georgia licenses to be used for
voting if they are not expired. Dr. Stewart’s data reproduced in part in Table 1 show that regard-
less of the current and valid provision, Minority voters are less likely to have an ID from the
DMV records than are Whites. But the number of non-matches triples because of the current and
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valid rule. The number of non-matches between the voter rolls and all DMV ID cards is 62,890, but the number of non-matches with only unexpired and unsuspended DMV ID cards is 173,250.
Similarly, every racial or ethnic group has a much larger number of non-matches if only current and valid photo ID is matched. For example, 26,035 Black voters have no match if all DMV ID records are matched, but 69,283 Black voters have no match if only current and valid DMV rec- ords are matched. Furthermore, the disparity between Minorities and Whites is increased in the non-match data that matches only unexpired and unsuspended DMV ID cards. Dr. Stewart’s data show a non-match from both sets of data for those individuals who have surrendered their li- cense, since they would then not have that license to present at the polls under either set of rules.
27. The other forms of valid photo ID in the proposed law probably do not significantly ex- pand the number of registered voters with a current and valid photo ID. According to Defense
Manpower Data Center Department of Defense statistics from 2008, 25.4% of active duty mili- tary personnel were Minorities – 17.8% were Black (see www.deomi.org/home/saveCountFiles. cfm?fileid=332). This figure (17.8%) is less than the proportion of Black registered voters in
South Carolina (28%). All Minorities registered to vote in South Carolina constitute 30.5% of the voters. Assuming that the racial breakdown of military personnel in South Carolina is roughly similar to that of the military overall, the inclusion of military IDs to vote might increase the dis- parity between the proportion of Minorities and Whites who lack valid photo ID. I have no data on those who possess a passport. It is possible that additional data will be presented in this case that would help to determine the extent to which these other permissible IDs expand the number of registered voters who possess at least one of the kinds of ID required under the photo ID law, and whether the inclusion of these other forms of ID narrows or increases the disparity between
Minorities and Whites. In his deposition (8 June 2012, p. 122-124), Chris Whitmire, Director of
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Public Information and Training for the SEC, testified that he is uncertain what kinds of military
ID are covered under the new law, what these IDs look like, and how to train poll managers to
recognize them. Similar confusion over military IDs is expressed in depositions of legislative
proponents of the photo ID law (Senator Larry Martin13 June 2012, pp. 103-4, rough transcript;
Senator Harvey Peeler, Jr., Senate Majority Leader, 13 June 2012, pp. 47 and 98, rough tran-
script; Representative Robert W. Harrell, Speaker of the House, 13 June, pp. 169-70, rough tran-
script).
PHOTO ID REQUIREMENT CAN SUPPRESS VOTING
28. Erecting barriers to voting, even barriers that many would consider minor, can result in
vote suppression because the “payoff” for voting is so slight. This is expressed in classic political
science by the formula: PB + D > C (see Riker and Ordeshook 1970, from a basic idea of Downs
1957). PB means the probability of the candidate or party you prefer winning. So if the voter
perceives that the vote will be close (P) the value of PB is greater. But major elections are not
won by one vote – not even the Florida election for President in 2000. So PB always approaches
zero. D stands for “duty” and simply refers to the fact that people want to vote to “do their civic
duty” or to “do one for the team” (party or candidate of choice). In effect D substitutes for PB,
for even in a close election the value of the team winning (B) must be high in order for PB to be
meaningful. C is the cost of voting. The equation simply tells us that the effort and expenditure the voter has to make to cast a ballot (C) has to be less than the value of civic duty and party or candidate loyalty (D), or the individual will not cast a ballot.
29. Civic duty and party/candidate attachment are not strong for most people. Only in presi-
dential elections do as many as about two-thirds of eligible voters cast a ballot, non-presidential 14
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elections have typical turnout of 40%, while primaries and local elections sometimes have turn-
out in the single digits. Any introductory textbook in electoral behavior confirms these facts, and
South Carolina is not an exception. In the 2008 elections 1,920,969 people voted in South Caro-
lina (58.6% of the eligible)(http://elections.gmu.edu/preliminary_vote_2008.html). In the 2010
elections 1,365,480 people voted (40.3%)(http://elections.gmu.edu/Turnout_2010G.html). Also
see the classic books on Southern politics by Merle and Earl Black (1987 and 2003) for more on
voter turnout in the South generally and South Carolina particularly.
30. Dr. Stewart’s analysis shows that Minorities are more likely than Whites to lack a photo
ID from the DMV, and that those Minorities who lack such IDs are more likely to have lower socio-economic status than Whites who lack a DMV-issued ID. As Dr. Stewart points out, the cost of political participation, even voting, is greater for those with lower socio-economic status.
There are few findings in social science that have been more studied, confirmed, and less disput- ed than the difficulty that the poor and little educated have in participating politically. Minorities in South Carolina would fall into this category more often than Whites. For a discussion of the
effects of socioeconomic status on voting see Wolfinger and Rosenstone (1980), Verba and Nie
(1972), and Gurin, Hatchett and Jackson (1989). For a broader international perspective see
Verba, Nie, and Kim (1978). Table 2 presents U.S. Census data from the American Community
Survey comparing the socio-economic status of Whites and Blacks in South Carolina as of 2010.
I have restricted the table to Whites and Blacks because the South Carolina Election Commission definition of race and ethnicity is not the same as the U.S. Census definition. While four percent of households headed by a White lack a vehicle available to the household, 15.3% of households headed by a Black do not have a vehicle. From this we can conclude that Blacks will be more
15
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likely than Whites to have difficulty getting to the county election commission office (EC2) to obtain a photo ID: they are more likely to have no license or vehicle.
31. The other rows in Table 2 compare the usual measures of socio-economic status between
Whites and Blacks. Blacks are more than twice as likely as Whites to live in a household with income below the poverty level. The poverty rate for Blacks is 28.4%, while for Whites it is only
11.1%. The median household income of Whites ($51,141) is much greater than that of Blacks
($28,970). Educational attainment is perhaps the most important determinant of political partici- pation. About three-quarters of Black adults (75.7%) have completed high school (or the equiva- lent), but not quite 13% have a college degree. On the other hand, 86.2% of Whites have a high school diploma, and 27.9% have a college degree.
32. A recent example of the impact of seemingly minor voting changes on political participa- tion is Brady and McNulty (2011). Their research shows that just changing the voting place de- presses voter turnout. Moreover, the decline is not consistent for all groups with young people and the poor (i.e., in large part racial Minorities) most affected. Brady and McNulty did not find that travel distance to the polls was a big problem, but that “search costs” were the main culprit.
By this they mean that voters were uncertain of where to go to vote because of the change. Even the seemingly minor inconvenience of finding out where to go and then finding the location will be enough additional cost to depress turnout especially for poor and young voters. For a more general analysis of the extent to which increasing the costs slightly will depress turnout see
McNulty, Dowling, and Ariotti (2009).
2 I will use the acronym “EC” to refer to the county election commissions, board of registration and election and the board of canvassers, as these terms seem to vary. I will refer to the South Carolina State Election Commission as “SEC.” 16
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33. It follows that voter turnout is sensitive to raising the cost of voting even slightly. Asking
registered voters to make a trip to the county seat to find the DMV or county election and regis- tration office is a substantial cost to individuals who do not have ready transportation. These ad- ditional costs will not be imposed on those who drive, cash checks, ride on airplanes, travel in- ternationally, and military families. It will, however, be imposed on those who live aside from the world of legal requirements for a photo ID. And these individuals are more likely to be Mi- nority.
34. It is difficult for those who use photo ID every day for a multitude of tasks to realize that there is another world, where people live without having to confirm identity with a photo ID. But
such people do exist, and evidently may be 173,000 strong in South Carolina. Such individuals
include those who are poor, little educated, often elderly, and more often Minority. What would
seem to be a minor cost to those who live in a world of constant security scans, can be a major
burden to those who live in this other world.
35. Some registered voters, who do not have one of the kinds of ID specified in the photo ID
law, are not part of this other world. For example, “snowbirds” – wealthy, typically White retir-
ees who have maintained a driver’s license or other ID from another state where they might
spend part of the year. For these individuals the law may be a mere minor inconvenience. Stew- art’s analysis shows that Whites who lack a DMV ID have higher socio-economic status than
Minorities who lack such an ID. His analysis also shows that concentrations of Whites without a
DMV ID are mostly in higher income areas such as resorts along the coast and around lakes in the upstate region. Minority voters who lack a DMV ID are more concentrated in the intercoastal
plain, a band through the middle of the state were poverty is concentrated, and in places such as
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Sumter and Orangeburg, where historically Black colleges and universities are located.
36. South Carolina’s claim that the burden imposed on those who do not have a valid photo
ID is a “temporary inconvenience no greater than the inconvenience inherent in voting itself”
(Complaint, p. 2) is not true for those who really are part of this other world. Many in this latter
group are Minorities. In the first place, it is an additional cost not borne by others. In the second
place, as demonstrated with the data analysis above, this is a more substantial burden for those
from this other world than for those who live in the world in which a photo ID is part of every- day life. The mere fact that those in this other world don’t need a photo ID for other activities
tells us about their lifestyle and the extent of the cost of voting this law places on them. And in the third place, even a seemingly minor inconvenience can suppress voter turnout.
PROCESS DID NOT SUFFICIENTLY TAKE CONCERNS OF MINORITIES INTO ACCOUNT
37. For intent analysis, it is important to note that the Republican majority in the General As-
sembly knew the approximate size of this other world and that it was more likely to be inhabited by Minorities. Marci Andino, Executive Director of the State Election Commission (SEC), pre-
pared a report to determine the extent that registered voters do not match with DMV records and
therefore likely would not have a current and valid photo ID (“Andino report”). She uses the
word “disenfranchised” to describe those without a photo ID match (see Andino deposition 7
June 2012, p. 69). Mr. Chris Whitmire in his deposition (8 June 2012 p. 29) indicates that the report was prepared at the request of Ken Harris, senior minority researcher for the Senate. The report was sent by email directly to members of the House Judiciary Committee: Representatives
Clemmons, Sellers, Horne, Nanney, and Allen on 26 January 2010. The email included the re-
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port as an attachment: “VoterRegistrationVersesDriversLicense.pdf.” Heather Anderson, a Sen- ate Judiciary Committee staff member, sent the same data to all members of the Senate on 22
January 2010 and 25 January 2010. The data in the third email was different from the other two only in that 17 year olds were deleted from the analysis by age. Some legislators who were pro- ponents of the photo ID law remember seeing one of the reports or hearing of them in the debates or in the media (see Senator Peeler deposition, p. 93; Harrell deposition, pp. 98-9; Representative
Philip Lowe, co-sponsor of the law in the Judiciary Committee, 15 June 2012, p. 69 rough tran- script; Lt. Governor Glenn McConnell, deposition 14 June 2012, p. 91 rough transcript).
38. The statistics in this report are similar to those derived from Dr. Stewart’s more complete and current analysis. The Andino report shows the number of “non-matches” by county, age, and race. The total number of non-matches is 178,175 – a figure that is quoted frequently in the de- bates in both the House and the Senate and in emails during the debate in 2011. The Andino re- port shows 114,419 registered Whites have no matching DMV ID (6.0% of the registered
Whites), while 63,756 Blacks (8.3%) have no match. The comparable figures from Dr. Stewart’s declaration (see Table 1) are: total non-matches of 173,250; 98,113 Whites (5.5%); and 69,283
Blacks (9.5%).
39. No one in the General Assembly debates argued that the numbers given in the Andino report were in error, although some proponents claim that such racial disparity in the impact of the law would not matter (see Martin deposition, pp. 67-8, 76-8; Lowe deposition, pp. 66, 69,
105; McConnell deposition, pp. 52, 91). Moreover, the members of the General Assembly are experienced politicians. They know the state, and they could not reasonably fail to know that this other world exists, and that Minorities are more likely to inhabit it. They know basic socio-
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political facts of life in South Carolina. If they had any doubt, the Black members of both the
House and Senate made them fully aware of this other world and the facts generated by the
Andino report were statistical proof from the South Carolina government.
40. Both the House and the Senate passed a version of photo ID in 2010. The Senate com-
bined a provision to establish early voting as part of the photo ID bill, but the House was op-
posed to early voting. Early voting is a provision that allows any registered voter to cast their ballot in person before the day of the election in one or more sites in each county. Democrats in both houses favored an early voting provision as did most Republicans in the Senate. The two houses were not able to work out the differences before the mandated end of the session, and the
bills died. It is possible to blame a filibuster in the Senate led by Democrats (especially Senator
C. Bradley Hutto) who “ran out the clock.” But it is more complicated than that. Republicans in
the Senate had enough votes to overcome the filibuster. Four Republican senators joined all the
Democrats in preventing the bill from coming to a vote (Alan Clemmons deposition, 11 June
2012, p. 167). The bill could have been taken up again when the General Assembly returned to
consider the Governor’s vetoes, but this would have required the House to pass the Senate ver-
sion with early voting included, and they refused (see the series of emails to and from Repre-
sentative Clemmons 17-18 June 2010, SC_00000633-636). Differences of opinion among the
Republicans – especially differences between Senate and House Republicans on early voting –
were responsible for the loss. There were simply not enough Democratic members to make a dif-
ference unless the Republicans were divided. In 2010 they were not divided on the question of
requiring a photo ID to vote, but were divided on other questions (mainly early voting). The
Democrats, including all the Blacks except the one Black Republican then in the General As-
sembly, were opposed to the photo ID bill in the 2009-10 legislative session.
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41. The Republicans returned in 2011, with strengthened delegations in both houses as a re-
sult of the 2010 elections, determined to pass a photo ID bill. Representative Clemmons states
many times in his emails that the bill must be “clean” in order to pass. That is, he had to avoid
extraneous provisions (especially early voting) and just address photo ID (see for example, email
from Alan Clemmons to Ralph Panzrino and Lee Frye, 7 April 2011, SC_00000914-915). The
differences between the houses and among the Republican majority were the same as in 2010,
but the Republican leadership in the House (led by Representative Clemmons) pursued a strategy
to avoid the problems of the previous session.
42. A time line for the adoption of the photo ID law in 2011-2012 is in Appendix B. Two as-
pects of traditions and rules affected the process of adoption of the photo ID law. The first tradi-
tion is that when both houses are considering the same subject, the body that passes the bill first
gets a tactical advantage (see Patrick Dennis, Chief Counsel of the House Judiciary Committee,
deposition 4 June 2012, p. 47), because that house will have the last chance to amend the bill be-
fore it goes to a conference committee. The House passed its version of the photo ID bill (H
3003) on 26 January 2011. The bill then “crossed over” to the Senate and became, by tradition,
the basis for their debate and amendments. The Senate passed their version of H 3003, with an
expanded list of acceptable photo ID and the addition of early voting, on 24 February. The bill
then crossed back over to the House, giving them a chance to amend the bill knowing what the
Senate preferred. The House essentially re-passed their original version of H 3003 sending it back to the Senate, stripped of virtually everything the Senate had added. But the rules restrict the Senate at that point to either accepting the House version or rejecting it (to “non-concur”).
The Senate could not amend the bill at this point, and chose to non-concur on 13 April sending the bill to a conference committee.
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43. The second rule that affected the outcome is that both houses did not give the conference
committee “free conference powers” (see Dennis deposition, p. 53). Therefore, the conference
was restricted to provisions that were in one version of the bill or another. They could not craft
compromises on specific provisions, such as early voting or the IDs that would be acceptable.
The House passed the conference report, essentially the House bill with minor fixes (McConnell deposition, pp. 141, 202; Dennis deposition, p. 52), on 26 April, and the Senate followed on 11
May.
44. The debate rhetoric in both houses, in the media, in communications to the Department of
Justice, and in emails sent to Representative Clemmons is consistent. Both sides have talking
points, and there is little deviation from them. The remarks of Representative Bakari Sellers (a
Black Democrat) in the House Journal (26 January 2011, pp. 21-3) are an example of the major arguments against the photo ID bill. Essentially the opponents argue that the law is: 1) unneces- sary because there is no evidence of impersonation vote fraud; 2) expensive in a time of budget constraints; and 3) intended to suppress the Minority vote. Representative Sellers cites the num- ber of registered voters that do not match with DMV identification found in the Andino Report as an illustration of the report as part of the debate.
45. The speeches in favor of the bill are captured in the remarks of Senator George Campsen
(a White Republican) in the Journal for 24 February 2012 (pp. 10-12). The arguments are pre-
cisely the reverse of those offered by the opponents. There are several things to notice in the ar-
guments for the bill. The argument is that having a photo ID is so accepted in the general popula- tion that it would not be a substantial burden on anyone, despite the known fact (from the Andino
report) that perhaps 178,000 South Carolina voters did not have a photo ID. Nor is there any at-
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tempt to deny that the burden – whatever it might be – weighs more heavily on Minority voters than on Whites as the Andino report demonstrated. Other provisions in the bill supporters claim to mitigate whatever burden there may be. The emphasis is on the importance of preventing fraud. The cases cited, however, tend to be largely irrelevant to the incidence and prevention of voter impersonation fraud in South Carolina. The cited events come mostly from other states, and the few South Carolina cases didn’t involve impersonation fraud. Indeed, the proponents of the photo ID bill could not deny the assertion of the photo ID bill’s opponents that there were no established cases of impersonation vote fraud in the state. The General Assembly legislated on a nonexistent problem, while ignoring the consequences of requiring a photo ID on the political participation of Minority voters.
46. Last of all, the pro photo ID arguments emphasize the similarity of the photo ID law to the laws in Indiana and Georgia. But the list of IDs that can be used in the South Carolina photo
ID law is more restrictive than in these other states. The Indiana and Georgia law are also differ- ent from the proposed law in whether expired and suspended driver’s licenses can be used in some cases.
47. The debates in the two houses in 2011 were very different, as reflected in the voting pat- terns presented in Tables 3 and 4, and in the differences in the House and Senate versions of the bill (see Appendix C for Lt. Governor Glenn McConnell’s discussion of the differences when he was still President Pro-Tem of the Senate). In the House, the Republican majority was disci- plined and the Democratic Minority (including all the Black Representatives) ignored. There were no efforts to build a compromise even on minor matters and provisions that did not involve photo ID. As Table 3 shows, except for the vote to table Amendment 2, the Democrats – espe-
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cially the Black Democrats – almost never joined the Republican majority. Twelve Black Demo- crats voted with the Republicans to table Amendment 2, which would have expanded the kinds
of photo ID that would be acceptable for voting to include employee identification for state and
local governments, but not student ID. The Black representatives may have been casting a strate-
gic vote, reasoning that this change would make the bill more acceptable to the Senate and per-
haps to the Justice Department or Federal Courts for preclearance. In any case, their twelve votes were not needed to table the amendment, because the votes of the Republicans alone were suffi-
cient.
48. The greater degree of compromise in the Senate is reflected in the extent to which Demo-
crats, including all the Blacks, joined the Republicans on several amendments, mostly on issues
other than photo ID (see Table 4). The Senate agreed (amendment P4) to exempt the elderly
from the photo ID requirement. The version of the photo ID bill, as it came from the Senate Judi-
ciary Committee, contained provisions for Federal, State, and Local government employee ID to
be used for voting. This provision might have narrowed the gap between White and Minority
voters who do not have a photo ID, because the government workforce includes a higher propor-
tion of Minorities than voter registration, which is only 28% Black. Demographics of federal and
state employees for the Public Administration sector in South Carolina from the U.S. Census
American Community Survey for 2010 shows 97,219, of whom 64,486 (66.3%) were White
alone and 31,026 (31.9%) were any part Black. This includes most government services, other
than schools and health. The South Carolina Workforce Plan for 2009 shows that 38.7% of SC
state employees were Black, and 59.4% were White, as of 30 September 2009
(www.ohr.sc.gov/OHR/wfplan/209-SC-OHRWork forePlan.pdf).
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49. The Senate Republican majority, however, was unwilling to match the requirements in
the Indiana and Georgia laws with regard to student ID as amendment P1 was defeated 27 to 13
with only one White Democrat opposing the amendment. There are 62 colleges and universities
in Georgia that have ID cards that can be used for voting in that state (see http://www.sos.ga.gov/
ElectionConnection/acrobat/Photo%20ID%20%20Acceptable%20Student%20ID%20Cards
%20v%202%202010.pdf). The Indiana law is a bit more complex, as the public college or uni-
versity IDs must conform to three criteria: have a photo; student name that matches the voter
rolls; and an expiration date. It is not clear which state school IDs meet those criteria. There are
eight historically Black colleges and universities (HBCU) in Georgia, three of them are on the
list of 62 colleges and universities that have IDs that can be used to vote. Indiana has no HBCUs,
but South Carolina has eight, two that are public: Denmark Technical Institute and South Caroli-
na State University (http://www.collegescholarships.com/historically_black_colleges
_universities.htm).
50. On 19 October 2011, the Associated Press published an article by Jim Davenport that in-
dicated the photo ID law “appears to be hitting Minority precincts the hardest.” The thrust of the
article is clearly on the disparate impact the law would have on Minorities, not just college stu-
dents. The article points out the counties where there are concentrations of voters who do not
have a matching record in the DMV office. It also points out the precincts that include Benedict
College and South Carolina State University. Both of these precincts have large numbers of reg-
istered voters – presumably students – with no DMV match. In both cases the un-matched voters
are almost all Minorities.
51. Wesley Donehue is the CEO of Donehue Direct and bills himself as a “political strate-
gist” for the South Carolina Senate Republican Caucus. During the debates on the photo ID law
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Representative Clemmons communicated frequently with Mr. Donehue by email. These emails
also indicate he was involved in arranging and participating in meetings on the bill. Donehue al-
so claims to have been involved in planning the strategy to pass the photo ID law (see Ryan J.
Reilly, “S.C. GOP Operative: AP Story Showing Impact of Voter ID on Blacks ‘Proves EX-
ACTLY Why Law is Needed,’” http://tpmmuckraker.talkingpointsmemo.com/2011/10/sc_gop_operative
_ap_story_showing_impact_of_voter_id_on_blacks_proves_exactly_why_law_is_needed.php,
last retrieved 17 June 2012). In a posting on Twitter, Mr. Donehue said that the Davenport AP
article “proves EXACTLY why we need Voter ID in SC,” and that the story “has proven that a
bunch of non-South Carolinians are voting in SC elections. Did they vote in other states too??
FRAUD!” (emphasis in original as quoted by TPM).
52. Students can claim their college or university address as their domicile. Mr. Donehue’s
Twitter postings provided no evidence that these students also voted absentee in the state of their
parents or their former home. The SEC has looked into these kinds of allegations and found no
evidence of fraud (see Andino deposition, p. 194-5). Nor would the photo ID law prevent the
kind of fraud he claims is rampant among these students, since he is not accusing them of engag-
ing in impersonation fraud. Under the benchmark law, students cannot use ID from other states or their student ID to vote in South Carolina. They must use one of the approved forms of ID in
the benchmark law, probably voter registration certificates issued by the SEC, since the matching
of the DMV and SEC records indicates that many of the voters in precincts heavily impacted by
students did not have a South Carolina DMV issued ID.
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53. The most obvious example of compromise in the Senate is that the Democrats were pre-
pared to filibuster the bill with about 200 possible amendments. They agreed to withdraw all of
those amendments in exchange for a vote of non-concurrence to the House passed bill, which
brought about the conference committee. They evidently believed they would get something they
wanted out of the conference report. Their willingness to “go along to get along” was betrayed
when provisions they favored in the bill, such as early voting, government employee ID for vot- ing, and the elderly exemption were excluded from the conference report and the Republicans in
the Senate reluctantly accepted that report. Lt. Governor McConnell says that the House confer-
ence members agreed to pass a separate bill on early voting (deposition, pp. 135-6), but Repre-
sentative Clemmons denies this and the House killed a separate early voting bill in a Judiciary
sub-committee (deposition, pp. 197-99).
54. According to Senator McConnell’s remarks in the Senate Journal (Appendix C), the Sen-
ate had capitulated to the intransigence of House Republicans. When Senator McConnell pre-
sented the conference report he had to admit that it still contained many of the flaws in the House
bill that he, nine other White Republicans, and one White Democrat had cited as a reason for
non-concurrence to the House bill earlier (see Senate Journal 13 April 2011, p. 28,
SC_00087841). All the Democrats who were present also voted for non-concurrence. He sum-
marizes where the Senate and House stood on this bill and where the conference report came out.
The Senate provision for government employee ID and the elderly exemption were not in the
conference report. He indicated that the report had provisions that might play into the hands of
those who opposed the bill (meaning Democrats) and hoped it would not be precleared, because
it is too tough in some regards such as the limited types of ID that would be acceptable. He also
complained that the House delayed response to the conference putting everyone on a tight sched-
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ule. During this delay, the House and Senate Republicans were under pressure from Republican
Party activists to produce a “clean” bill. Specifically, to accede to the House bill with no early
voting provisions. This organized pressure is also apparent in many emails involving Representa-
tive Clemmons from Republican officials and activists. Senator McConnell calls it a “propagan-
da” campaign.
55. The House accepted a Senate provision for the DMV to get information on births from
the Department of Health and Environmental Control without cost, when the individual has no
copy of a birth certificate. This is not much of a concession since those with any kind of a pa-
perwork problem would more easily go to the county EC, not the DMV to get their photo ID.
Conferees proposed no change in absentee voting. It is noteworthy that absentee voting is the
area of the voting process that is the most subject to vote fraud (see Alvarez, Hall, and Hyde
2008; Imai and King 2004; Fortier and Ornstein 2003; Fay 2005; and Karlawish, et al. 2008).
Ms. Andino (pp. 51-2, 175) and Mr. Whitmire (p. 61, 66-8) discuss absentee vote fraud in South
Carolina involving corrupt election officials in their depositions. The Conference report deals
with the non-existent problem of impersonation fraud and ignores absentee voter fraud and other
serious problems in the election process (see for example D. A. Buell, E. Hare, F. Heinde, C.
Moore, and B. Zia, “Auditing a DRE-Based Election in South Carolina” Intervener’s exhibit 5 in
the deposition of Representative James Harrison, Chair of the Judiciary Committee, 12 June
2012, rough transcript). Representative Lowe, who discussed election fraud more comprehen-
sively in his deposition, testified that “I think probably more of the fraud occurs in the absentee”
(p. 65).
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56. The depositions of the major proponents of the photo ID law show that during the con- sideration of the law they had little interest or concern about investigating either the extent to which the photo ID law might burden Minorities more than Whites, the extent of actual imper- sonation fraud, or the lack of public confidence in the election process. See for examples, Martin deposition, pp. 67-8, 76-8, 101-2; Peeler deposition, pp. 34, 97; Harrison deposition, pp. 51, 126-
7; Harrell deposition, pp. 46-7; Lowe deposition, pp. 76; McConnell deposition, pp. 91.
57. Two of the Arlington Heights factors to consider are: 1) the extent to which the jurisdic- tion afforded members of racial and language Minority groups an opportunity to participate in the decision to make the change; and 2) the extent to which the jurisdiction took the concerns of members of racial and language Minority groups into account in making the change. This legis- lative process was controlled completely by the Republican majorities in both houses. The Dem- ocrats participated in the debate in both houses, but were actually consulted and taken seriously only in the Senate, and only to a limited degree with regard to the photo ID requirements. The provisions that Democratic Senators (about half of whom are Black) preferred were not in the conference bill. The Republican majority in the Senate wanted a photo ID bill, and feared that insisting on compromise on issues other than photo ID would recreate the same problems that resulted in defeat a year earlier. Therefore, they abandoned early voting, even though it was unanimously passed in the Senate (amendment P482, see Table 4). No Democrats, White or
Black in either house, voted to accept the conference report and institute a photo ID requirement for voting in South Carolina.
58. Minorities in South Carolina vote overwhelmingly for Democratic candidates, so even
White Democrats can be considered as representatives of Minority voters, because they are can-
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didates of choice. For evidence of this see Colleton County Council v. McConnell, 201 F. Supp.
2d 618 (D.S.C. 2002), the statewide redistricting case in South Carolina in which I testified. The
court wrote at 641:
In this case, the parties have presented substantial evidence that this disturbing fact [racial polarization] has seen little change in the last decade. Voting in South Carolina continues to be racially polarized to a very high degree, in all regions of the state and in both prima- ry elections and general elections. Statewide, black citizens generally are a highly politi- cally cohesive group and whites engage in significant white-bloc voting. Indeed, this fact is not seriously in dispute. . . Racial polarization is highest in black-white elections— those involving a black candidate running against a white candidate. And, there is a well- documented hierarchy in the preference of black voters. With few exceptions, black vot- ers demonstrate an overwhelming preference for black Democrats as their representa- tives, followed by white Democrats, particularly in a general election, but black voters virtually never vote for a Republican candidate.”
59. The same conclusion was reached in United States v. Charleston County Council, 316 F.
Supp.2d 268 (D.S.C. 2003), a case in which the court relied primarily on my analysis of polar-
ized voting. The court wrote:
Dr. Theodore Arrington, expert for the United States, found that out of 31 contested, County-Council elections studied from 1984 to 2000, voting was racially polarized 29 times (94%). The findings of Defendants' own expert, Dr. Ronald Weber, also confirm that voting in Charleston County Council elections is severely and characteristically po- larized along racial lines. In 25 of the 33 contested general elections, from 1988 to 2000, African-American and white voters were polarized (75.8%). This pattern of racially po- larized voting is perhaps most dramatically demonstrated by Dr. Weber's findings that, in general election contests for Charleston County Council with at least one African- American candidate, there was polarization between African-American and white voters 100% of the time. Even in general election contests for Charleston County Council in- volving no African-American candidates, there was polarization between African- American and white voters 87.5% of the time. A number of discrepancies exist in Dr. Weber's various reports concerning polarization in Charleston County Council elections. Importantly, however, Dr. Weber has universally found severe and legally significant voting polarization, notwithstanding any conclusions he may have concerning the cause of such polarization. Ultimately, the Court is particularly compelled by the careful report prepared by Dr. Arrington.
60. As these courts recognized, in South Carolina political party means race, and race means
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political party. They cannot be meaningfully separated because of the almost unanimous adher-
ence of Minority voters to the Democratic Party and the usual, but not overwhelming, preference
of White voters for the Republican Party. Any action that aids either party cannot be said to be
“just partisanship” or “just politics,” because race and partisanship are inevitably intertwined, as
these courts recognized. In the Charleston case, Dr. Weber opined that the polarized voting was
“just partisanship,” but the court rejected his analysis.
REMEDIATION OF THE BARRIERS INSUFFICIENT
61. The photo ID law contains various provisions that South Carolina claims will make it
easier for voters to obtain a photo ID, or vote without one. These provisions are not as helpful as
might appear on the surface. The first provision is a free ID card for voting age applicants from
the DMV offices. According to the web sites, these 67 offices are open Monday, Tuesday,
Thursday, and Friday from 8:30-5:00, and Wednesday from 9:30-5:00. Six offices (Aiken, one in
Charleston, Florence, Greenville, Lexington, and Rock Hill) are also open on Saturday from
8:30-1:00 (also see deposition of Col. Kevin Shwedo, Executive Director of the DMV in his deposition, 7 June 2012, pp. 20-4). The state has made no provision for extra offices or extra hours to accommodate tens of thousands of registered voters who may need a photo ID. These offices are located in or near the county seat or in suburban areas of the larger cities. As the data
in Table 2 shows, Blacks are more likely than Whites to lack a vehicle in the household for travel
to the DMV office. The advantage of receiving a photo ID from the DMV is that it is an all-
purpose ID that could be used for things like cashing a check or riding on an airplane. The disad-
vantage is that it expires after five years and is no longer current and valid.
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62. The biggest disadvantage of the DMV provision for those registered voters without a
photo ID is that DMV bureaucracy is quite complex and not user-friendly. To illustrate this
point, their rules governing required documentation to receive an ID are in Appendix D. DMV
offices must be governed by bureaucratic regulations because DMV IDs are all purpose docu-
ments that can be used for things like boarding an airplane. The problems with the DMV offices
also involve lack of resources and necessary complexity of rules that the personnel in these of-
fices cannot control. The “DMV Policy Task Force Findings and Recommendations” presented
to Governor-Elect Mark Sanford on 9 January 2003 stated: “The current state of South Caroli-
na’s DMV is alarming. South Carolinians are all too familiar with its inefficiencies - long lines at
branch offices, painfully slow mail-in services, inefficient call centers (with two out of five calls
going unanswered), a multimillion dollar computer system that is not yet fully-functional, and
facilities that are too small, uncomfortable, and are not customer-friendly. South Carolinians
know there are serious problems at the DMV” (p. 3). Col. Shwedo outlined some of the pressures
on the DMV in his deposition. The issuing of free ID under the bill will cost the agency money.
This will impact services, because the DMV is self-supporting and the General Assembly has
been unwilling to increase fees on licenses, (pp. 55-7, 109). The DMV is currently operating at
80% of authorized staff (p. 108).
63. Although various reforms were instituted under Governor Sanford, the old patterns re-
main or resurfaced (see http://www.fitsnews.com /2012/02/09/scdmv-is-incompetence-back).
Gregg Easterbrook (a fellow at the Brookings Institute) points out that bureaucratic problems at
DMV offices are the norm across the country, not unique to South Carolina: “Lines are long, clerks are rude. It can take hours to conduct the simplest transaction. The mindset of the typical
DMV office is that the taxpayer’s time is utterly worthless — expect to spend the whole day in
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the waiting room. Then finally get to the window, and the clerk will search your paperwork for
some trivial imperfection and send you away, knowing full well this will force you to waste an-
other day in the waiting room to get back to the window” (http://blogs.reuters.com/gregg easter-
brook/2011/01/06/american-exceptionalism-and-the-dmv-factor/).
64. There is another aspect of the DMV provisions that is worth notice. Any DMV photo ID
must be current and valid according to the photo ID law. This is interpreted to mean that an ex-
pired or suspended South Carolina driver’s license cannot be used for voting. This is different from the laws in Georgia and Indiana (see the National Conference of State Legislatures compar-
ison at http:www.ncsl.org/ legislatures-elections/elections/voter-id.aspx). The only purpose of
the photo ID law, according to its sponsors and its text, is to confirm the voter’s identity. There is
no reason that an expired license, or a revoked one for that matter, cannot adequately document
the identity of the voter. The current and valid provision in the South Carolina law, as interpret-
ed, simply provides further restrictions on voters without any decrease in fraud. Mr. Whitmire in
his deposition (pp. 124-6) admits that it is not clear what valid means and that poll managers
would probably have no way to determine whether the ID was valid, other than expiration date.
The exact meaning of these terms is also unclear to the major proponents of the photo ID law
(see Peeler deposition, pp. 78-80; and McConnell deposition, p. 125).
65. According to the procedures to implement the photo ID law prepared solely by Ms.
Andino and her staff and submitted to the court for preclearance (see ECF No. 65 and her deposi-
tion pp. 99-101), the county ECs will only require a registered voter to give name, address, date
of birth, and last four digits of the Social Security number to receive a photo ID that is good only
for voting, but has no expiration date. There is some question, however, whether a permanent
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voter ID is really permanent. Mr. Whitmire discusses this problem in his deposition (pp. 148-9).
After some years the voter may no longer resemble the old picture. Mr. Whitmire recommends
that voters get a new card every few years to prevent questions about whether the voter is really
the person in the photo. Given the lack of clear rules from the SEC and their ability to enforce
any rules, additional trips downtown to get a photo might be necessary in order to avoid prob-
lems at the polls on the day of the election.
66. There is one EC office in each county. The business hours on web sites are regular court-
house hours, 8:30-5:00 Monday through Friday. The locations are at the county seat (see Andino
deposition, p. 106). Most of these offices are in the county courthouse or county office building,
and may have limited parking. Unlike DMV offices, EC offices may be less accustomed to
heavy foot traffic, since much of the business of registration is now handled by mail and on-line.
In her deposition, Ms. Andino knows of no plans by the county ECs to expand their hours or
days of operation to accommodate tens of thousands of registered voters who may need a photo
ID (deposition, pp. 166-9), although Mr. Whitmire indicates that Saturday hours for county EC offices are sometimes established near the election (deposition, p. 134).
67. For those who do not need a photo ID for other purposes, the photo ID law takes us back fifty years to when voter registration in many states – especially in the South – was restricted to the county courthouse during banker’s hours (see Keyssar 2001). While one can “register” in all the new ways including by mail, at public events, or even in the comfort of one’s home; one can only get the required photo ID by making a trip downtown during the work day. The SEC has one bus that can go around to events to register and photograph voters for the new photo ID law.
Mr. Whitmire testifies in his deposition (pp. 82-87) how this vehicle will be used. He cannot
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even be sure that the bus could get around to every county by November if the photo ID law is
precleared in early September. Ms. Andino testifies that the bus would not be able to reach all counties if the law is precleared in September (p. 111). In any case, a single mobile unit for the entire state is hardly a significant outreach effort for either the short or the long term. Essentially,
the provisions of the National Voter Registration Act (NVRA), the Help America Vote Act
(HAVA), the Voting Rights Act, and fifty years of reform that made registration and voting easi-
ly available are abrogated for those who do not already have a valid photo ID.
68. The requirement to go downtown to get a photo ID is the practical equivalent of require-
ments for reregistration that have been objected to by the U.S. Attorney General and were of
concern to the Congress. A report of the United States Commission on Civil Rights to the Con-
gress in January 1975 titled “The Voting Rights Act: Ten Years After” stated that a requirement
for reregistration “. . . places a substantial burden on the Minority voter, who has often succeed
in registering only after overcoming many obstacles. The result of a reregistration can be a de-
cline in the number of Minorities who are registered” (p. 93). The report goes on to cite a specif-
ic example in Arizona in 1970, and is critical of the Department of Justice for sometimes not ob-
jecting to reregistration in Mississippi. A basic source on this subject is “The Shameful Blight:
The Survival of Racial Discrimination in Voting in the South,” by the Washington Research Pro-
ject, 1972, which provides a list of Mississippi counties’ use of the reregistration strategy and the
Justice Department’s response.
69. The Department has objected to reregistration processes in states covered by § 5 in some
instances. In an objection letter to Perry County Alabama dated 25 September 1981 the Depart-
ment wrote: “Our analysis shows that the likely effect of this reidentification and purge will be to
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effectively dilute the voting strength of the black electorate in Perry County. . . the limited hours and locations at which reidentification can be accomplished, and the generally restrictive manner
in which one would have to go about perfecting his or her reidentification, . . . shows that the
burden cast by this process upon blacks would be much greater than on whites and would make it much more difficult for blacks to preserve their voting status.” In an objection letter to Jasper
County Mississippi dated 8 June 1971, the Attorney General objected to a reregistration and nul- lified the results. The objection letter indicates that only 75% of the registered voters were able to reregister, and that the proportion of Blacks who reregistered was lower than 75%.
70. There is also an additional significant short-term problem with preclearing the photo ID law and applying it to the 2012 elections. The county ECs are not geared up to process tens of thousands of photo IDs before the November elections. Election offices are facing the highest volume of business in the four-year election cycle – the presidential general election (see turnout figures cited above). Sometimes precinct lines must be changed to accommodate redistricting with all the work that this entails, because this is not only a “presidential” but also the first gen- eral election after decennial redistricting – a double whammy for election offices. Ms. Andino says that at this critical time just before any election – much less a presidential – the county ECs could use twice as many staff and are chronically underfunded and understaffed (see deposition pp. 22-3). In 2008 the lines for voting absentee in South Carolina were as long as six hours
(Andino deposition, pp. 189). In their extensive analysis of the experience of voters in the 2008 elections, Alvarez, et al. (2012) show that the average wait time at the polls was longer in South
Carolina than in any other state (pp. 73-4), and that 20% of the registered voters who failed to vote cited long lines as the reason (p. 34).
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71. On top of this, the photo ID law will place a new task on the county EC offices to process photo ID for both the flood of new voters, and the backlog of tens of thousands of old voters who now need an ID. They are also responsible for notification to those voters who do not appear to have a photo ID, and other miscellaneous public notice provisions. The photo and processing equipment and supplies have not been purchased (Ms. Andino’s deposition, pp. 82-3, and Mr.
Whitmire’s deposition, pp. 72-74). Indeed, it is not clear that South Carolina has appropriated the funds that will be needed, although Representative Clemmons claims this has been done (see deposition, pp. 76-7). The county EC staffs have not been trained in the use of the equipment and the procedures will be new and untested in the field. No provision has been made to increase the personnel to handle the additional load. If this is an unfunded mandate on county government, there is no evidence that they have prepared the funding and staffing either. See the Andino dep- osition, (pp. 82-4, 98-104, 107-11, 163-171) and Whitmire deposition (pp. 70-9, 87-123, 138-
140) for discussion of partial preparation at this point.
72. The court has indicated that its decision on preclearance of the photo ID law will come in early September 2012 (Scheduling and Procedure Order, 26 April 2012, p. 8). Ms. Andino, testi- fied by Affidavit dated 10 April 2012 ¶ 28: “. . . the [photo ID] Act must go into effect by at least
August 1, 2012. This is the latest date at which the Act can become effective and the SEC can still completely fulfill its duties under Section 7 of the Act.” According to her deposition on 6
June, however, she says that the court’s date of early September is not too late for implementa- tion for the November election. Yet she testifies that nothing has changed since her affidavit in
April in terms of the ability of the SEC to carry out its responsibilities under the act and the time she previously estimated it would take to perform these tasks (deposition, p. 166, 192-4). Mr.
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Whitmire is only willing to say he “believes it is possible” to be ready for the November election
if the photo ID bill is precleared in early September (deposition, p. 140).
73. Notice two contradictory scenarios: 1) that many individuals without a photo ID will be
unable or unwilling to bear the cost to obtain one and will be denied the right to vote, or 2) that
many individuals will seek to obtain an ID from the ECs and the offices will be unable to handle
the load. Given Dr. Stewart’s estimates of the numbers of individuals who are properly registered
but do not have a valid ID as required by the law (173,000), it is possible that both scenarios would occur if the law is precleared.
74. The photo ID law provides that a person who has a religious objection to being photo- graphed or suffers a “reasonable impediment that prevents the elector from obtaining photograph identification” can complete a paper ballot that is placed in an envelope with the attached affida- vit stating the reasonable impediment or religious objection. The county EC would determine whether the ballot should be counted on the basis of information on the unopened envelope (pre- cinct number, voter’s name, etc.) and the affidavit. The photo ID law provides that the provision- al ballot of someone whose only problem is that they did not show a valid photo ID and had a religious objection or reasonable impediment “shall be counted” unless the affidavit is “false.”
The South Carolina Attorney General has issued an opinion (16 August 2011 letter to Marci
Andino) in an attempt to clarify this wording with regard to “reasonable impediment,” but not
“false.” Here are the relevant excerpts from his opinion:
Based upon the words used in Subsection (D)(1)(b) - "suffers a reasonable imped- iment that prevents the elector from obtaining photograph identification" - it is evident that the General Assembly sought to make allowances for those voters who have a valid reason, beyond their control, which would prevent them from obtaining a Photo ID. One such reason which is obvious is that there are numerous South Carolinians, generally over age 50, who do not have a birth certificate. A primary cause is that, decades ago, many
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babies were not born in hospitals, but were delivered by midwives and thus no birth cer- tificates were obtained. See, "Many Face Fight to Prove Identity," The State, July 19, 2011. In addition, persons with disabilities also might be unable to obtain a Photo ID. Thus, the Legislature, cognizant of the conditions beyond a person's control, for obtaining photographic identification, provided the affidavit mechanism as a means to vote for those who presented themselves at the polls, lacking such identification because of these circumstances. (page 3) Therefore in response to your specific question, the short time frame between any preclearance of the legislation and the date of any election immediately thereafter would constitute a "reasonable impediment" for purposes of the Voter ID legislation. Such short time period is beyond the voter's control. (page 5)
75. Given the lack of a clear standard in the law and conflicting testimony about the meaning of reasonable impediment and how its meaning would be determined by the county ECs (see be- low), the provisional ballot procedure might allow anyone to vote without producing any kind of documentary ID at the polls, or might not allow any such provisional ballots to be counted. The question involves the meaning of “false” and whether the county EC has discretion to interpret the meaning of “reasonable impediment,” and the standards for such discretion if it exists. These words may be interpreted by the county EC as allowing anything or allowing nothing. Therefore
this provision is troubling, if voters have no valid and current photo ID and choose to execute an
affidavit and a disproportionate number of them are Minorities. A process that is so open to sub-
jective application of the law is vulnerable to abuse including racial discrimination (see e.g.,
Charleston County, 316 F. Supp. 2d at 286 n. 23).
76. I first list interpretations that would exclude most, if not all, possible reasonable impedi- ments. Then I cite conflicting testimony that anything might be permitted as a reasonable imped- iment.
77. The law specifically provides a religious exemption. It is hard to know how the county
EC would know whether religious objections were true or false.
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78. Second, the South Carolina Attorney General indicates that if the preclearance of the pho-
to ID law is too close to the election, making it impossible to fully implement its provisions, this
would be a reasonable impediment. Presumably all voters who lack a valid photo ID could use
this excuse if the court preclears the law in September and it applies to the November 2012 elec-
tions, given Ms. Andino’s original opinion that full implementation must begin August 1st. Hav- ing large numbers of voters use the provisional ballot during a presidential election would cause long lines at polling places, and voter confusion. The provisional ballot arrangement works as long as it is an occasional safety valve. If tens of thousands of voters use it, the system is in dan- ger of breaking down. The South Carolina association of county election officials (SCARE) has objected to the photo ID law specifically because they are concerned that it will cause long lines and delays during the election process (see Andino deposition, p. 91-2). In 2008 South Carolina had an average wait time to vote of 57.7 minutes, which was the longest of any state. The next longest was Georgia at 33.0 minutes (see Alvarez, et al. pp. 73-4). So local election officials are on target in their concerns about anything that would further delay the voting process.
79. Third, the South Carolina Attorney General gives the example of a person with a disabil- ity. If the voter is able to present him or herself at the polling place on election day, they are pre- sumably abled enough that they could get down to the EC office prior to the election. Those who are too disabled to get downtown for their photo would presumably vote absentee by mail. To say that disability would be sufficient to prevent the voter from going downtown, but not suffi- cient to prevent him or her from getting to his local polling place, would suggest that the lack of access to a vehicle and travel problems are a reasonable impediment. One can imagine a tempo- rary disability that was relieved just before the election day, but again it is not clear how this would be supported or falsified, and it is surely a rare situation.
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80. Whether the “over 50” example cited by the South Carolina Attorney General would be allowed is also unclear, especially since the General Assembly specifically rejected an exception for the elderly. The requirement for a birth certificate only applies to the DMV. Voters without a birth certificate can get a photo ID at the EC office. Since both kinds of offices are about equally inconvenient for any particular voter, not having a birth certificate could not be considered a
“reasonable impediment.” This excuse could automatically be regarded as false.
81. On the other hand, Ms. Andino’s interpretation of the law is that the county ECs must accept any reason given. She testified that the following are reasonable impediments in her depo- sition: A lack of transportation to get downtown to the EC office (p. 113) and the inability to get to the EC or DMV office during working hours (pp. 113-4). She testified that a reasonable im- pediment is whatever the voter says it is (pp. 113-115) also see her discussion on pp. 155-6 and
169.) She testified that the county ECs have no discretion in their interpretation of reasonable impediment (p. 115). And it is difficult to see how any of these permissible excuses, according to
Ms. Andino, could be proven false. Mr. Whitmire seems confused about this issue in his deposi- tion. He first testified that he agreed with Ms. Andino’s interpretation (pp. 132, 196), but then rethinks his opinion after reading the statute and comes to the conclusion that he doesn’t know how to interpret these phrases (pp. 197-8).
82. The proponents of the photo ID law in the General Assembly are not in agreement about what reasonable impediment means in their depositions. Senator Martin testifies that transporta- tion problems would not be a reasonable impediment, and that it is not just anything that the vot- er believes it to be (pp. 108, 192). Senator Peeler testifies that he does not know what it means
(pp. 63-4), he seems to say that any excuse is acceptable (p. 65-68), but then his testimony on
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this subject becomes unclear. He can’t decide whether “I just didn’t feel like it” is or is not a rea- sonable impediment (pp. 70-1). Representative Harrison testifies that being bedridden or not hav- ing a birth certificate is a reasonable impediment (pp. 57), but just not wanting to do it is not (p.
58). According to Representative Harrison, even for the birth certificate excuse, the voter needs to make an effort in order for it to be a reasonable impediment (p. 58). He testifies that the SEC will make sure that not having enough notice is not a reasonable impediment (p. 58). He doesn’t know whether the following are reasonable impediments: no bus service, did not know that one could not vote on an expired license, a photo is an invasion of privacy, my child was sick or I could not get a babysitter to go downtown (p. 106). But he testified that just being poor is not a reasonable impediment (p. 141). Representative Harrell testifies that any reason may be accepta- ble (p. 130). Mr. Dennis, who drafted the photo ID bill for the House, testified in his deposition
(p. 149) that he does not know what reasonable impediment means in practice. In Representative
Clemmons’ testimony (pp. 56-60) he says he would rely on the SEC to define reasonable imped- iment, cites the Attorney General’s birth certificate exemption, and indicates that transportation issues could be a reasonable impediment. Lt. Governor McConnell is unsure about whether “I
didn’t know about the law before” would be an acceptable reasonable impediment (deposition, p.
168).
83. The SCARE Legislative Committee indicated that its members are also uncertain (see
Andino deposition, pp. 92-3). In her deposition, Ms. Andino does not know whether the opinion
of the Attorney General (cited above) addresses the local election officials concerns (p. 94). Fur-
thermore, Ms. Andino (deposition, pp. 135, 205-7) and Mr. Whitmire (deposition pp. 185-90)
admit that the State Election Commission has no control over how poll managers are trained and
instructed, or how the photo ID provisions would be implemented. There is reason to believe that
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the county ECs will not necessarily be governed by the SEC decisions. Mr. Dennis testified that
“It is fair to say, I think, that the 46 voter registration boards in this state have 46 different pro- cesses by which you register to vote” (deposition, p. 141-2). Yet voter registration is set in the
South Carolina Constitution (Dennis deposition, p. 96-98). If there is no uniformity in imple- menting a constitutional provision, one would not expect uniformity on a statutory question. Yet the legislative proponents of the photo ID law are depending on the SEC to impose uniformity and an appropriate definition of reasonable impediment. See depositions of Martin, pp. 108-10,
187-93; Peeler, pp. 65, 71; Harrison, pp. 59, 103-5; Harrell, pp. 79-80, 130-2; Dennis, p. 56, 92;
Clemmons, pp. 65 for discussion of reliance on the SEC.
84. Because the discretion is left up to the county ECs with the criteria so uncertain, troubling concerns are raised. In United States v. Charleston County (316 F. Supp. 2d at 286-89 n.23) the court found “significant evidence of intimidation and harassment” of Black voters in Charleston
County, SC by poll managers and poll watchers based on testimony about such conduct in elec- tions from the 1980s through 2002. The problem is that the county ECs are not responsible to the
SEC. They are appointed by the governor or the legislative delegation; and cannot be removed by, and are independent of, the SEC. The selection of election officials in South Carolina is par- tisan, and there are no provisions in many counties for the minority party to have representation on the commissions and boards that will make these decisions. The governor makes the county
EC appointments with the advice of the majority of the county delegation in the General Assem- bly, except in a few counties where the majority of the delegation appoints directly. The race of the voter who submitted the provisional ballot can be known prior to the canvass and it is possi- ble for election officials to arbitrarily decide to accept or reject a provisional ballot on the basis of race and known relationship of race to partisanship or some other factors, especially in pre-
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cincts with a high proportion of Minority voters.
85. The scholarship on the behavior of election officials is clear: partisanship makes a differ-
ence in how provisional ballots are judged (Kropf and Kimball (2012, chapter 6). Foley (2005)
discusses the vulnerability of provisional ballots to “post election abuse” (e.g., not being counted by the county EC) if rules are not clear and effectively enforced. Baybeck and Kimball (2008, p.
18) also indicate problems with implementation of provisional ballot procedures: “… provisional
ballots are more likely to be rejected in precincts with non-white residents and female-headed
households with children. Where we have individual-level data on provisional voters, Independ-
ents and nonpartisans are more likely than partisans to see their provisional votes rejected, and
non-whites are more likely than whites to see their provisional ballots rejected.”
86. Even if we assume fair administration at the polling place and county EC office and Ms.
Andino’s broad interpretation of the statute, the provisional ballot procedure would still have a
disproportionate negative effect on Minority voters. The voters who decide to try to vote without
a photo ID, will be redirected away from their neighbors, family, and friends to a different table
where they will be asked to complete an affidavit swearing that they are who they claim to be and declaring that they have some kind of impediment. Their ballot will be sealed in an envelope and they will not know whether it will be counted. This procedure is embarrassing, occurring within what for some of those with low levels of literacy is a stressful process. They are, in es- sence, being singled out as potentially fraudulent voters without probable cause. This apparently minor increase in the cost of voting, can have an impact on turnout.
THE NEED FOR PHOTO ID TO PREVENT IMPERSONATION VOTE FRAUD IS PRETEXTUAL
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87. Hypothetically, it is possible that an individual in South Carolina has impersonated a reg-
istered voter. If the photo ID law is not precleared, an instance of impersonation might occur in
the future. Implementation of the photo ID law might deter some instance of impersonation fraud. That said, impersonation fraud is not a problem (see Andino deposition, p. 142 for the lack
of impersonation fraud in South Carolina). Certainly not a problem that outweighs the public in-
terest in encouraging voting, the greater problems in the voting process not being address by
South Carolina such as long lines at the polls, and the disproportionate negative impact this law
would have on Minority voters. Moreover, the photo ID law would not necessarily prevent im-
personation fraud (see Andino deposition, p. 64 and Whitmire deposition, p. 152-3). Mr.
Whitmire indicates in his deposition (pp.157-8) that there are no plans to train poll managers in
spotting fake ID, and there is nothing to prevent counterfeiting the planned EC photo registration
card. There is no chance that poll managers will be trained in the identification of fake ID in the
same way that personnel in the DMV are trained (see Col. Shwedo’s deposition, p. 187).
88. Impersonation vote fraud can be put in formula terms like the calculus of voting present-
ed above: PF > One-Vote. The impersonator has a chance (P) of being caught committing felony
(F). If he or she succeeds in the impersonation the preferred candidate or party gains one vote.
The chance of one vote deciding any election is virtually nil. While it is true that without photo
ID, the probability of detection (P) is also low, the incentive to commit this crime still cannot
match the possible cost. In other words, we would logically expect this particular kind of vote
fraud to be extremely rare, unless part of an organized effort that would surely be detected unless
it involved corrupt election officials.
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89. To succeed in this kind of fraud the impersonator must know that the voter he or she is
impersonating has not already voted, and that the voter won’t be in the voting place at the time of
the impersonation. He or she must also know that none of the poll workers and no one who
might be coming to vote at about that time knows the voter. He must also match the sex and ap-
proximate age of the voter. The voter’s date of birth is on the poll book, and the sex of the voter
can usually, but not always, be determined by the given name. Since an impersonator cannot use
a photo ID, he must obtain the voter registration certificate issued to the impersonated voter by
the EC. This card has to have the voter’s signature. So he must also be able to forge a reasonable
facsimile of the voter’s signature in the poll book (see discussion of the uncertainty about a sig-
nature on the new photo ID card from Mr. Whitmire’s deposition, p. 155).
90. The evidence available to the General Assembly and the Governor about impersonation
vote fraud is not in dispute. There are no cases of impersonation vote fraud that have resulted in indictments, much less convictions, in South Carolina at least in the last ten years and perhaps for a longer period. This fact was repeated again and again in the debates in the House and Sen-
ate. Advocates of the photo ID law argue that impersonation fraud is difficult to detect when val-
id and current photo ID is not required. While this is true, the undisputed facts closely match the
logic presented above. Impersonation fraud is difficult to pull off, and just not worth the risk.
That is why it is extremely rare, and not a public policy problem. Scientific studies of fraud in
many places in the country have confirmed the absence of this type of vote fraud, and these stud-
ies were cited in the General Assembly debate (see statement of Representative Sellers cited
above and specifically the five-year study of voter fraud conducted during the administration of
George W. Bush discussed in the New York Times, 12 April 2007, http://www.nytimes.com
/2007/04/12/washington/12fraud.html?pagewanted=all, that was cited frequently in the debates).
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91. In her deposition, Ms. Andino was questioned closely about the absence of impersonation vote fraud. Here are some of the things she testified about this subject in her deposition. There is no evidence that the current procedures for preventing vote fraud are not effective (p. 50). She did not ask for a photo ID law (p. 50). Only two examples have been brought to her attention, and neither were verified (pp. 53-4). The survey the SEC undertook of the county ECs, uncov- ered no evidence of impersonation fraud (pp. 54-6). The statewide association of county election officials (SCARE) has opposed a photo ID law (p. 67). Indeed, the legislative priorities for
SCARE have not included anything about fraud, but did include advocacy of no excuse absentee and early voting (pp. 67, 86-90). Asked whether in her 25 years of experience with the SEC cov- ering perhaps 20 million votes cast, has she determined to her satisfaction that anyone attempted to impersonate another voter at the polls, she answered “Not at the polls” (p. 142). She is not aware of any vote fraud that the photo ID law would have prevented (p. 142). She was asked by
Senator Campsen to look into the issue of voters being registered in more than one state. She sent him a letter saying that the SEC had looked into that and that there was no evidence of people voting in multiple states (p. 195). One case that was reported from Charleston County merely on the basis of an unsubstantiated conversation, was of a mother voting for her daughter (Andino deposition p. 53 and Whitmire deposition, p. 56-58). But the birth date of the voter is on the poll book, so it is difficult to believe this story unless the poll manager was corrupt or inattentive.
92. The legislative advocates of the photo ID law testified in their depositions that they, like
Ms. Andino, do not have any actual credible evidence of voter impersonation fraud. Instead, they present unverified “anecdotes” (term used by Mr. Dennis, p. 18, and Representative Clemmons, p.54). They sometime cite other kinds of fraud. They make these admissions in these pages: Sen- ator Martin, pp. 25, 38, 42, 89, 119-10; Senator Peeler, pp. 25-8; Representative Harrison, pp.
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34-41, 78-79, 96-97; Representative Harrell, pp. 40-3, 147; Representative Lowe, pp. 19-20, 78;
Mr. Dennis, pp. 18, 24, 119-20; Representative Clemmons, pp. 41-2, 54; and Lt. Governor
McConnell, pp. 44-6.
93. The Republican majority in the General Assembly agrees that South Carolina has an ob- ligation to make the ballot available to all eligible citizens, because voting is a right (see Senator
Campsen’s speech cited above). But the state also has a public policy of actually encouraging turnout (see Andino deposition, p. 141). In accordance with state and Federal law, policies are
designed to encourage voting. That is why registration can be accomplished by mail, at the
DMV, or by registrars out in the field like the political parties and the League of Women Voters.
Absentee voting is available in South Carolina (although not “no excuse” absentee), polling places have to be well marked and accessible, and voting equipment is purchased in part with the ease of the voter in mind.
94. Anyone who has been involved in the administration of elections understands that there
are no perfect elections. Clerical errors, human errors throughout the process from the poll man-
agers to the canvassing board, bad ballot design, and machine errors far exceed any imagined
votes changed by impersonation at the polls. Kropf and Kimball (2012, especially pp. 110-1)
write extensively about the really important problems with the election system all of which stem
not from fraud, much less impersonation fraud, but from underfunding and some partisanship in
election administration.
95. Some election officials argue that the photo ID law, as contained in the House bill, con-
tains loopholes that open the door to impersonation fraud, rather than closing it. In an email from
Marshall Scott to Senator Tom Davis, Representative Clemmons and others dated 18 April 2011
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(SC_00000953-960) is a document titled “House Bill 3003 Concerns from the Beaufort County
Board of Elections and Registration.” Here is a summary of their concerns. Current and valid ID
cards do not establish domicile according to the new law. (Passports and military ID do not have
an address either). Assume that “John Smith” gets a current and valid photo ID. He could then go
into any precinct where a “John Smith” is registered and vote. His identity would not be ques-
tioned, and he would not need to present one of the authorized forms of ID under the benchmark
South Carolina law that do contain an address.
96. Ms. Andino stated that the only change the photo ID law would bring to an impersonation
attempt is that the impersonator would have to complete an affidavit giving a reasonable imped-
iment for not having a photo ID, in addition to everything else that would be involved in an im-
personation (deposition, p. 162). This is an incomplete analysis. Under the benchmark law the
impersonator has to produce the voter registration certificate of the voter who is being imperson-
ated (the other acceptable IDs have a photo) and forge the signature in the poll book to resemble
the signature on the certificate. It is possible that under the photo ID law the impersonator might not need to present any documentation at the polls, and the poll managers would have no signa- ture of the voter to compare to that of the impersonator. The new law may, in that sense, make impersonation voter fraud easier. Also see Lt. Governor McConnell’s discussion of the signature provision in the current law (deposition, p. 56).
97. The Beauford County Board of Elections and Registration also question the legality of an affidavit executed in the precinct that would not be properly witnessed by a notary public. The legislative proponents of the photo ID law are divided on whether a Notary Public is needed to verify the signature according to their depositions. Senator Martin testifies that he does not think
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a notary is needed at the polls for this purpose (p. 112). Senator Peeler does not know (p. 73).
Representative Harrison does not know either, but testifies that if a notary is needed the SEC will see that there is a notary at every polling place (pp. 60-2). Representative Harrell is not sure ei- ther but if it is required by law then one would have to be present in every polling place, and the county EC would have to provide them. Neither does he know how a notary could notarize a sig- nature for a person who has no picture ID (pp. 128-9). Representative Clemmons is sure that a notary must be present at the polls to notarize signatures on the affidavits for provisional ballots because “one cannot execute an affidavit without a notary” (p. 68), and the law cannot be im- plemented with regard to the provisional ballots without notaries (pp. 70-1). He does not, how- ever, know of any plans for the county ECs to have notaries at the polls (pp.70-1), and he does not indicate how a notary would be able to notarize a signature of a person who has no photo ID.
There is also an obvious logical problem. The impersonator is anonymous. Only the name of the person being impersonated is known. It is difficult to see how impersonation voter fraud is pre- vented, or even deterred somewhat by the photo ID law.
98. The Republican majority in the General Assembly and Governor Haley have emphasized their belief that the public lacks confidence in the election process in South Carolina because voters are not required to show a photo ID when they vote. But they present no evidence. The anecdotal evidence cited by the Republican advocates of the photo ID policy in the debates and
Representative Clemmons emails suggests that many voters believe that photo ID is already re- quired. He says: “The first response I get when I discuss this bill with my constituents is: “That’s not already the law?” (see email from Representative Clemmons to Ralph Panzrino, 6 May 2010,
SC_00000575-576). In their depositions the legislative proponents of the photo ID law repeat these anecdotal assessments of public confidence, but admit they neither collected nor sought
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systematic evidence of confidence (see Representative Harrison, p.47-8, 50; and Clemmons, pp.
53-5).
99. The SEC conducted the only polls on public confidence that would have been available to
the General Assembly. Ms. Andino said that post election surveys of voters conducted by the
SEC in the past (as recently as 2004 and 2006) indicate that 80 to 90% of the voters were “very
confident” in the election process, and she has no reason to believe that the level of confidence
has changed (deposition, pp. 177-8). There is no evidence that the SEC offered these data to the
General Assembly or that they asked whether such data existed.
100. Those most in touch with public perception would be the grassroots officials who imple- ment elections in South Carolina. Ms. Andino, however, reports that her staff and the SEC did not ask the General Assembly to pass a photo ID requirement, but they have supported early vot- ing (deposition, p. 50), and the association of county election officials (SCARE) has consistently opposed a photo ID requirement, while also supporting early voting (Andino deposition, pp. 67,
86-90, 146). Mr. Whitmire claims that the SEC has taken no position on the photo ID law be-
cause it is too “political” (meaning partisan), and they wish to maintain their neutrality (deposi-
tion, pp. 35-6).
101. The photo ID law was a primary goal of the Republican Party organization, Republican
activists, and some Republican members in both the House and Senate (for example, see the Re-
publican Party Platform, Summer 2010), not from the general public. The campaign from party
activists for the law as a “clean bill,” mentioned in Senator McConnell’s explanation of the con-
ference report (Appendix C) and described by him as “propaganda,” is another clear indication
of the Republican Party organization as the main source of pressure for a photo ID bill. Most of
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the emails to and from Representative Clemmons also reflect this source of the pressure, and he
confirms this conclusion in his deposition (pp. 175-8).
102. Other proponents of the photo ID bill also testify that Republican Party activists and Tea
Party groups were the pressure for the photo ID bill. These groups were the source of the idea
that Republican senators were responsible for the defeat of the law in the 09-10 session of the
General Assembly. This pressure was sufficient to force Republican Senators to abandon early
voting, and elderly exemption from the law, and the inclusion of government employee ID for voting. They did not want to be blamed again for the defeat of the photo ID law. For further dis-
cussion of this political situation see Lt. Governor McConnell’s statement in Appendix C and his
deposition, pp. 104-8, 127-8, 135-6, 159-61, 172-3. For similar support see depositions of: Sena-
tor Martin, pp. 142-152; Representative Harrison, pp. 50, 155; and Representative Harrell, pp.
115, 164-6.
CONCLUSIONS
103. Under the Arlington Heights framework one is not required to prove that racial discrimi- nation was the sole, primary, or dominant motivation behind a law that adversely affects a Mi- nority group. A court may find that a policy with a clearly foreseeable and significant adverse effect on a Minority population was enacted with discriminatory intent even if that adverse effect results from the application of an otherwise neutral state policy. Requiring a valid photo ID to
vote may appear to be a “neutral state policy,” but it is not a policy that could reasonably be in-
tended to deal with a significant public problem. It runs counter to another important public in-
terest in promoting voting, and it adversely affects Minorities to a greater extent than Whites.
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104. Why would the proponents of a photo ID law in the General Assembly and the governor
enact a policy that addresses no public problem, and runs counter to an important public interest
in voter turnout? The people who will be most seriously affected by the photo ID law are Minori-
ties who almost never vote for Republicans in South Carolina. A law in South Carolina that more
seriously hurts Minorities than Whites, works to the advantage of Republicans. While it may be
that the advocates of the photo ID law believe it is good public policy, they can afford to be un-
concerned about the effect it might have on voter turnout since any effect would harm Democrat- ic voters more than Republicans.
105. Dr. Stewart’s analysis shows clearly that the photo ID law will impose a burden that dis- proportionately affects Minority citizens. This “burden” is not slight or insignificant as South
Carolina claims. There is not, as required by the Arlington Heights decision, a “reasonable and legitimate justification” for this change. The alleged fraud justification is pretextual. There is no evidence of impersonation vote fraud or of a lack of public confidence in the election process
because of impersonation vote fraud. But even if one assumes that the photo ID law is an “oth-
erwise neutral state policy” the law has a clearly foreseeable and significant adverse effect on the
Minority population, and therefore was enacted with discriminatory intent. The General Assem-
bly was aware of this adverse effect and enacted the photo ID law in spite of that knowledge.
106. The General Assembly did not take the concerns of Minorities into account in the for-
mation of this policy. Whatever compromises were made with Minority Senators were negated in
the conference committee that adopted the House version on all matters involving the photo ID
provision of Section 5. Therefore, Minority representatives in the House did not play any im-
portant role in the formation of this policy.
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107. South Carolina is covered under § 5 of the Voting Rights Act because it is one of several states that had a long history of racial discrimination in registration and voting prior to the adop- tion of the Act (see Bullock and Gaddie 2009, chapter 6). South Carolina has a history of de jure segregation, and continuing racial disparities between the races in socio-economic status, educa- tion, employment, and income.
108. I conclude that the photo ID law was enacted with the intent to discriminate against Mi- nority citizens and to retrogress by offering them less of an ability to participate in the political process and elect candidates of their choice than they have under the benchmark statutes.
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SELECTED REFERENCES ON INTENT Binion, Gayle. 1983. “‘Intent’ and Equal Protection: A Reconsideration.” Supreme Court Re- view: 397-457.
Eisenberg, Theodore, and Sheri Lynn Johnson. 1991. “The Effects of Intent: Do We Know How Legal Standards Work?” Cornell Law Review 76: 1151-97.
Ely, John Hart. 1970. “Legislative and Administrative Motivation in Constitutional Law.” Yale Law Journal 79: 1025-1341.
Karlan, Pamela S. 1983. “Discriminatory Purpose and Mens Rea: The Tortured Argument of In- vidious Intent.” Yale Law Journal 93: 111-34.
Karst, Kenneth L. 1978. “The Costs of Motive-Centered Inquiry.” San Diego Law Review 15:1163-66.
Kousser, J. Morgan. 1988. “Expert Witnesses, Rational Choice and the Search for Intent.” Con- stitutional Commentary 5:352-53.
Kousser, J. Morgan. 1991. “How to Determine Intent: Lessons From L.A.” Journal of Law and Politics 7:591-732.
Kousser, J. Morgan. 1992. “Was Memphis’s Electoral Structure Adopted or Maintained for a Racially Discriminatory Purpose?” Caltech Social Science Working Paper No. 807. Pasadena: California Institute of Technology.
Kousser, J. Morgan. 1999. Colorblind Injustice: Minority Voting Rights and the Undoing of the Second Reconstruction. Chapel Hill: The University of North Carolina Press [especially chapters 2 and 7].
McCrary, Peyton. 1985. “Discriminatory Intent: The Continuing Relevance of ‘Purpose’ Evi- dence in Vote-Dilution Lawsuits.” Howard Law Journal 28:463-93.
Mele, Alfred R. 1992. Springs of Action: Understanding Intentional Behavior. New York: Ox- ford University Press.
Miller, Andrew P., and Mark A. Packman. 1987. “Amended Section 2 of the Voting Rights Act: What is the Intent of the Result Test?” Emery Law Journal 36:1-73.
Miller, Barry A. 1977. “Proof of Racially Discriminatory Purpose Under the Equal Protection Clause: Washington v. Davis, Arlington Heights, Mt. Healthy, and Williamsburgh.” Harvard Civil Rights-Civil Liberties Law Review 12: 725-70.
Note. 1976. “Reading the Mind of the School Board: Segregative Intent and the De Facto/De Ju- re Distinction.” Yale Law Journal 86:317-55.
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Note. 1982. “Making the Violation Fit the Remedy: The Intent Standard and Equal Protection Law.” Yale Law Journal 92:328-51.
Ortiz, Daniel R. 1989. “The Myth of Intent in Equal Protection.” Stanford Law Review 41:1105- 52.
Parker, Frank R. 1983. “The ‘Results’ Test of Section 2 of the Voting Rights Act: Abandoning the Intent Standard.” Virginia Law Review 69: 715-64.
Weinzweig, Marjorie J. 1983. “Discriminatory Impact and Intent Under the Equal Protection Clause: The Supreme Court and the Mind-Body Problem.” Law and Inequality 1: 277-339.
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Alvarez, R. Michael; Thad Hall; and Susan Hyde (eds.). 2008. Election Fraud: Detecting and Deterring Electoral Manipulation. Washington: Brookings Institution Press.
Alvarez, Michael R.; Stephen Ansolabehere; Adam Berinsky; Gabriel Lenz; Charles Stewart III; and Thad Hall. 2012. “2008 Survey of the Performance of American Elections Final Report.” Pew Charitable Trust, the JEHT Foundation, and the American Association of Retired Persons.
Baybeck, Brady; and David C. Kimball. 2008. “The Political Geography of Provisional Ballots,” Paper presented at the Annual Meeting of the American Political Science Association, Boston, MA, August 2008.
Black, Earl and Merle. 1987. Politics and Society in the South. Cambridge: Harvard University Press.
Black, Earl and Merle. 2003. The Rise of Southern Republicans. Cambridge: Harvard University Press.
Brady, Henry E. and John E. McNulty. 2011. “Turning Out to Vote: the Costs of Finding and Getting to the Polling Place.” American Political Science Review 105:115-134.
Bullock, Charles S. III and Ronald Keith Gaddie. 2009. The Triumph of Voting Rights in the South. Norman: University of Oklahoma Press.
Downs, Anthony. 1953. An Economic Theory of Democracy. New York: Harper.
Fay, Jessica A. 2005. “Elderly Electors Go Postal: Ensuring Absentee Ballot Integrity for Older Voters.” Elder Law Journal 13:453ff.
Foley, Edward B. 2005. “The Promise and Problems of Provisional Voting,” 73 George Wash- ington Law Review 73:1193.
Fortier, John C. and Norman J. Ornstein. 2003. “The Absentee Ballot and the Secret Ballot: Challenges for Election Reform.” University of Michigan Journal of Law Reform 36:483ff.
Gurin, Patricia; Hatchett, Shirley; Jackson, Jon S. 1989. Hope and Independence: Minority’s Response to Electoral and Party Politics. New York: Russell Sage Foundation.
Imai, Kosuke; and Gary King. 2004. “Did Illegal Overseas Absentee Ballots Decide the 2000 U.S. Presidential Election?’ Perspectives on Politics 2:537-549.
Karlawish, Jason; H.T. Richard; J. Bonnie; Paul S. Appelbaum; Rosalie A. Kane; Constantine G. Lyketos; Pamela S. Karlan; Bryan D. James; Charles Sabatino; Thomas Lawrence; and David
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Knopman. 2008. “Identifying the Barriers and Challenges to Voting by Residents in Nursing Homes and Assisted Living Settings.” Journal of Aging and Social Policy 20:65-79.
Keyssar, Alexander. 2001. The Right to Vote: The Contested History of Democracy in the United States. New York: Basic Books.
Kropf, Martha, and David C. Kimball. 2012. Helping America Vote: The Limits of Election Re- form. New York: Routledge.
McNulty, John E.; Conor M. Dowling; and Margret H. Ariotti. 2009. “Driving Saints to Sin: How Increasing the Difficulty of Voting Dissuades Even the Most Motivated Voters.” Political Analysis 17:435-455.
Pitts, Michael J. 2008. “Empirically Assessing the Impact of Photo Identification at the Polls Through an Examination of Provisional Balloting,” Journal of Law & Politics 24:1-40.
Riker, William H., and Peter Ordeshook. 1970. “A theory of the Calculus of Voting.” American Political Science Review 62:25-41.
Verba, Sidney and Norman H. Nie. 1972. Participation in America: Social Equality and Political Democracy (New York: Harper and Row).
Verba, Sidney; Norman H. Nie; and Jae-on Kim. 1978. Participation and Political Equality: A Seven National Comparison (Cambridge: Cambridge University Press).
Wolfinger, Raymond E. and Rosenstone, Steven J. 1980. Who Votes? (New Haven: Yale University Press).
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Table 1
Selected Statistics from Dr. Charles Stewart’s Declaration
On the “No Match” Between the DMV Records and Voter Registration
All Active “No Match” Valid “No Match” Only Valid Race/ Registered and Invalid License/ID Card2 Ethnicity Voters License/ID Card1
Per- Num- Probability Probability Number cent ber Percent Expressed Number Percent Expressed As % As %
White 1,902,625 69.5% 33,754 53.7% 1.9% 98,113 56.6% 5.5%
Black 767,037 28.0% 26,035 41.4% 3.6% 69,283 40.0% 9.5%
Hispanic 28,214 1.0% 1,240 2.0% 4.8% 2,586 1.5% 10.0%
Asian 18,293 0.7% 538 0.9% 3.2% 1,047 0.6% 6.2%
Other 14,140 0.5% 1,035 1.6% 8.0% 1,668 1.0% 12.9%
Indian 5,345 0.2% 245 0.4% 4.9% 502 0.3% 10.1%
Mixed 164 0.0% 17 0.0% 10.6% 23 0.0% 14.4%
Unknown 91 0.0% 26 0.0% 29.2% 28 0.0% 31.5%
Total 2,735,909 100% 62,890 100% 2.4% 173,250 100% 6.7%
Notes:
1. 6,346 records are excluded, mostly due to missing Social Security numbers, but also potentially due to the failure of the SSN+Sex algorithm. It appears that the latter is rare. These are 0.23% of the records. Surrendered licenses removed from the anaysis, because the voter would not have the license card to use for ID.
2. 13,353 records are excluded. These are .48% of the records.
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Table 2
Comparison of the Socio-Economic Status and Availability of Automobile Transportation
of Whites and Blacks in South Carolina
Category or Description of Statistic Whites Any Part
Alone Black
Percent of households without a vehicle available 4.0% 15.3%
Percent of individuals below the poverty level 11.1% 28.4%
Median household income, adjusted for inflation $51,141 $28,970
Percent of individuals over 25 who have completed high 86.2% 75.7% school
Percent of individuals over 25 who have a baccalauriate 27.9% 12.9% degree
Source: U.S. Census American Community Survey, 5 year composite for 2010.
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Note: Race of the household is determined by the race of the household head.
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Table 3 Votes in the General Assembly on H3003, Session 119 (2011-12) in the House Number of Number of Minority White Dem- Description of Action Being Voting On Democrats ocrats Voting In the House of Representatives Voting With With Repub- Republicans licans (out of (out of 29 in 18 in House) House) Amendment 1: Miscellaneous minor changes, but might be seen as restricting the kinds of identification which 0 3 could be used to vote. Adopted 73 to 41 Amendment 2: Broadens the kinds of identification that would suffice to include identification issued by munic- 12 0 ipality, boards, authority, or other entities of SC. Tabled 83 to 28 Amendment 4: Eliminate Sections 8, 9, and 11. Would remove notification and other parts that received pre- 2 0 clearance from DOJ, and take effect immediately. Ta- bled 69 to 42 Amendment 5: Exempt people over 65 or with disabili- 0 0 ties. Tabled 70 to 42 Amendment 8: Establish early voting. Tabled 69 to 41 0 0 Amendment 18: Remove funding. Tabled 69 to 41 0 0 Amendment 26: Allow poll watchers to sit directly be- hind poll managers who are checking identification. Mo- 0 7 tion to table failed 35 to 77 Amendment 26: Adopted 79 to 31 0 8 Amendment 27: Bill not to take effect until funding is 0 0 approved. Tabled 72 to 42 Motion to Not Continue: Failed 43 to 76 0 2 Table Motion to Re-Commit The Bill: Passed 81 to 36 3 4 Passage of Bill: Passed 74 to 45 0 0 Reconsider Passage of Bill: Tabled 71 to 38 0 0 Adopt Amendment 1a to Conference Bill: Provisions for situations where individual does not have valid identifi- 0 0 cation and votes provisional ballot. Sets criteria for counting the provisional ballot. Adopted 66 to 38. Cloture: Cloture called 69 to 40 0 0 Conference Report: Adopted 71 to 36 0 0
Source: http://www.scstatehouse.gov/billsearch.php?billnumbers=3003&session=0&summary=B 3/29/2012
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South Carolina Legislature Online - Bill Search by Bill Number
Table 4 Votes in the General Assembly on H3003, Session 119 (2011-12) in the Senate Number of Number of Description of Action Being Voting On Minority White Dem- In the Senate Democrats ocrats Voting Voting With With Repub- Republicans licans (out of (out of 9 in 10 in Senate) Senate) To Set for Special Order: Failed 25 to 15 0 0 To Set for Special Order: Failed 26 to 14 0 0 To Set for Special order: Failed 26 to 17 0 0 Rule 15A—Cloture: Passed 24 to 17 0 0 Amendment P1: Add student identification. Tabled 27 to 0 1 13 Amendment P3: Hospital patients get absentee ballot. 0 3 Tabled 27 to 13 Amendment P4: Exemption for persons 62 years of age 0 0 or older. Adopted 17 to 25 Amendment P7: Increase the fee for renewal of special 6 8 identifications card to $15.50 for persons from 10 to 16 years of age. Failed 3 to 38 Amendment P482: Authorized representative of a voter Unanimous Unanimous may request absentee ballot. Counties may establish ad- ditional early voting centers. Adopted 41 to 0 Amendment P8: Early voting centers may be open 8:00 5 6 am to 9:00 pm Monday through Friday. Adopted 5 to 34 Amendment P9: Signature on absentee ballot must be 6 6 red or blue ink. Failed 2 to 40 Amendment P11: Fee for renewal of identification card 5 9 for those between 10 and 16 would be $11. Failed 3 to 38 Amendment P15: Each county shall establish 3 to 8 ear- 2 5 ly voting centers. Failed 9 to 31 Amendment P14B: Exempt from photo identification 8 10 requirement those born on or before 1 January 1947. Adopted 39 to 3 2nd Reading As Amended: Passed 26 to 15 0 2 3rd Reading As Amended: Passed 24 to 15 0 1 To Nonconcur to the House Bill: Passed 28 to 15 7 10 Conference Report: Adopted 26 to 16 0 0 Source: http://www.scstatehouse.gov/billsearch.php?billnumbers=3003&session=0&summary=B
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3/29/2012 South Carolina Legislature Online - Bill Search by Bill Number
Appendix A Search Criteria for Media Coverage of Photo ID Bill
Newspapers: ∙ Associate Press State Wire ∙ Charlotte Observer ∙ Examiner Online ∙ The Herald ∙ The State Search Provider: NewsBank Search terms: Voter ID, Voter ID Bill
Newspaper: ∙ NYT Search Provider: Lexis Search terms: “South Carolina Voter ID Bill”
Newspaper: ∙ Post & Courier Search Provider: Post & Courier Online Archives Search Terms: Voter ID, Voter ID Bill
The majority of the research was done using NewsBank.
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Appendix B Time Line for Photo ID Bill H3003, Act R 54 2010-11 Session of the South Carolina General Assembly
12/07/10House Prefiled 12/07/10House Referred to Committee on Judiciary 01/11/11House Introduced and read first time (House Journal-page 3) 01/11/11House Referred to Committee on Judiciary (House Journal-page 3) 01/12/11House Member(s) request name added as sponsor: Atwater 01/18/11House Member(s) request name added as sponsor: Henderson, Quinn, Tallon, Patrick, J.R.Smith, Hixon, Taylor, Young, Bedingfield, Corbin, Pitts, Chumley, Spires, Pope, Bikas, Pinson 01/19/11House Committee report: Favorable with amendment Judiciary (House Journal-page 2) 01/20/11House Member(s) request name added as sponsor: D.C.Moss 01/25/11House Member(s) request name added as sponsor: Erickson, Willis 01/25/11House Objection by Rep. Cobb-Hunter and Sellers (House Journal-page 32) 01/25/11House Requests for debate-Rep(s). Clemmons, Crawford, JE Smith, Hart, Govan, McEachern, Erickson, Brantley, King, Jefferson, Munnerlyn, Forrester, Parker, Allison, Mack, Mitchell, Bikas, DC Moss, JR Smith, Hixon, Taylor, Young, RL Brown, GA Brown, Anderson, Clyburn, Hosey, Brannon, Hayes, Battle, Gilliard, McCoy, Stringer, Sandifer, Whitmire, VS Moss, Nanney, Bedinfield, Henderson, Allen, Hearn, Dillard, Corbin, Hardwick, Loftis, Pope, Whipper, Ott, and Vick (House Journal-page 32) 01/26/11House Member(s) request name added as sponsor: Brady, Herbkersman, Nanney, Brannon, Whitmire 01/26/11House Amended (House Journal-page 28) 01/26/11House Read second time (House Journal-page 28) 01/26/11House Roll call Yeas-74 Nays-45 (House Journal-page 28) 01/27/11House Read third time and sent to Senate (House Journal-page 34) 01/27/11Senate Introduced and read first time (Senate Journal-page 17) 01/27/11Senate Referred to Committee on Judiciary (Senate Journal-page 17) 02/08/11Senate Motion For Special Order Failed (Senate Journal-page 14) 02/08/11Senate Roll call Ayes-25 Nays-15 (Senate Journal-page 14) 02/09/11Senate Motion For Special Order Failed (Senate Journal-page 23) 02/09/11Senate Roll call Ayes-26 Nays-14 (Senate Journal-page 23) 02/10/11Senate Special order, set for February 10, 2011 (Senate Journal-page 19) 02/10/11Senate Roll call Ayes-26 Nays-17 (Senate Journal-page 19) 02/15/11Senate Debate interrupted (Senate Journal-page 24) 02/16/11Senate Debate interrupted (Senate Journal-page 23) 02/17/11Senate Debate interrupted (Senate Journal-page 12) 02/22/11Senate Debate interrupted (Senate Journal-page 23) 02/23/11Senate Committee Amendment Amended and Adopted (Senate Journal-page 36)
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02/23/11Senate Read second time (Senate Journal-page 36) 02/23/11Senate Roll call Ayes-26 Nays-15 (Senate Journal-page 36) 02/24/11Senate Read third time and returned to House with amendments (Senate Journal-page 11) 02/24/11Senate Roll call Ayes-24 Nays-15 (Senate Journal-page 11) 03/02/11House Debate adjourned until Thursday, March 3, 2011 (House Journal-page 49) 03/03/11House Debate adjourned until Tuesday, March 8, 2011 (House Journal-page 28) 03/08/11House Debate adjourned until Wednesday, March 9, 2011 (House Journal-page 73) 03/09/11House Debate adjourned on amendments (House Journal-page 27) 03/10/11House Debate adjourned on amendments (House Journal-page 30) 03/29/11House Debate adjourned on Senate amendments until Wednesday, March 30, 2011 (House Journal-page 30) 03/30/11House Debate adjourned on Senate amendments until Thursday, March 31, 2011 (House Journal-page 33) 03/31/11House Debate adjourned on amendments (House Journal-page 35) 04/05/11House Debate adjourned on Senate amendments until Wednesday, April 6, 2011 (House Journal-page 22) 04/06/11House Senate amendment amended (House Journal-page 36) 04/06/11House Returned to Senate with amendments (House Journal-page 36) 04/13/11Senate Non-concurrence in House amendment (Senate Journal-page 35) 04/13/11Senate Roll call Ayes-28 Nays-15 (Senate Journal-page 35) 04/14/11House House insists upon amendment and conference committee appointed Reps. Clemmons, Lucas, and Merrill (House Journal-page 2) 04/14/11Senate Conference committee appointed McConnell, Campsen, and Scott (Senate Journal page 21) 04/26/11House Conference report received and adopted (House Journal-page 38) 04/26/11House Roll call Yeas-71 Nays-36 (House Journal-page 38) 05/11/11Senate Conference report received and adopted (Senate Journal-page 35) 05/11/11Senate Roll call Ayes-26 Nays-16 (Senate Journal-page 35) 05/11/11Senate Ordered enrolled for ratification (Senate Journal-page 47) 05/17/11 Ratified R 54 05/18/11 Signed By Governor
Source: http://www.scstatehouse.gov/billsearch.php?billnumbers=3003&session=0&summary=B 3/29/2012 South Carolina Legislature Online - Bill Search by Bill Number
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APPENDIX C -- REMARKS OF SENATOR MCCONNELL ON CONFERENCE COMMITTEE REPORT
I will try to give you the history of what happened with this Voter ID Bill -- where we went, how we ended up in conference, what was done before we got to conference, what we got out of conference, what the Senate has done and where we are. For those of you who didn't want this Bill, some of the things the House refused to take may have well played into your hands. On the other hand, those of us who wanted the Bill are getting something out of it. Senator LAND, one of the things y'all were very opposed to from the start after it left the Senate – I went over to the Speaker of the House to tell him of our concerns. I told him absolutely and unequivocally, if they sent us a Bill that had that absentee precinct eliminated, the Bill was in mortal trouble. I said, "Please do not put that in this Bill." To their credit, they didn't put that back in and took that out. None of this limitation on absentee voting precinct is in the Bill. However, let me tell you what they did do. I'm going to lay all the cards out, because I have gotten beaten up. Senator CAMPSEN got beaten up. Senator SCOTT got beaten up. Here is what happened and how we approached conference. The House kept the Bill for something like five to six weeks. We didn't hear any more communication but communicated back to the Speaker we needed something on early voting in the Bill -- that provision we needed for early voting in the Bill. I said, if you don't want to go to a day, put zero in it. The Speaker said, "We'll go back and talk to my caucus." He did. Apparently, they were not persuaded. So, let me stop and say that we couldn't get that early voting provision in here; but, we have done the best we could do to preserve the Senate position. We have taken the Senate Bill and have put early voting in it and sent it over to the House. We will do our best to keep heat on that part, and, I think, it passed the Senate unanimously. Here is what I want -- particularly the Democratic members to hear what happened -- to thank you for your nonconcurrence vote, because you kept something very bad from happening to the State with this Bill. Those of you who stampeded to concur -- I want you to hear this, because I want you to see what you almost inflicted on this State and would have been blamed for back home. After the Bill went back to the House, there was apparently a media campaign. I suspect it had to have been coordinated with our state party. In either case, the propaganda pumps began Monday with the language to vote for the clean Voter ID Bill -- vote to concur with the clean Bill. Our state party put out an email publication to call us to vote for a clean Bill. As you know, then the propaganda pumps at the House of Representatives also began spitting forth their jar- gon, which was that they had provided a clean Bill. We didn't have very long to look at it. But what we were able to see in the Bill, when I got Senator CAMPSEN and staff, Ms. Anderson, and others to look at it to see what was in here, we found there had been language inserted in the Bill that is not clean. I'm going to go over that with you, because we had to argue -- and I want to tell you Sen- ator SCOTT did an excellent job of trying to sell it. He just didn't have takers. I don't want any- body on this side not to think that he didn't speak up and he didn't forcefully try to nail the points. He argued and helped in improving other parts of the Bill on which we could improve, but this campaign on this so-called "clean Bill" that the House of Representatives had passed was so bad and it was orchestrated. Senator CAMPSEN and I had to appear before our county convention
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and get up and explain why we voted to nonconcur. Now, in retrospect, this is the second time that two major pieces of legislation in this Senate have almost gotten stampeded by either emails or blogs or whatever. We almost made the same mistake with the Immigration Bill; we were warned was un- constitutional. If we hadn't nonconcurred, we wouldn't have had a good illegal Immigration Bill. Now, we are faced with a similar thing. Let me tell you -- all of you who voted to nonconcur -- what you stopped. In the House Bill, they became concerned as they were writing this. Senator SCOTT and Senator CAMPSEN, if I get this wrong, please correct me. They were concerned that the requirement of a birth certificate would amount to a poll tax. For that, they went in and put in the following language. Then, I want to tell you what this language did, Senator RANKIN, so you can go back and tell your party chairman what would have occurred if you had not voted the way you voted. "For the purposes of meeting requirements of this Item 2, the Department of Motor Vehicles may receive and shall accept, no discretion, from the Bureau of Vital Statistics, Department of Health and Environmental Control, suitable information verifying the applicant's name and date of birth." What they did was repeal the requirement "in South Carolina for South Carolina ID that you had to have a birth certificate and a picture ID". What good is a South Caro- lina ID if you don't have to prove the birth and the picture to match the face? They put it in. They put it in as an alternative to requiring a birth certificate to get a South Carolina ID. So, where is the clean House Bill? Where is the clean Bill? It was in two places. When we checked with DHEC, they said what? "The birth date and notify the parents?" You open South Carolina wide up. If you are worried about fraud, you have opened the grand doors to fraud, to the identity thieves and illegal immigrants or anyone else who could go in with two pieces of information without a birth certificate and get a South Carolina ID and access benefits and everything else. Why? Because we were to give the stamp of approval to the House version. I think if any member of the Senate has read this Bill and seen that language, no one would have voted for it. It had occurred. They put it in there under the South Carolina ID, then went back and repeated the mistake again -- and said on the State Registrar -- and goes through the same thing again -- then says shall accept, giving DMV no discretion. They had to accept from DHEC. I will tell you, Senator CAMPSEN and I had our state party attempt to make it appear that we were not loyal Republicans -- that we were not looking out for our side of the question, because we voted to nonconcur along with another group of you. I saw the press release that said only 15 of us were true Republicans and that the other group of us who voted to nonconcur were not. I wanted y'all to have the backdrop to what was going on before we ever approached the conference table; but, now, let me tell you about this so-called clean Bill of theirs and what else they did. They added in here a section. I think Senator SCOTT brought this to my attention -- that they were involved in poll-watcher amendments. This was supposed to be a clean Voter ID Bill and there's a new section of the law and I won't even read it. I will just tell you what it effec- tually did. The poll-watcher couldn't stand behind the table -- couldn't stand to the side of the person and look -- had to sit directly behind them. How can you see when you've got to sit di- rectly behind somebody? When we argued the point, they said, "Oh, no." I said, "No." I'm quot- ing it to you. I thought you said this was a clean Bill. What did that have to do with Voter ID? It didn't have a thing to do with it, but it is so-called out on the blogs and with the emails that it was a clean Voter ID Bill. Then, in their zeal to write their Bill -- they had certain portions of the Bill going into ef- fect before Section 5 review. The problem was the sections that would go in effect on Section 5 review aren't subject to Section 5 review. If they never got approved, how could they ever go in-
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to effect? I hope all of you who voted to concur listen to this, so it is a good lesson for future complex legislation not to stampede it in and to look at it, because another section of the Bill made everything go into effect on an effective date which would have been before we got the approval of the Justice Department. Now, what items would the House not accept of our version? They would not accept our government ID section. We tried and tried. They would not accept that. They would not accept our early voting. They accepted and we got them to agree to all of our language on early voting. This is something Senator CAMPSEN worked very hard on, which was the language that set up the residency issues that would have to be judged on the question of an illegal ballot. The House agreed to put that into the Bill. We had to pick up -- I believe it was language from our section of the Bill on severability. We straightened out the language. The House picked up most of our lan- guage on the written procedures at the polls – we made sure that people's rights on a challenged ballot were protected, and we did everything we could. We have the outreach in the Bill, the ed- ucation programs. We had to accept House language on the South Carolina ID, because we were wrong on seven years. They were right on the five-year time period. We picked up their interests because those interested told us they wanted early voting. We put their provisions in the Bill and sent them back, so the people of South Carolina could have an opportunity to have early voting. All the other stuff on Voter ID is in here. I know some of you are not going to vote for it. I understand that. We have debated this thing and debated it. We have tried, in good faith, to extend the olive branch. We went forward. We didn't object at all to early voting. We have tried to push our case forward; but, particularly to the Republicans that are out there who look at this group of us who voted to nonconcur to try to straighten this Bill up, I wanted to make sure that the story was told, because we were subject- ed, in my opinion, to a propaganda campaign aimed at trying to make us look weak-kneed and all of that when most legislation goes through the process. It is just an unhealthy environment when you are trying to battle the House to have somebody come in and undermine your position. That is what was happening. We should have been able to go to that table with a more united front and said, 'This is what our Senate position is." They knew some of the weaknesses we had on this. We did the best we could under the circumstances. Anyway, when we face off on reap- portionment, it will be easier. I'm wrapping up. Again, I want to say I know the Bill didn't come out like you wanted it, but I wanted to make sure you were aware that Senator SCOTT did an excellent job articulating his position. He was very knowledgeable and very firm about it. He was very up-front. He wouldn't sign the report. I respect that, and he warned them of some things they put in this Bill that may come back to haunt them that should have been put in from the Senate side, but we did the best we could do. Senator CAMPSEN, I want to thank you. We worked very hard on this Bill. Both of you were very active participants in the debate with the House members. I want to thank you for hanging in there, despite the political roughness on this to get a good Bill. Had we not nonconcurred and gone to conference, we would have ended up with a flawed law. Instead of making sure we don't have fraud in this State, it would have opened it to fraud, because we would have removed a requirement for a birth certificate and a photo ID on a South Carolina ID. I know not one of you intended it to happen, but it should be a good lesson to you about having cheerleaders from the House and outside on the street telling you to blindly vote for a Bill and not find out what is in that Bill. It was a terrible provision along with the poll watchers. The rec- ord is absolutely clear. It was not a clean Voter ID Bill. It is their language -- their amendment. It was never in the Senate Bill and it was their mistake. Thank you for helping us to clean that up.
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Source: Senate Journal 11 May 2012, pp. 32-3 APPENDIX D DMV Paperwork
Proof of Residency Applicants MUST provide one of the following and all documents must show name and S.C. address of applicant, except as noted:
• School Records - Records must be from S.C. school (current or prior school year). - Student ID (address not required). - Report Card. - Letter or contract from Home Schooling Association. - Official letter from individual’s school or school district on school or district letter- head. - Certified transcript. - Diploma from S.C. school (child has graduated within the last school year - address not required).
• Out-of-state or in-state tuition bill with applicant’s S.C. physical address. • Current employment records (no more than 90 days old). Records must be from S.C. employer or have S.C. address for applicant on records from an out of state employer. - Letter on employer letterhead. - Payroll stub showing S.C. withholdings.
• Current utility bill no more than 90 days old. A utility bill is specific to services for your residence. Examples are electric, water, sewage, cable, and land line phone lines. Cell phone and satellite bills are not acceptable. • S.C. Medicaid card • Parolee Card or letter from parole officer (no more than 90 days old). • Home mortgage monthly statement (no more than 90 days old), or deed. • Current S.C. Weapon’s Permit • County Tax Bill for home (not vehicle) or Property Tax Receipt for home, not vehicle (current or preceding calendar year) • State or Federal Tax records. - Income tax returns for current or prior year are acceptable including electronic tax file or W2. - If applicant listed as dependent on SC tax return that is presented as proof of resi- dency, proof applies to dependent also. 16
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• Current Military Orders detailing active duty assignment in S.C. • Current letter from Military Base with the commander verifying duty station in S.C. • S.C. bank statement or signed letter (must be on bank letterhead) showing name of appli- cant and S.C. physical address (no more than 90 days old). • Social security check showing name and S.C. physical address of applicant (no more than 90 days old). • Insurance documentation: - Current automobile or life insurance bill (no more than 90 days old – cards or poli- cies are not accepted). - Current homeowners insurance policy or bill (no more than 90 days old). - Current health insurance statement (no more than 90 days old – cards or policies are not accepted).
• Letter from director of S.C. social welfare institution (homeless shelter, battered women’s shelter, halfway house, group home, orphanage, etc.) stating applicant is resident of facil- ity (no more than 90 days old). • U.S. Postal Service change of address confirmation letter or postmarked U.S. mail with forwarding address label.
Proof of U.S. Citizenship/Proof of Identity and Date of Birth - Applicants MUST provide one of the following: • Birth Certificate with birth/file number and registrar’s signature issued by the county or Bureau of Vital Statistics. • Birth Certificate from U.S. Territory (Must be translated if not in English) - Puerto Rico, Guam, U.S. Virgin Islands and U.S. Samoa. • Delayed birth certificate – If birth certificate is not issued at time of birth, customer can apply for birth certificate from Bureau of Vital Statistics. • Current U.S. Passport or U.S. Passport that has not been expired more than 10 years. • Current U.S. Passport Card • Certificate of Naturalization -- USCIS Form (N-550 or N-570). • U.S. government issued Consular Report of Birth Abroad. • Certificate of Citizenship (N-560 or N-561).
NOTE: If the applicant’s birth certificate shows that he was not born in the United States, the applicant must ALSO provide an additional document from the above list proving U.S. citizenship.
1IMPORTANT: If name has changed since birth, applicant must present all legal documents (i.e., adoption records, marriage certificate or license issued by state/county records office,
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certificate of naturalization, and court ordered name change) supporting all name changes from the name which appears on the birth certificate or proof of identity to the present.
Proof of Social Security Number (SSN)- Applicants MUST provide one of the following and all documents must show SSN:
• Social Security Card. • SSA-1099 - “Survivor Benefit Form”. • U.S. Military Photo ID Card when SSN is present on card (active, retired or reservist mil- itary status DOD, ID, DD-214). • Current military dependent I.D. card. • U.S. Uniform Services Identification and Privilege Card (DD 1173) must include photo- graph. • Letter from Social Security Administration (no more than 90 days old).* • Medicare letter from Social Security Administration* • Medicare Card* • Payroll Stub must include employer’s name and applicant’s name.* • W-2 Form must include employer’s name, address, and applicant’s name.* *NOTE – DMV is required to perform online verification. Source: MV-93, Obtained at http://www.scdmvonline.com/dmvnew/default.aspx?n=accepted_forms_of_identification [Accessed 25 May 2012]
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Case 1:12-cv-00203-CKK-BMK-JDB Document 157-4 Filed 08/08/12 Page 1 of 31 Exhibit D Case 1:12-cv-00203-CKK-BMK-JDB Document 157-4 Filed 08/08/12 Page 2 of 31
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
------) ) STATE OF SOUTH CAROLINA ) ) Plaintiff, ) CIVIL ACTION NO: ) v. ) 1:12-CV-203-CKK-BMK-JDB ) THE UNITED STATES OF AMERICA ) (Three Judge Court) And ERIC H. HOLDER, JR. in his ) Official capacity as Attorney General ) Of the United States, ) ) Defendants, ) ) And ) ) JAMES DUBOIS, et al., ) ) Defendant-Interveners. ) ) ------)
SUPPLEMENTAL DECLARATION OF THEODORE S. ARRINGTON, PH.D.
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1. The purpose of this supplemental declaration is to present my analysis of transcripts of
depositions, and transcripts of audio recordings of Senate Judiciary Sub-Committee hearings,
Judiciary Committee and Senate Floor debates that were not available to me as of the deadline
for submission of my initial declaration on 19 June 2012. There is nothing in these materials that
causes me to change my opinion that the photo ID law (R54) was enacted with the purpose or
intent to discriminate against Minority voters. This additional evidence reinforces some points in
that initial declaration and presents some new information.
2. I now have studied additional depositions from legislators who supported the photo ID
law: Lt. Governor Glenn McConnell; Senator George F. “Chip” Campsen III, the chair of the sub-committee of the Judiciary Committee that passed the photo ID law;1 and Senator John M.
Knotts, who was also on the Judiciary committee during the photo ID debate.
3. I also have studied the deposition of a staff member of supporters of the photo ID law:
Mr. Wesley Donehue, with the Senate Republican Caucus. In addition, I have studied deposi- tions from four individuals with in-depth knowledge of the application of election law and pro- cedures in South Carolina: Ms. Marci Andino, Executive Director of the State Election Commis- sion (SEC); Joseph Debney, Director of the Charleston County Election Commission; Ms. Mari- lyn Bowers, a member of the South Carolina State Election Commission (SEC); and Dr. Patricia
Calkins, who has extensive experience as a precinct election official and is now chair of the York
County Democratic Party.
1 I rely on both Sen. Campsen’s 18 June as well as his 18 July deposition. His 18 June deposi- tion was not available to me in time to incorporate into my initial 19 June declaration.
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4. The transcripts of audio recordings of the Senate floor debate, Senate Judiciary Commit-
tee and the sub-committees that held hearings and considered the photo ID bills in the 2009-10 and 2011-12 legislative sessions are not complete. And I have no records of the House hearings.
I rely on two recently produced sets of transcripts from the Senate produced by Intervenors and
South Carolina.
Nature of the Registration Certificate
5. Paragraphs 80 and 91 of my initial declaration point out that a potential impersonator at
the polls would have to be of approximately the same age as the voter he or she is impersonating
because the voter’s date of birth is given in the poll book. Now that I have physically examined a
voter registration certificate, I can testify that it also has this date as well as the race and sex of
the voter. So all of this information would have to match the potential impersonator as well. At
one time the registration certificate also contained the voter’s hair and eye color, height, and
weight (Bowers, p. 29). So the state has in recent years moved away from having specific infor-
mation to identify voters on the registration certificate.
Impersonation Fraud and Public Confidence
6. From the evidence presented in my initial declaration and the additional evidence that I have now reviewed, I conclude that both the claim of preventing impersonation vote fraud and the claim of increasing public confidence in the election process are pretextual. There is simply
no credible evidence of impersonation vote fraud in South Carolina, and the Legislators who
were proponents of the law knew that at the time of enactment. Furthermore, they had no evi- dence of a lack of confidence in the election process, and did not attempt to find such evidence,
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although surveys showing the high level of public confidence in the South Carolina election pro- cess were available from the SEC. Thus, one must look elsewhere for the basis of their decision.
This basis is found in partisan pressure to take an action that they knew would have a dispropor- tionate negative impact on Minority voters.
7. Senator Campsen testified that he knew of no evidence of impersonation voter fraud in
South Carolina (pp. 30, 64, 93, 114-115). When asked about the testimony about voter fraud of
Rusty DePass and Gay Suber at the sub-committee hearings and his failure to follow up on their claims, he dismissed their allegations, testifying that they are “older gentlemen, they are talking about things that happened many years ago” (p. 301). Senator Campsen understands that many of the stories about voter fraud involve registration fraud, sometimes facilitated with the complicity of election officials; he understands that the photo ID law would not detect these actions (pp.
283-90, 302). Still, he alleges that even registration fraud would be deterred by the photo ID law
(pp. 288-89). Regardless, he claims that such evidence is not necessary given the opinion of the
Supreme Court in Crawford v. Marion County Election Bd., 553 U.S. 181 (2008) (Campsen, p.
66). He testified that the purpose of the bill is to increase confidence in the election process, not necessarily to prevent impersonation fraud (pp. 64, 103-04). Yet he did not know of any study of voter confidence in the election process, and did not inquire whether the SEC (South Carolina
Election Commission) might have such a study (p. 181). He claims that local election officials and the SEC would be the experts on impersonation fraud and a lack of public confidence in the process, but admits that he knew that SCARE (the association of South Carolina election offi- cials) was at first neutral and then opposed to the photo ID law (pp. 159-60) and that the SEC was uncommitted.
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8. Senator Knotts testified that he knows of no examples of impersonation fraud, or counter-
feit registration certificates, or stolen certificates in South Carolina (pp. 17-18). His understand- ing of voter impersonation is accurate and worth quoting: “No sir, it’s [impersonating a voter] not like robbing a bank, you know, you get something out of the bank, the only thing you get to do [if you impersonate a voter] is vote for the best of the two or least of the two evils, so it’s not like you get rewarded for going and voting. . . You’ve got to really want to be elected to go out here and get people to go to jail – I just don’t believe, with all the crime opportunities out there, that voter fraud is the top of the list to go out there and commit a crime, you know. These people that vote are usually good, honest, hard working, decent people that want to be a part of the pro- cess and make government work; they’re not a bunch of criminals out there trying to – I mean, if they were going to get something at the polls and walk away with something it would be a dif- ferent story, I guess, but I’ve never – I’ve never encountered it” (pp. 54-55).
9. Mr. Donehue has no knowledge of impersonation fraud in South Carolina (p. 108), in- cluding no knowledge of any kind of fraud involving college students (p. 55). In testifying about his message to Twitter on allegedly fraudulent voting by college students, he admits that he may have been wrong about residency and the ability of students to vote under the new law (pp. 128-
29). Mr. Donehue testifies that although he is a specialist in public opinion polling, he was not asked to, and did not do, any polling on impersonation voter fraud or confidence in the election process (pp. 135-36). He was not aware of any polling on public confidence by the SEC or any- one else (p. 136).
10. Mr. Debney has never encountered impersonation election fraud (p. 46). For him, elec- tion security means making sure the voting machines are accurate, and training on ballot security
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deals mainly with the machines, nothing on impersonation fraud (pp. 44-5). He looked into the post-enactment charge that 953 deceased individuals had their votes cast in recent South Caroli- na elections and found that none of those listed from Charleston county were valid examples of impersonation fraud (p. 132). Likewise, Dr. Calkins has never encountered impersonation fraud.
(p. 42). She outlines what one would have to do to impersonate a voter and how difficult it would be (pp. 22-23, 43-46). Her analysis of the lack of incentive to impersonate versus the po- tential penalty (pp. 48-49) is similar to that outlined by Senator Knotts (above) and given in my initial declaration (at ¶ 28).
11. Ms. Bowers provides the only example of alleged impersonation voter fraud in her long experience in election administration. An unknown women told Ms. Bowers that she gave her mother her own registration certificate and asked her mother to go vote with it. Ms. Bowers did not follow up on this admission, does not know who this woman was, and has no idea whether the woman or her mother voted in that election (pp. 20, 24-25, 38-39). Ms. Bowers had previous- ly explained that “most fraud is committed through mail ballots” (pp. 80-3). Nevertheless, she cites her one example of possible impersonation fraud, as a reason that the law is needed (p. 97).
Troubling Problems with Implementation
12. There is no common understanding, no standard, no agreement on how to implement the photo ID law. Neither the legislative proponents of the photo ID law, their staff, or county or state level election administrators have any consistent idea of how to interpret the key phrases in the legislation: “reasonable impediment,” “valid and current,” and “shall find that the provisional ballot is valid.” Nor do they know what kinds of military ID are appropriate for voting under the photo ID law. Nor do they know how the affidavit and provisional ballot procedures for those
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who do not have a photo ID will be handled. This confusion is troubling because it would allow
local election officials boundless discretion to interpret the new law in a discriminatory fashion, which Federal courts have determined to be a problem in South Carolina in the past (see my ini- tial declaration ¶ 83-6).
13. Senator Campsen’s position on the meaning of “reasonable impediment” (pp. 143-146),
adds to the confusion over the law evident in the other depositions. He cites the “reasonable man
standard” meaning that the term has to be interpreted in terms of what election officials think is
reasonable, not what the voter may think is reasonable. He testified that the county EC (election
commission, board of canvassers, etc.) would have some discretion with guidance from the
South Carolina State Election Commission (SEC). The deposition of Ms. Andino, Executive Di-
rector of the SEC, cited in my initial declaration, indicates that the SEC has little authority to
control and direct the county ECs much less the poll managers even when the SEC understands
the standard.
14. Like other witnesses, Senator Knotts cannot clearly define “reasonable impediment.” He
testified, however, that the person who has no photo ID when they come to vote and completes
the affidavit and votes a provisional ballot would have to appear at the county EC office in order
to have their vote counted (pp. 39-40). But after an objection from counsel for South Carolina
and pressed to explain this extraordinary effort that would be required of voters who lack a photo
ID, he says he is unsure about the issue (p. 40). He appears to not be concerned or attentive to the photo ID issue as he stated, it is not his “bag” (p. 13).
15. Mr. Debney’s testimony suggests confusion among county level election officials about the photo ID law. He testified that he does not know what “reasonable impediment” means and
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would refer a voter who wanted to know to a lawyer or to the legislators who wrote the law (pp.
82-83). He has no understanding of when a county board will have grounds to believe that an affidavit is false, and has no plans to provide notaries in each polling place or to provide form affidavits (pp. 83-84). Similarly, Dr. Calkins also testifies that she has no idea how to interpret reasonable impediment (pp. 77-78).
16. There is also some question about how to interpret military ID and the term current and valid when deciding what ID could be used to vote. Senator Knotts, for example, testified that military ID as specified in the law means only the ID of active duty members of the military, not dependents’ or contractors’ ID (p. 50-51). Mr. Debney testified that he does not know anything about military ID, whether they have expiration dates, what they look like, what kinds would be acceptable under the photo ID law, or whether they contain the current address of the voter (pp.
137-38). He does not know how to interpret “current and valid” in the photo ID law either (p.
138). Like Mr. Debney, Dr. Calkins does not know what a military ID looks like or who has one, nor does she know what “current and valid” means under the photo ID law (pp. 90-91).
17. There are uncertainties in the handling of provisional ballots and affidavits. Mr. Debney testified that there is no appeal from a poll manager who refuses to allow a voter to use a provi- sional ballot (p. 53). The EC decides to count or not count the provisional ballot on the basis of evidence on the envelope, not generally on testimony (pp. 38-39). According to him the EC has total discretion to count or not count a provisional ballot (pp. 40, 84-85). Ms. Bowers also notes that the county ECs still have some independent authority: “. . . the county boards do have a cer- tain level of ability to do things, as long as they are within the law, their way, but over the past few years particularly, the state has tried to make more policies in things and provide those to the
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counties so that things are done more uniformly in the 46 counties instead of being done differ-
ently” (pp. 87). Notice the word “provide” in her testimony, not “require.”
18. Ms. Bowers notes that the county EC searches the registration records and if the voter’s
registration is found, the provisional ballot is counted. If the registration cannot be found, it is
not counted (p. 36). It is not clear from this practice how the provisional ballots of those who
lack photo ID would be treated. She testified that the person who votes a provisional ballot be-
cause he or she does not have a valid ID under the benchmark law has to go to the county EC
office at or before the canvass to present an ID in order for the vote to be counted, (pp. 33-34,
91-92).
19. These deponents’ testimony also highlights problems that could arise in implementing the
affidavit provisions for those voters who lack a photo ID. For example, Senator Campsen testi-
fied that affidavits for those without a photo ID would have to be notarized. He testified that the
legislative delegations have control over authorizing notaries, they could have all the poll man-
agers become notaries if that were needed, and legislative delegation meetings can be held any
time (pp. 149-50, see S.C. Code §§ 26-1-20 and 26-1-25). It would not be as simple as he makes
it sound. The South Carolina provisions for notaries (see S.C. Code § 26-1-95) also provides that prospective notaries must file in the office of the Secretary of State, be enrolled by the County
Clerk, pay a fee, and obtain an official seal. It is unclear how a notary would be able to notarize the signature of a person who has no photo ID. Notaries who falsely attest to a signature are lia- ble to legal penalties.
20. South Carolina law seems to require that an affidavit be notarized: “An affidavit is a vol- untary ex parte statement reduced to writing and sworn to or affirmed before some person legally
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authorized to administer an oath or affirmation.” State v. McKnight, 352 S.E.2d 471, 472-3 (S.C.
1987). But Chris Whitmire, Director of Public Information and Training for the SEC, testified that providing notaries in the polling places has never been given serious consideration (deposi- tion 8 June 2012, p. 164).
21. As an example of how even long settled law can be misinterpreted at the county level in
South Carolina, Mr. Debney testified that a person must show a photo ID when they register to vote in a county EC office. And, if they register by mail, he testified that they need to show a photo ID when they vote the first time (pp. 22-23, 127). This appears to be an incorrect statement of federal law. According to The Help America Vote Act, 42 U.S.C. § 15483(b) (first-time regis- trants by mail must present “a current and valid photo identification” or “a copy of a current utility bill, bank statement, government check, paycheck, or other government document that shows the name and address of the voter.”). Nor is having a photo ID a registration requirement under South Carolina law (See S.C. Code § 7-5-120).
22. The lack of control by the SEC over county officials is illustrated by the fact that 82 county EC officials are not certified as required by law (Andino deposition, p. 292). This brings into question the ability of the SEC to provide uniform implementation of the photo ID law and the possibility of racial discrimination in its application (see my initial declaration ¶¶ 83-6).
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The Legislative Process Was Irregular and Excluded Effective Participation by Minority Legislators
23. I have identified two aspects of the legislative process for the photo ID law that were ir- regular in the sense of the Arlington Heights criteria. The strong norm and tradition of the Senate is consensus rather than strict majority rule as in the House. (See Lt. Governor McConnell’s dis- cussion of Senate rules at pp. 219-33, 239-45, 274, & 286-90; Campsen, pp. 50-51; and Donehue,
p.124.) Under Senate Rule 33B (see Appendix A), however, the Chair of the Senate Rules
Committee backed by a majority of that committee can choose to move a bill by special order by
majority vote, allowing it to be brought to the floor for debate if a simple majority of the Sena-
tors present and voting wish to consider it. Without the extraordinary use of this rule, it requires
a two-thirds vote of the Senate to bring a bill to the floor for debate and possible passage, also
under Rule 33. As the rules are set up, the Senate cannot use this procedure with very many bills.
(Lt. Governor McConnell discusses the rule at pp. 286-88.) In 2010, Rule 33B was used to bring
the photo ID bill to the floor after the proponents of the bill had once failed to gain the necessary
two-thirds vote, while in 2011 the Rule was used after they twice failed to gain a two-thirds vote.
This parliamentary maneuver was controversial, and objected to by some Senators. Perhaps this
is because the move is rare. But Lt. Governor McConnell testifies that it is not unusual, and that
some Senators just don’t know the rules (p. 287). Senator Knotts agrees (pp.41-43). But this rule
certainly is a violation of Senate norms of consensus and therefore irregular.
24. The second irregularity is the way in which the conference committee was conducted in
2010. The purpose of a conference committee is to work out differences between the two houses on legislation when both houses have passed different versions of the same bill. Conference committees consist of three Senators and three Representatives. A meeting was scheduled in
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2010 to work out a compromise on the photo ID bills, and the House representatives presented their position. The Senators were scheduled to present the Senate side and start the negotiations
later that day. But while the Senators were present on the floor of the Senate debating the budget
conference report, two of the three House representatives (both White Republicans) signed a
conference report, terminated discussions, and essentially ended negotiations on their terms (See
transcripts provided by South Carolina, for Senate floor debate on 15 June 2010, Bates
SC_00161879-82). Lt Governor McConnell says the House was “playing difficult” (p. 294).
Senator Knotts also complains about how the House leadership played the inter-chamber game
with less willingness to compromise than when he was there: “We’ve got a new breed in the
House” (pp. 61-62). While Senator Campsen testifies that negotiations could have continued (pp.
309-312), the fact is that the two White Republican Senators then also signed the conference re-
port proffered by the House representatives and that conference report went to the full House and
the full Senate. Without an actual count of the number of times conferees ended a conference
without actually conferring, one cannot tell whether the practice is rare. Clearly, it is irregular,
since it violates the entire purpose of having a conference, and shows a lack of respect for the other chamber, which is a legislative norm in any bicameral legislature.
25. Conference committee members Senator Malloy and Representative Mitchell (both Black
Democrats) did not agree to the conference report, which reflected almost totally the position of
the House (Senate floor debate on 15 June 2010, SC_00161898). It was debated at length in the
Senate. The bill was filibustered during the short legislative session in June that is supposed to be
devoted mostly the budget and considering the Governor’s vetoes. Several Black senators indi-
cated that they now regretted agreeing to the compromise worked out in Lt. Governor (then Sen-
ator) McConnell’s office, since the conference contained the photo ID provisions they opposed
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and contained none of the early voting and other provisions they favored (see Senator Scott’s remarks on the floor of the Senate on 15 June 2010, SC_00161919-21 and SC_00162327).
26. Senator Hutto, a White Democrat, led the filibuster to kill the conference report on the photo ID bill in 2010. The filibuster included ample evidence that both White and Black Demo- crats were opposed to a photo ID requirement for voting. They were not just objecting to the ab- sence of a generous early voting provision in the conference report as Senator Campsen testified
(pp. 307-08). For examples of their specific objection to the photo ID requirement see transcript of Senate floor debate on 15-16 June 2010 ( SC_00161961, SC_00162094, SC_00162341-2, and
SC_00162409).
27. During the filibuster various attempts were made to bring the conference report to a vote, but these efforts failed, in part because several Republican Senators refused to vote to make Sen- ator Hutto “sit down.” As Senator Knotts makes clear, this was because of the traditions of the
Senate, not because these Republicans opposed the photo ID law. These Republican Senators would later find party activists strongly critical of their action. (See, for example, Senator
Knotts’ deposition, pp. 33-35.) Eventually the time set for adjournment sine die arrived and the photo ID bill died for lack of Senate action.
28. These irregularities had the effect of excluding Black representatives from meaningful participation in the process. In both legislative sessions the Speaker and majority caucus in the
House were in the position to ignore the Black representatives (Donehue, p. 124). That is, the
House version of the photo ID bill simply reflected the position of the Speaker and the majority caucus. Minority Senators (in both partisan and racial senses) worked with the White Republican senators to provide at least some provisions in the bill that they could support, given that the Re-
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publicans had the votes to pass a photo ID bill without them. But, in both sessions the conference
committee stripped out the provisions favored by Black Senators, leaving only the provisions
opposed by Black Senators and Representatives. In 2010 the minority Senators (Black and White
Democrats) successfully filibustered the conference committee report because it came to the
Senate at the end of the session in June. In the 2011 session, however, attempts to filibuster were
not successful, and the conference committee report passed the Senate without the support of any
Black or White Democrats (see Table 4 of my initial declaration).
29. It is important to understand why, during the 2010 legislative session, Black Senators
worked with Republicans on a consensus photo ID bill they opposed and would ultimate vote
against. The Senate has unlimited debate rules, and this controversial bill did not seem to be go-
ing anywhere in 2010. The opponents of a photo ID requirement had prepared over 1,000
amendments to present, effectively filibustering the bill. The leadership of the Senate wished to have an opportunity to curb what were seen as excesses in the House version of the bill, but that would require the Senate to pass their version so that the two houses could go to conference.
Otherwise the senators who favored a photo ID requirement for voting would have no choice but to concur in the bill passed by the House that would not include early voting. This would be the worst possible outcome for Black and White Democratic senators as well. Lt. Governor
McConnell (then Senate President pro tempore) convened a meeting of senators in his office to work out a compromise that would be acceptable to almost all Senators for the purpose of pass- ing something so they could go to conference. This meeting included Black and White Demo- cratic Senators. This agreement included a photo ID requirement for voting and an early voting provision.
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30. The McConnell-brokered agreement of the Black and White Democratic Senators, how-
ever, does not indicate their acceptance of a photo ID requirement for voting, as the debate on
the conference report indicates. It should be seen, rather, in terms of the collegiality traditions of
the Senate. Minority senators can go along with a compromise to move the process along, and
still object to the final bill. Failure to reciprocate in this fashion would effectively exclude them from later negotiations on this and other pieces of legislation. It is this compromise worked out in Senator McConnell’s office that is proudly referred to by various Senators as a near unani- mous Senate agreement on a photo ID requirement. That is not an accurate characterization. The
Senate Journal for 3 February 2010 gives the vote on the third reading of the Senate version of the photo ID bill (which included early voting) and lists six Black Democrats (Senators Jackson,
Anderson, Ford, Nicholson, Matthews, and Williams) and one White Democrat (Senator
Leventis) as voting against passage. Certainly the inclusion of early voting in the photo ID bill was favored in the Senate unanimously, or nearly so, in both sessions. But all Black and White
Democrats voted against the Senate versions of the bill even though they contained early voting provisions in the 2011-12 Session (see my initial declaration Table 4).
31. Without an actual count of the number of times these maneuvers are used in each legisla- tive session, I can’t know whether the use of the “special order by majority vote” and conferees ending a conference without actually conferring are rare. Clearly, both of these actions are irreg- ular because they contravene established norms of behavior, even if they are within the rules.
Irregular does not have to mean unique.
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What the Legislators Knew or Should Have Known
32. The transcripts and depositions I have studied since the submission of my initial declara-
tion provide a better view of the hearings and debates in the Senate and therefore a better under-
standing of what the legislature knew or should have known when the photo ID law was passed.
33. During consideration of the photo ID bill during the 2009-10 legislative session, Senator
Campsen (and all other senators and at least those representatives on the House Judiciary Com-
mittee) received what I have called the “Andino report” in my initial declaration. This report pre-
sented statistics on the number of registered voters who lack a DMV-issued ID by race, sex, age,
and county, and the numbers are very similar to those in Dr. Charles Stewart’s initial declaration
in this case. Senator Campsen was surprised by the large number of non-matches, and concerned
about the larger impact the requirement for a photo ID would have on Minority voters (pp. 95-
102). He testified that any legislator should be concerned about this racial difference, and this is
part of the reason for the various provisions in the bill to mitigate the impact (pp. 100-01). But in
the second deposition (pp. 251-52) he says the number one reason for the educational require-
ments is to facilitate preclearance by the courts, and protecting the ability of people to vote is
secondary. He also understood that the NAACP, ACLU, League of Women Voters, and a group
representing disabled people were all opposed to the law, and that no organization, except the
Republican Party, spoke in favor of the law in the hearings (pp. 160-61). Other witnesses repre-
senting organized publics either testified exclusively about early voting, or opposed the photo ID
law.
34. Ms. Andino confirms in her second deposition that SCARE was opposed to a photo ID requirement (pp. 290, 305). The decision of the SEC to take no position on photo ID, but to favor
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early voting was made by her and her staff and then communicated to the members of the SEC,
and “everyone was in agreement” (p. 282).
35. Ms. Bowers, who now testifies that she personally favors a photo ID requirement for vot-
ing, has a somewhat different explanation for the opposition of SCARE to a photo ID require- ment. She testifies: “The issue with having to go to the voter registration office to get your photo
ID is what we as county officials based our opposition to photo ID on. Years back everybody that registered to vote came to our office to register to vote. We saw every person face-to-face.
That’s the only way you could register. Then came registration by mail and then came registering
at outreach agencies such as DMV. And pretty much if ten percent of people register in person at
a voter registration office, I would be surprised. So the average voter we never see. So they need
to have an option of going to DMV or somewhere else to get that photo ID, not having to come
to our office because we don’t see them” (p. 48, also see pp. 66 and 112). In other words, elec- tion officials are unwilling to see registration return to the narrow confines of the past where reg- istration required a visit downtown at the courthouse during banker’s hours. Whatever the basis of opposition by SCARE, the position of the organization has consistently been that photo ID is not necessary to prevent impersonation fraud or to provide public confidence in the election pro- cess. Neither SCARE not the SEC has indicated a need for this legislation. Ms. Bowers does not know what documents the DMV requires for issuing ID, and she implies, erroneously, that the
DMV would be able to offer transportation to voters to obtain picture ID for voting (pp. 52-53).
36. In explaining the position of SCARE, which was well known to the legislators, it is im- portant to note that as Mr. Debney testifies (pp. 112, 122-23), SCARE avoids taking an official position on pending legislation. However, they do provide a list of priorities for the General As-
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sembly (p. 15). That listing has never included photo ID, but has listed early voting according to
Mr. Debney’s testimony. He notes that some members of SCARE are opposed to photo ID,
which seems to be opposition beyond just reluctance to issue photo ID at EC offices as Ms.
Bowers testimony could be read to indicate.
37. The Senate hearings in a sub-committee of the Senate Judiciary Committee are them-
selves an indication of what the legislators knew or should have known, since hearings are in- tended for the purpose of informing the legislators and forming a reliable record for judicial in- terpretation of statutes. In the 2009 senate hearings the testifiers in favor of a photo ID require-
ment for voting were William “Rusty” Depass, former Chair of the SEC; Butch Bowers, also a
former Chair of the SEC and former attorney in the Department of Justice in the second Bush
Administration; Gay Suber, former Executive Director of the South Carolina Republican Party;
Katon Dawson, Chair of the S.C. Republican Party; and Jim Duffy, State Ballot Security Chair
for the S.C. Republican Party. As indicated above, Senator Campsen dismissed the testimony of
Mr. Depass and Mr. Suber with regard to examples of impersonation voter fraud. No others of-
fered any evidence of impersonation fraud or a lack of public confidence in the integrity of the election process. Marci Andino testified at the hearing that she was not aware of anyone imper- sonating a voter (see pp. 38-43 of the Intervener’s transcript of the Senate Judiciary sub- committee hearing of 26 March 2009). In other words, the testimony in favor of a photo ID re- quirement came from Republican Party officials or former officials or activists.
38. Opposed to a photo ID requirement were Mr. Brett Bursey, director of the South Carolina
Progressive Network, who introduced the study of voter fraud completed by the Brennan Center showing that impersonation fraud is extremely rare. Also testifying against the photo ID re-
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quirement were Mr. Kent Lesesne, representing the Association of Counties; Dr. John Ruoff, a
social scientist who frequently testifies in voting rights cases; Ms. Carol Fowler, Chair of the
South Carolina Democratic Party; Ms. Susan Breslin, Chair of the Charleston County Democrat-
ic Party; Ms. Joanne Daly, League of Women Voters; Mr. George Temple, Executive Chair of
the Charleston County Democratic Party; Ms. Alice Henderson, Vice President of the League of
Women Voters; Mr. John Kringle, Executive Director of Common Cause of South Carolina; and
Senator Laveness Rose, who is not on the Judiciary Committee. Testimony against a photo ID requirement came from Democratic Party representatives and activists, and groups that might be seen as allied with Democrats. But opposition also came from groups that have responsibility for administering the proposed law and the League, a non-partisan group that deals directly with voters.
39. Almost all of the testimony favored early voting. Ms. Daly requested that hearings be held on the bill in Charleston, Columbia, and Florence so the public could speak. This request came from the South Carolina League of Women Voters, American Association of Retired Per- sons, American Civil Liberties Union, Common Cause of South Carolina, the South Carolina
Appleseed Legal Justice Center, and the South Carolina Chapter of the National Association for the Advancement of Colored People. Senator Campsen rejected the idea of having hearings around the state (pp. 19-25 of the Intervener’s transcript of the Senate Judiciary sub-committee hearing of 26 March 2009). The number and limited range of testimony in the 2009 hearing indi- cates that there was very little public interest in the issue of photo ID at that time.
40. Marilyn Bowers, speaking for SCARE, supported early voting. She also pointed out the large number of voters who do not have DMW-issued ID, especially among the elderly. She
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suggests other forms of ID that might be acceptable, such as student ID, which would make the
requirements consistent with HAVA (see her testimony at pp. 1-8 of the sub-committee hearing
of 2 April 2009 from the Intervener’s transcript). She has changed her mind about some opinions
expressed at the hearing as reflected in her deposition. But she still advocates early voting and
the acceptance of college or university ID for voting.
41. In the subsequent session of the General Assembly, the same groups provided representa- tives who gave similar testimony with the addition of Ms. Victoria Middleton, of the American
Civil Liberties Union testifying against photo ID. Dr. Patricia Calkins also testified against a photo ID requirement. This time, however, Marci Andino, Executive Director of the SEC, testi- fied that county election officials are opposed to the photo ID requirement (pp. 28-32 of the In-
terveners transcript of the sub-committee hearing on 6 January 2011), and Kent Lesesne from the
Association of Counties testified that other county officials are also opposed (p. 28 of the same
hearing transcript). In this hearing the representative of the League of Women Voters, Carol Cato,
formally presented what I have called the “Andino report” in detail giving the figures on the reg-
istered voters who do not have a DMV-issued ID by race showing the greater impact of the law
on Minorities (p. 25-8 of the same hearing transcript). That report had previously been given to
all members of the Senate and at least to the members of the House Judiciary Committee. The
arguments against the photo ID requirement in the sub-committees are the same as the ones that
were presented in the meeting of the full Judiciary Committee, and on the floor of the Senate in
both sessions.
42. What I have called the Andino report, showing that Minority voters were more likely
than White voters to lack a DMV-issued ID was fully debated in the General Assembly in 2009
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and 2010 (see Floor debates in the Senate on 27January 2010, at SC_00161118 and
SC_00161500-7). The members of the legislature were fully aware of the disparate impact the
law would have on Minority voters.
43. Legislators were not only aware of the disparity between the proportion of Whites and
Minority voters who had a DMV-issued ID, but they were also aware of the socio-economic
(SES) differences that increase the extent to which minority voters without a photo ID will be adversely affected by the law. And they were also aware that these Minority voters are the pre- dominant base of the Democratic Party vote in South Carolina. Lt. Governor McConnell testifies that Minorities generally support Democrats and that Senators are well aware of this fact (p. 67).
Senator Campsen testifies that he is aware that Minority voters are more likely to have lower
SES, and that Minority voters in South Carolina do not support Republicans. He cites election returns as a reason that other Senators and Representatives also understand these political and social realities (pp. 55-6).
44. Senator Knotts was concerned about the large number of people who do not have a
DMV-issued ID, but thinks the educational arrangements in the law will take care of it, even
though he knows there are no transportation arrangements for those without a photo ID (pp. 75-
81).
45. The proponents of a photo ID requirement for voting understood that the manipulation of the kinds of ID that are permitted for voting can be used to make it more difficult for some kinds of people to vote. An illustration of this is in the exclusion of student ID from the list of accepta- ble ID for voting. Senator Campsen explained the rejection of student ID to vote in terms of resi- dency concerns (p. 124-25). This is also the reason given by Senator Knotts (p. 48). Yet they
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admit that since the photo ID law provides that the address on the ID is not determinative of domicile, this argument makes no sense. Ms. Bowers testifies that the reason there is opposition to allowing student ID for voting is that “a lot of people don’t like the fact of students voting in their college towns. A lot of people just have a problem with that” (p. 32). Here the reference (“a lot of people”) seems to refer to individuals like Mr. Wesley Donehue. It is a clear statement that part of the purpose of restricting the kinds of ID that can be used to vote could be to suppress the vote of some kinds of voters. While most student voters might be White, there are several histor- ically Black colleges and universities in South Carolina.
46. Senator Campsen testified that he and Senator McConnell (now Lt. Governor) believed that the more strict provisions in the House version of the bill, which became law, made it less likely to be precleared than would the Senate preferred version (pp. 136-37, 175). That is, ac- cording to Campsen, part of the reason that he and Senator McConnell voted to non-concur to the House passed version before the conference.
Partisan Pressure, not Public Opinion Drove Legislation
47. The proponents of the photo ID law argue that they were responding to public pressure to increase confidence in the election process by ending impersonation voter fraud. They had no evidence of impersonation fraud, and indeed, abundant evidence that it did not exist as a public problem in South Carolina as demonstrated in my analysis above and in my initial declaration.
Nor did they have any evidence of a lack of public confidence in the election process, or public concern with the lack of a photo ID requirement for voting. If they had sought out such evidence, they would have discovered the SEC studies that showed high levels of voter confidence in the
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process. But they would also have discovered great dissatisfaction with the long lines experi- enced throughout the state in 2008 and to a lesser extent in 2010.
48. Almost everyone (even several of the Republicans) who testified in the Senate hearings was in favor of early voting as a realistic solution to two problems. First, the public was “voting with their feet” by misusing the in-person absentee process as a way to vote early. This involved falsifying an oath, since South Carolina does not have no-excuse absentee. The lines around the county EC offices during the in-person absentee period were quite long in 2008 and this was mentioned frequently in the hearings and debates. Second, early voting would also relieve the long lines at the polling places on election day. South Carolina had the longest average wait time
for voting in the country, as much as six hours (see my initial declaration ¶ 70). The need for re-
lief from these problems was repeated made clear by the SEC, SCARE, testimony at the hearings, and other sources. Yet the General Assembly chose to pass legislation creating a photo ID re- quirement, but no early voting. It is even probable that the photo ID law would make the lines even longer (Calkins deposition, pp. 31, 57, 73-4), although Mr. Debney was unwilling to use his expertise to estimate the impact the law might have on the length of lines (pp. 78-79). Dr. Cal- kins indicates that while she has never heard a complaint about the kinds of ID required to vote, she hears frequently about long lines (p. 49).
49. The source of pressure for a photo ID law came from a specific faction, not from the gen- eral public. As I indicated in my initial declaration, this source of specific pressure was from Re-
publican Party organization members and conservative activists, who would have no reason to be
concerned about the possible disenfranchisement of Minority voters who are strongly associated
with the Democratic Party. As the Federal courts have found repeatedly, in South Carolina party
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means race, they cannot be disentangled (see ¶¶ 58-59 of my initial declaration). Given that vot- ers do not register to vote by party in South Carolina, race becomes a proxy for partisanship.
50. Senator Campsen testifies about the pressure from conservative and party activists to adopt only a “clean bill,” meaning the House version of the bill (pp. 119-20, 130-3, 137-38, 213-
14). It was a “PR campaign from the House side” (p. 132). His testimony makes clear that the pressure came from party activists, not from the general public. This pressure was so intense that he and other Republicans in the Senate were not able to stand against their partisan colleagues in the House to successfully advocate for early voting which the Senate unanimously favored and which the general public clearly wanted. The pressure was great enough to cause the Senate to abandon the norm of collegiality and consensus decision-making.
51. Mr. Donehue presents the most detailed picture of the relationship between the party and the General Assembly, because that relationship is his responsibility. He testifies that pressure was greater on this issue than on any other in the two sessions that considered photo ID (pp. 34-
35). The sources of this pressure are clear from his testimony, but discernment of the nature of the pressure requires a careful reading of his entire testimony on this subject (pp. 28-35, 63, 82-
83, 89-91, 124-27). Mr. Donehue’s role is to facilitate communication between the Senate Re- publican Caucus and the Republican Party organization and activists. He sometimes seemed to confuse party opinion with general public opinion. But when examined closely in terms of where he says the pressure was coming from and who was applying that pressure, it is clear that this was not generalized public concern with the issue, but party activists and organization members forcefully expressing their views. Emails to and from Representative Clemmons cited in my ini- tial declaration and remarks in the Journal from then Senator McConnell (see appendix C of my
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initial declaration) confirm the Republican Party organization, party activists, and conservative or Tea Party activists as the source. This does not mean, of course, that the more public part of the pressure campaign would not result in some public awareness of the issue.
52. Mr. Donehue also reflected the attitude of many party activists and organizational mem- bers in his assumption, without any evidence, of voter fraud by students discussed in my initial declaration (¶ 51), and in his discussion of the role of predominantly Black churches in South
Carolina politics. Mr. Donehue testified that Democrats (he cites Senator Yancey McGill, a
White Democrat) make donations to majority or historically Black churches in their district in an attempt to get the votes of the church members (pp. 114-120).
Conclusions
53. These additional depositions and transcripts of hearings and committee meetings are con- sistent with the evidence I presented in my initial declaration. The Arlington Heights criteria suggest that irregular procedures are evidence of intent to discriminate. In the 2009-10 legislative session the House conference committee representatives short-circuited the conference process leaving the Senate representatives with no choice but to acquiesce to the House version of the photo ID bill. In both the 2009-10 and 2011-12 legislative sessions the advocates of the photo ID bill resorted to the use of the Rules Committee “special order by majority vote” to avoid the usu- al rules for setting the agenda of the Senate. Both of these actions are unusual deviations from the normal procedures in the General Assembly, even if neither deviation is unique or contrary to the rules.
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54. All of the deponents testified that they have no evidence of impersonation voter fraud in
South Carolina except Ms. Bowers, who presents a single case of uncertain origin and outcome.
The deponents sometimes refer to stories or rumors, but have to admit there is no concrete or
credible evidence of such fraud that could be relied on. Nor do they claim to have any evidence
of a lack of confidence in the election process by the South Carolina public. Nor do they claim to
have any evidence that voters generally are concerned about impersonation voter fraud. Nor did
they seek out any evidence of public confidence or fears of voter impersonation fraud. The key
word is “evidence.” Therefore, the claim that they have a basis for using a photo ID law to in-
crease confidence in the South Carolina election process is pretextual. In terms of the Arlington
Heights standards, this evidence indicates that the justifications for the photo ID law are pretextual, and we have to search for another basis for the passage of the law. That basis is the
pressure applied by Republican Party activists, who would have no concern about the greater
impact of the law on minority voters.
55. These depositions and the transcripts of Senate Judiciary Committee and sub-committee
hearings and meetings confirm my description of the process by which the photo ID law was
adopted. There is now a clearer picture of the testimony in the sub-committee hearings. That tes-
timony was overwhelmingly negative on the photo ID requirement, while strongly positive on
early voting. The testimony in favor of a photo ID requirement for voting comes almost exclu-
sively from Republican Party organization activists. The House was unresponsive to the Black
representatives, while the Senate negotiated with the minority (racial and political) only within
the absolute requirement of a photo ID law. That is, the Republicans in the Senate, like their
counterparts in the House, were unresponsive to arguments that the law was not needed and that
it would disproportionately affect Minority voters, and that provisions to ameliorate the impact
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on Minorities would not be sufficient. Some of the important provisions favored by Black sena-
tors were, in turn, stripped from the final bill by the conference committee.
56. These depositions illustrate the confusion over the meaning of the reasonable impediment
clause in the law. Deponents not only disagree with each other over the meaning, but seem to
disagree with themselves in some instances. Nor is the situation any clearer with regard to the
process by which the reasonable impediment provision would be implemented. Several propo-
nents of the photo ID law have an unjustified faith in the ability of the SEC to standardize the
application of the law at the polls and the canvass of the votes. This faith is unjustified, as indi-
cated in my initial declaration, because the SEC has no authority over the county ECs, much less
the individual poll managers. Local election officials in South Carolina are somewhat independ- ent of the SEC. The problems with the reasonable impediment clause were barely discussed in the hearings or committee meetings on the bill. They present the troubling opportunity for bias in the application of the law.
57. There is also direct confirmation that the impetus for the photo ID law came from the Re- publican Party and party activists and not from a generalized concern in the public or a lack of public confidence in the election process. This is clear in all the depositions, but especially in the deposition of Mr. Donehue. It is also clear from the hearings in which mainly Republican Party officials testified in favor of the law. This pressure, rather than an evidence-based need to pre- vent voter impersonation fraud or increase public confidence in the election process, is the impe- tus for passage of the photo ID law.
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58. This evidence confirms my opinion that the photo ID law was adopted with the intent or purpose to discriminate against Minority voters using the criteria from the Arlington Heights de- cision.
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Appendix A Senate Rule 33 Rule 33.
Motion Period and Special Orders
A. During the motion period, any motion pertaining to the business of the Senate may be made. When a motion is made to set a Bill for Special Order, time shall be given to one proponent and one opponent to speak on the motion. Such remarks shall be limited in the discretion of the presiding officer provided, that no Bill may be taken up during the motion period for the purpose of debating the merits of the Bill or for the purpose of giving the Bill a reading. Procedural motions shall be decided without debate; provided, that procedural motions which present a main question, such as a motion to recall, are subject to not more than ten minutes of debate, five (5) minutes for and five (5) minutes against. The motion period shall not exceed thirty (30) minutes unless extended by a majority of Senators present and voting. At any time, the President Pro Tempore, after consultation with the Majority Leader and Minority Leader, may make any motion pertaining to the business of the Senate and such motion shall be adopted upon approval of three-fourths (3/4) of the membership of the Senate.
B. During the motion period, all motions to set a Bill or Resolution for Special Order on a subsequent legislative day shall be in order irrespective of whether the Bill or Resolution was given a reading on the legislative day the motion is made. Said motions shall be considered in the priority established by the recognition of the Senators making said motions. Each such motion shall relate to a separate Bill or Resolution. Except for explanatory remarks authorized in subsection A, such motions shall be determined without debate and by two-thirds (2/3) of the Senators present and voting. Provided, that, when authorized in writing by a majority of the members of the Rules Committee and delivered to the desk, a motion to set a bill for Special Order, shall require a vote of a majority of the members present and voting. At no time may the Special Order calendar have more than one Bill which is set for Special Order by a motion authorized by the Rules Committee. During the motion period, no Bill or Resolution can be made a Special Order ahead of Bills or Resolutions which have already been placed in the status of Adjourned Debate.
If a Bill is set for Special Order on a date and/or time certain, such Bill is not subject to consideration at the specified date and/or time unless the Senate reaches that order of business or unless by unanimous consent the Senate has agreed that consideration of the Bill will be to the exclusion of all other matters pending before the Senate at such time.
If a Bill or Resolution is set for Special Order for second reading and subsequently receives such reading, the Bill or Resolution shall remain on Special Order unless otherwise agreed to by three- fifths (3/5) of the Senators present and voting.
Last Updated: 1/15/09 11:07 AM Case 1:12-cv-00203-CKK-BMK-JDB Document 157-5 Filed 08/08/12 Page 1 of 151 Exhibit E Case 1:12-cv-00203-CKK-BMK-JDB Document 157-5 Filed 08/08/12 Page 2 of 151
Expert Report on South Carolina’s Voter Identification Law, Act R54 Orville Vernon Burton Director, Clemson CyberInstitute Professor of History and Computer Science Clemson University June 19, 2012 Case 1:12-cv-00203-CKK-BMK-JDB Document 157-5 Filed 08/08/12 Page 3 of 151 Table of Contents
Page
I. EXECUTIVE SUMMARY ...... 1
II. QUALIFICATIONS AND PROCESS ...... 3 A. Professional Background and Experience ...... 3 B. Statement of Inquiry and Description of Sources and Methods ...... 4
III. HISTORY OF STATE-SPONSORED DISCRIMINATION IN SOUTH CAROLINA ...... 5 A. Recent Evidence of State-Sponsored Discrimination ...... 5 B. Race and Partisanship in South Carolina ...... 10 C. The 2008 Election ...... 12 D. Conclusion ...... 14
IV. THE DECISION MAKERS ...... 15 A. Racially-Charged Statements or Conduct by Sponsors and Advocates of Voter ID ...... 15 B. Contemporaneous Legislation with Racially Disparate Consequences ...... 19 C. Conclusion ...... 21
V. THE LAW’S LEGISLATIVE HISTORY ...... 22 A. The Law’s Predecessor: H. 3418 (2009-10) ...... 22 B. The Voter ID Law: R54 (H.3003)...... 25 C. Conclusion ...... 35
VI. THE ANTICIPATED EFFECT OF THE CHANGE ON MINORITY CITIZENS ...... 38
VII. EVIDENCE OF PRETEXT IN THE LAW’S STATED PURPOSE ...... 44
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I. EXECUTIVE SUMMARY In this case, Defendant-Intervenors asked me to form an opinion about whether Act R54, the government-issued photo identification law passed by the South Carolina legislature as H. 3003 and signed by Gov. Nikki Haley in 2011 (hereinafter, the “Voter ID Law,” “ID Law,” or the “Law”) was passed with a racially discriminatory intent. As detailed below, I conclude that it was. According to the United States Supreme Court in Arlington Heights, when evaluating whether a governmental act was motivated by a discriminatory purpose, one should consider a range of facts and circumstances. The Court identified four factors as relevant circumstantial evidence of discriminatory intent: (1) the historical background of the decision; (2) the views expressed by decision-makers on related issues; (3) the specific sequence of events leading to the decision (including whether there has been a departure from the usual practices or procedures of the decision-making body); and (4) the anticipated or foreseen effect of the change on minority citizens.1 These factors are consistent with the inquiries a historian makes in order to draw conclusions in this area. This report first summarizes my qualifications and methodology as an expert witness. Then, Section III examines the recent history of discrimination in South Carolina and specific events in the State to ascertain the climate of race relations during the period when the Law was being considered. Section IV of the report examines racial views expressed by sponsors and advocates of the Voter ID Law, as well as other legislation contemporaneously considered or passed that threatened to impact the rights of racial minorities. Section V presents the legislative history of the Voter ID Law, as well as that of its predecessor, H. 3418. Section VI examines the anticipated effects of the Voter ID Law on minority citizens. The final section includes an analysis of the main justification given for the Law, namely that the bill was intended to reduce voter fraud. Notably, there is absolutely no evidence of the kind of in-person voter fraud that the Voter ID Law purports to address. Based on my evaluation of the Arlington Heights factors and other relevant criteria related to South Carolina’s passage of Act R54, identified infra, I conclude that the Law was motivated by a discriminatory purpose. My research persuaded me that the
1 Village of Arlington Heights v. Metropolitan Housing Corp., 429 U.S. 252, 265-68 (1977).
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goal of hindering African American voting played a substantial role in the introduction of the Voter ID Law’s predecessor legislation in 2009 (the “2009 Voter ID Bill”) immediately following President Obama’s inauguration. The same motivation was present in 2011 when the South Carolina Legislature introduced and passed the current Voter ID Law. In particular, I conclude that South Carolina’s Law was intended to suppress the growing strength of the African American vote. I base this conclusion on all of the factors described below, including the following findings: South Carolina has a long history of efforts to hinder African American voting, including very recent examples of state-sponsored discrimination;
a sustained history of racial bloc voting by African Americans and their overwhelming support for Democrats has led to a perception on the part of the Republican party that African American turnout is an electoral threat;
adamant and unprecedented efforts to pass voter ID legislation followed on the heels of President Obama’s election and record African American turnout in South Carolina;
the 2011 South Carolina Legislature considered and passed a number of other measures that targeted minority populations;
the Law was a partisan bill and opposed by every African American legislator in the House and the Senate;
key decision-makers demonstrate a propensity for racially-charged remarks and embrace racially insensitive culture;
the legislative histories of the Voter ID Law and its predecessor were characterized by procedural irregularities that suggest the presence of a discriminatory purpose;
the Legislature rejected proposed amendments that would not undermine the stated purpose of the Law but would ameliorate the Law’s disparate burden;
the Voter ID Law was treated with the utmost urgency in the face of severe opposition, even though there is no evidence of any problem the law would address;
key decision-makers were made aware of the disparate impact the Voter ID Law would have on African American voters through their own research in the redistricting context, through the hearing process, and through public
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discourse, but made no effort to address this issue; instead, they showed an utter disregard for minority viewpoints;
the strict limitations on what IDs are accepted under the Law are not necessary to ensure a voter is who he says he is, raising serious questions about the Legislature’s decision to reject the use of State employee IDs and student IDs; and
no bill sponsors, election administrators or members of the testifying public could identify any verified instances of voter fraud that would be addressed by the Voter ID law, strongly suggesting that the stated reason for the Law is a pretext.
II. QUALIFICATIONS AND PROCESS
A. Professional Background and Experience I am Professor of History and of Computer Science at Clemson University as well as the Director of the Clemson CyberInstitute. From 2008 to 2010, I was the Burroughs Distinguished Professor of Southern History and Culture at Coastal Carolina University. I am emeritus University Distinguished Teacher/Scholar, University Scholar, Professor of History, African American Studies, and Sociology at the University of Illinois at Urbana- Champaign. My research and writing focus on American History and particularly on race relations. For the past four decades I have taught courses in U.S. History, Southern History, South Carolina history, race relations, discrimination, ethnicity, family, and community. I use statistical analysis in my own research and writing, and I also taught courses in quantitative techniques at the University of Illinois. I was a member of the graduate statistics faculty and am still a Senior Research Scientist at the National Center for Supercomputing Applications where I was Associate Director for Humanities and Social Sciences (2004-2010). I was also the founding Director of the Institute for Computing in Humanities, Arts, and Social Science at the University of Illinois and currently chair the their Advisory Board. I have been qualified as an expert in the fields of districting, reapportionment, and racial voting patterns and behavior in elections in the United States. I have had extensive experience in analyzing social and economic status, discrimination, and intent in voting rights cases, and group voting behavior. I have been retained to serve as an expert witness and consultant in numerous voting rights cases by the Voting Section of the
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Division of Civil Rights of the United States Department of Justice, the Voting Rights Project of the Southern Regional Office of the American Civil Liberties Union, the National Association for the Advancement of Colored People, the Mexican American Legal Defense and Educational Fund, the California Rural Legal Association, the League of United Latin American Citizens, the Lawyers’ Committee for Civil Rights Under Law, the Legal Services Corporation, and other individuals and groups. To the best of my knowledge and memory, in the last five years I have not testified in any cases. In 2011, I gave a deposition in Perez v. Perry, regarding congressional redistricting in Texas and the State House of Representatives, and in 2012 I gave a deposition in the habeas proceeding of Albert Woodfox, convicted of a 1972 murder in Angola prison, Louisiana. A detailed record of my professional qualifications is set forth in the attached Curriculum Vitae.2
B. Statement of Inquiry and Description of Sources and Methods In this case, I have been asked to research and form an opinion on whether the Voter ID Law was adopted with a racially discriminatory intent. In the course of my investigation into the purpose behind Act R54, I have examined a wide range of sources, including published works by historians, political scientists, and sociologists; reviews of newspaper clippings, census reports, trial transcripts and transcripts of legislative debates, deposition transcripts, legislative journals, and other government documents and reports. I also studied emails, blogs, and materials prepared by different organizations about the Voter ID Law, some of which were produced in this litigation. For the most part, I gathered these materials independently or with the help of my research assistant, Beatrice Burton, a History Ph.D. candidate. In some cases I requested specific documents that were supplied by the attorneys for the Defendant-Intervenors. In preparing my report and my testimony in this case, I used sources of documentation that experts commonly consult in investigating questions of this nature. The methodology that I have employed in preparing my report is the same methodology experts in the fields of history and sociology regularly employ when examining issues of
2 App’x A.
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the sort investigated here. Finally, the analysis presented here is consistent with related scholarly research; I have used assumptions, methods, and analytical principles consistent with those employed in this field.
III. HISTORY OF STATE-SPONSORED DISCRIMINATION IN SOUTH CAROLINA No one disputes South Carolina’s dark, long and well documented history of racial discrimination. “The central fact in the history of black Carolina,” stated historian I. A. Newby, “has been the racism of white Carolina.”3 And indeed, the historical experience and background to the enactment of the Voter ID Law can only be fully understood in the context of the State’s past. In Appendix B, I document the longstanding history of both official and unofficial state discrimination and racism.4 Here, I focus on recent evidence of state-sponsored discrimination.
A. Recent Evidence of State-Sponsored Discrimination In the last twelve years, every branch of the federal government has recognized evidence of systemic, state-sponsored racial discrimination in South Carolina. 1. Federal Judiciary First, the federal courts have recognized multiple occurrences of state-sponsored discrimination.5 For instance, In the litigation that followed the 2000 census, a three-judge District Court panel noted that the parties largely stipulated to the “extensive documentation of the history of voting-related racial discrimination in South Carolina.”6 The court also acknowledged the “socio-economic gap between the average white citizen and the average black citizen.”7
3 I.A. NEWBY, BLACK CAROLINIANS: A HISTORY OF BLACKS IN SOUTH CAROLINA FROM 1895 TO 1968 15 (Columbia: University of South Carolina, 1973). 4 I have also analyzed that history and particularly the more recent history of discrimination through the 1990s: Orville Vernon Burton et al., SOUTH CAROLINA, THE QUIET REVOLUTION IN THE SOUTH: THE IMPACT OF THE VOTING RIGHTS ACT, 1965–1990 199 (Chandler Davidson & Bernard Grofman eds., 1994); see also John C. Ruoff & Herbert E. Buhl, Voting Rights in South Carolina: 1982-2006, 17 S. CAL. REV. L. & SOC. JUST. 700 (2006). 5 See especially the more than one hundred pages of details of the various cases documented on South Carolina for the renewal of the Voting Rights Act by the ACLU. LAUGHLIN MCDONALD & DANIEL LEVITAS, THE CASE FOR EXTENDING AND AMENDING THE VOTING RIGHTS ACT, VOTING RIGHTS LITIGATION, 1982-2006: A REPORT OF THE VOTING RIGHTS PROJECT OF THE AMERICAN CIVIL LIBERTIES UNION (2006), available at http://www.aclu.org/files/votingrights/2005_report.pdf/. For extensive case examples from South Carolina, see id. at 562-663. 6 Colleton Cnty. Counsel v. McConnell, 201 F. Supp.2d 618, 641 (D.S.C. 2002). 7 Id. at 642 fn. 20.
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In 2003, Judge Patrick Michael Duffy issued a lengthy opinion detailing evidence of state-sponsored racial discrimination in United States v. Charleston,8 ultimately concluding that the challenged at-large electoral system “unlawfully exacerbate[d] the disadvantaged political posture inherited by generations of African Americans through centuries of institutional discrimination” and was therefore unlawful under Section 2 of the Voting Rights Act.9 Several of the observations made by that federal court are of particular importance to this case.
First, the court found that African Americans in Charleston County suffer lower levels of education, employment, income, and living conditions as a result of the long history of past discrimination.10 Second, the court specifically concluded that “there has been a long history of official discrimination touching the right of African Americans to register, to vote, or otherwise to participate in the democratic process.”11 Finally, after reviewing a voluminous record, the court found “significant evidence of intimidation and harassment” of African American voters, including in very recent elections.12 Charleston County Election Commissioner Carolyn Collins credibly testified, for instance, that “she had received complaints from African American voters concerning rude or inappropriate behavior by white poll officials in every election between 1992 and 2002.”13
In 2009, the district court in Levy v. Lexington County, a case concerning a local school board election scheme, similarly noted examples of past and continuing discrimination.14 The court found myriad “lingering socio- economic effects of discrimination.”15 Poverty was triple the rate for African Americans than for whites, African American median income was half that of whites, and educational attainment of African Americans was also substantially lower.16 The Court also noted that segregation persists “to a great extent with respect to churches, workplaces, businesses, and communities.”17 And, the court found that School Board testimony “suggests a lack of responsiveness to the needs of those black students who are performing poorly.”18
8 316 F. Supp. 268 (2003). 9 Id. at 271. 10 Id. at 284-86. 11 Id. at 286 n. 23. 12 Id. 13 Id (emphasis added) (referencing Tr. at 845-46, 2689). 14 Levy v. Lexington Cnty., S.C., 2009 WL 440338 (D.S.C. Feb. 19, 2009), order vacated, 589 F.3d 708 (4th Cir. 2009). The district court ultimately ruled against the plaintiffs, after a favorable decision was vacated and remanded by the 4th circuit. See Levy v. Lexington Cnty., S.C., 2012 WL 1229511 (D.S.C. Apr. 12, 2012). The findings of past and continuing discrimination, however, were not called into question. 15 Levy v. Lexington Cnty., S.C., 2009 WL 440338, at 2. 16 Id. 17 Id. 18 Id. at 18.
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These cases are just some recent illustrations of South Carolina’s long history of discriminatory election laws. In the 1980s, South Carolina’s refusal to comply with the preclearance requirements of the Voting Rights Act (the “VRA”) has required the U.S. Supreme Court action to force compliance.19 And, in 1995, South Carolina refused to comply with the National Voter Registration Act (the “NVRA”), ultimately necessitating the issuance of an injunction. In that case, Condon v. Reno,20 the federal district court specifically noted that South Carolina’s deliberate actions excluded large groups of minority voters. While the State eased registration procedures at the Department of Motor Vehicles (the “DMV”) and attempted to follow the NVRA, it refused to follow that law’s mandates in the Department of Social Services where 70-80% of the clientele was minority. In other words, the State’s non-compliance with NVRA was not universal; rather, the State refused to comply only at the Department of Social Services (and other social service agencies) where minority clients were most likely to be served. 2. U.S. Congress Moreover, when the U.S. Congress re-authorized the Voting Rights Act in 2006, it relied upon considerable evidence of racial discrimination nationwide, including discrimination stemming in South Carolina.21 Evidence of discrimination in South Carolina was presented throughout the hearings,22 and one hearing focused on discrimination in Charleston, Lancaster, and Sumter Counties.23 “Protecting Minority Voters: The Voting Rights Act at Work 1982-2005,” a publication by The Lawyers’
19 See, e.g., Blanding v. DuBose, 454 U.S. 393 (1982); McCain v. Lybrand, 465 U.S. 236 (1984); NAACP v. Hampton County, 470 U.S. 166 (1985). 20 913 F.Supp. 946 (D.S.C. 1995). 21 See generally H.R. REP. NO. 109-478 (2006), available at http://thomas.loc.gov/cgi- bin/cpquery/?&sid=cp109lijdp&refer=&r_n=hr478.109&db_id=109&item=&sel=TOC_23165&; S. REP. NO. 109-295 (2006), available at http://www.congress.gov/cgibin/cpquery/T?&report=sr295&dbname=109&. See also John C. Ruoff & Herbert E. Buhl, Voting Rights in South Carolina, supra. 22 See, for example, two reports prepared to be presented as evidence to Congress on renewal of the Voting Rights Act: Laughlin McDonald & Daniel Levitas, The Case for Extending and Amending the Voting Rights Act: Voting Rights Litigation, 1982-2006, ACLU VOTING RIGHTS PROJECT, March 2006, at 562-663, available at http://www.aclu.org/files/votingrights/2005_report.pdf; Ruoff & Buhl, Voting Rights in South Carolina, supra. Also, evidence from South Carolina presented for the renewal of the Voting Rights Act was also presented as evidence for the Texas Section 5 preclearance case, Northwest Austin Mun. Util. Dist. No. One v. Holder, 129 S. Ct. 2504 (2009). 23 Renewing the Temporary Provisions of the Voting Rights Act: Legislative Options After LULAC v. Perry: Hearing Before the Subcomm. on the Constitution, Civil Rights and Property Rights of the S. Comm. on the Judiciary, 109th Cong. 252-55, 265-67 (2006) (statement of Jon Greenbaum, Director of the Voting Rights Project).
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Committee for Civil Rights under Law that was presented to Congress, chronicles myriad examples of voting discrimination in South Carolina. In one instance, a group of Lexington County white citizens “informed one of their Republican representatives that they didn’t want any [African American representatives], and they used a racial epithet, the ‘n’ word, on the Lexington County delegation, referring specifically to a plan that had drawn a black representative into portions of Lexington County.”24 3. The Department of Justice Finally, the Department of Justice (the “DOJ”) has objected 122 times to proposed changes in voting practices or procedures in South Carolina since 1972, and eleven times since 2000. A careful study of objections from 1982 to 2006 came to the following conclusion: Since 1982, the discriminatory practices to which the DOJ objected have covered a wide variety of changes that affected nearly every aspect of African American citizens’ participation in South Carolina’s electoral processes, including discriminatory redistricting, annexations, voter assistance, changing county boundaries, eliminating offices, reducing the number of seats on a public body, majority vote requirements, changing to at-large elections, using numbered posts or residency requirements, staggering terms, unfair scheduling of elections, changing from nonpartisan to partisan elections and limiting the ability of African American citizens to run for office.
Since 1982, those Department of Justice objections to discriminatory practices have covered all levels of government: the General Assembly (both Senate and House), counties, county boards of education, school districts, cities and municipalities and a board of public works. These objections also have covered the state geographically. Many of those jurisdictions engaged in decade-long resistance to the Voting Rights Act and full representation for their African American citizens.25
Since that study, DOJ has objected three additional times to new South Carolina voting changes under Section 5 of the VRA. In 2010, for instance, DOJ objected to a state law, Act 136, giving members of the Fairfield County legislative delegation the power to appoint an additional two members to the local elected seven member school
24 THE NATIONAL COMMISSION ON THE VOTING RIGHTS ACT, PROTECTING MINORITY VOTERS: THE VOTING RIGHTS ACT AT WORK 1982-2005 92 (February 2006). This specific incident is also discussed in Jeffrey Collins, Wilkins Says Most of House Supports GOP Redistricting Plan, ASSOCIATED PRESS, Jan. 16, 2002. 25 Ruoff & Buhl, Voting Rights in South Carolina, supra, at 656.
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board.26 “The act expands the board’s membership by more than a quarter, without a concomitant expansion of the electoral franchise.”27 DOJ argued that Act 136 reduced the proportion of positions in “which minority voters can elect candidates of choice on a local elected body.”28 Moreover, under the new law, these new members were given exceptionally long terms of twelve years, and they would be appointed from the two- member legislative delegation itself, neither of whom was allegedly “a candidate of choice of minority voters.”29 For all of these reasons, DOJ concluded that “the sole impact of the decision [was] to reduce the level of electoral influence that African American voters have on the board.”30 In addition to its Section 5 objections, the DOJ brought affirmative lawsuits under Section 2 of the VRA. In 2008, DOJ filed a Section 2 lawsuit against Georgetown County, challenging their at-large election system. 31 Georgetown allegedly used discriminatory devices such as primaries, very large election districts, majority vote requirements, and staggered terms, all of which rigged elections “against the minority group.” DOJ also alleged that “[p]olitical campaigns in Georgetown County have been characterized by subtle and overt racial appeals” and that “African Americans in the County have suffered from a history of official discrimination.” Moreover, the “[s]ignificant socioeconomic disparities” of African Americans and whites limited “African American participation in the District’s at-large elections.” And, although African Americans are more than 38 percent of the population of Georgetown County, there was not one black school board member. Georgetown County ultimately resolved the matter by entering into a consent decree.32
26 It was unusual, DOJ noted, that Act 136 “through an ad hoc local legislation process” instead of through a statewide approach which would apply uniformly. Noting that they agreed with Gov. Mark Sanford who originally vetoed the bill, DOJ wrote that “the more appropriate approach would be for the electorate in Fairfield County to express its will through the ballot.” Letter from Thomas E. Perez, Assistant Attorney General, U.S. Dep’t. of Justice, to C. Harvird Jones, Jr., Senior Assistant Attorney General, Aug. 16, 2010, available at http://www.lawyerscommittee.org/admin/section_5/objections/files/Objection-Fairfield- County-School-District-SC-2010-0971.pdf. 27 Id. 28 Id. 29 Id. 30 Id. 31 See generally Complaint, U.S. v. Georgetown Cnty. Sch. Dist., No. 2:08-CV-00889-DCN (D.S.C. Mar. 14, 2008). 32 Id. at 2-5; see also Consent Decree, U.S. v. Georgetown Cnty. Sch. Dist., 2:08-CV-00889-DCN, at 1 (D.S.C. Mar. 21, 2008).
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B. Race and Partisanship in South Carolina Another important factor in understanding the motivation behind the Law is the integral link between race and party in South Carolina. More than in any other southern state, the development of the modern Republican Party is inextricably tied to distinguishing the Republican Party from the heavily black Democratic Party. In 1964, in the midst of the Civil Rights Movement, the Republican Party’s nominee for President, Senator Barry Goldwater, announced that he did not support the Civil Rights Act of 1964. As he told a group of Republicans from southern states, it was better for the Republican Party to forego the “Negro vote” and instead court white southerners who opposed equal rights.33 Historians agree that Goldwater “sought to create a general polarization of southern voters along racial lines.”34 These efforts at racial polarization were effective in the South generally and in South Carolina in particular. By the 1990s—as a result of decades of racial polarization—the Republican Party was almost exclusively white, and African Americans who wanted input into the political process had no alternative to the Democratic Party.35 Such polarization means that efforts to diminish the vote among Democrats, and particularly poor Democrats, will automatically strike at the African American community. In my article on South Carolina of the book, The Quiet Revolution, I detail the history of racial bloc voting until 1990,36 and conclude that high levels of racial bloc voting have long persisted in State elections. The DOJ has recently agreed, alleging in 2008 that“[r]acially polarized voting patterns prevail in elections in [Georgetown] County.” Although African Americans were “politically cohesive ….[w]hite bloc voting usually results in the defeat of candidates who are preferred by African American voters. That is, in [Georgetown] District elections since 2002, white voters have consistently voted as a bloc so as to defeat every African American preferred candidate.”37 In addition, a 2011 expert report by Dr. Richard Engstrom, from Georgia State University, found strong racially polarized voting in South Carolina Senate elections from 2002 to
33 DAN T. CARTER, THE POLITICS OF RAGE: GEORGE WALLACE, THE ORIGINS OF THE NEW CONSERVATISM, AND THE TRANSFORMATION OF AMERICAN POLITICS 218 (1995). 34 Declaration of Dan T. Carter, U.S. v. Charleston County Council, D.S.C., No. 2-01-0155-11, (2001), at 20. 35 See generally id. 36 Burton et al., supra, at 212-213; Ruoff & Buhl, Voting Rights in South Carolina, supra, at 711. 37 Complaint, U.S. v. Georgetown Cnty. Sch. Dist., No. 2:08-CV-00889-DCN (D.S.C. Mar. 14, 2008).
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2010. His careful study of 59 elections for county officials also “reveal[ed] pervasive and persistent racially polarized voting within these counties across elections for different offices and held in different years.” Dr. Engstrom concluded that “racially polarized voting was pervasive across the counties in both statewide elections and in the presidential primary.”38 Federal courts have recently affirmed that African Americans and whites in South Carolina consistently vote in racially polarized blocs: In a redistricting case in the early 1990s, the district court found that “[i]n South Carolina, voting has been, and still is, polarized by race. This voting pattern is general throughout the state and is present in all of the challenged House and Senate districts in this litigation.”39
When redistricting decisions were challenged ten years later, the Colleton County court found: “Voting in South Carolina continues to be racially polarized to a very high degree, in all regions of the state and in both primary elections and general elections. Statewide, black citizens generally are a highly politically cohesive group and whites engage in significant white-bloc voting. Indeed, this fact is not seriously in dispute.”40
In 2003, the Charleston County court affirmed again that “significant and pervasive polarization” exists in South Carolina.41
In addition to the courts, the Department of Justice has referred to evidence of racial bloc voting in thirty-eight separate Section 5 objections between 1974 and 1992.42 Sociologist James W. Loewen once examined precinct-level data from 130 contests (held from 1972 to 1985) between black and white candidates.43 Over two-thirds were elections for local office in both rural and urban jurisdictions from every section of South Carolina. An average of 90 percent of white voters cast their ballots as a bloc for white
38 RICHARD L. ENGSTROM, CENTER FOR THE STUDY OF RACE, ETHNICITY, AND GENDER IN THE SOCIAL SCIENCES, DUKE UNIVERSITY, RETROGRESSION ANALYSIS FOR THE SOUTH CAROLINA SENATE DISTRICTING PLAN ADOPTED IN 2011 (2011), available at http://redistricting.scsenate.gov/Exhibits/Exhibit%2014%20- %20REPORT%20BY%20RICHARD%20ENGSTROM,%20PHD/Exhibit%2014%20- %20Report%20by%20Richard%20Engstrom%20PhD.pdf. 39 Smith v. Beasley, 946 F. Supp. 1174 (D.S.C. 1996). 40 Colleton County, 201 F. Supp. at 641 (D.S.C. 2002). 41 Charleston County, 316 F .Supp. 2d at 278. 42 See Burton et al., supra. 43 James W. Loewen, Racial Bloc Voting and Political Mobilization in South Carolina, REV. OF BLACK POL. ECON., Summer 1990, at 23, 25.
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candidates; African Americans were almost as cohesive, voting for candidates of their own race 85 percent of the time. There is only one exception to this pattern. As the Colleton County court explained: The evidence presented overwhelmingly demonstrates that, with rare exceptions, blacks currently prefer to be represented first by black Democrats. In the absence of either the choice, such as in a primary, or the opportunity, due to percentages too low to outvote a cohesive majority bloc vote, blacks prefer to be represented by white Democrats.44
With strong racially polarized voting in the state, any reduction in African American turnout can only benefit the state Republican Party. Conversely, significant gains in African American voting strength are perceived as a threat to the state Republican Party’s electoral success.
C. The 2008 Election After more than one hundred years of relying upon non-photographic voter registration cards to verify voters’ identities, South Carolina introduced its first photo identification bill in early 2009. Accordingly, the history immediately preceding that introduction bears significantly on the question of motivation. South Carolina is perhaps unusual in having a long history of relying upon one specific method of voter identification. That method, the State registration card, was created by the 1895 Constitution and implemented by an 1896 statute. Voters have been presenting that card as proof of their registration and identity ever since. For the first half century after the card’s creation, a voter had to present a poll tax receipt in addition to their registration card.45 After the poll tax was eliminated for being racially discriminatory, only the registration card was required.46 Since 1984, a driver’s license or DMV identification card can also be used as an alternative. Through 2008, during 115 years and tens of millions of votes cast in state and federal elections, the State
44 Colleton County Council v. McConnell, 201 F. Supp. 2d 618, 643 (D.S.C. 2002). 45 S.C. CODE § 213 (1902); S.C. CODE § 239 (1912); S.C. CODE § 241 (9) (1922); S.C. CODE § 2307 (1932); and S.C. CODE § 2306 (1942). 46 S.C. CODE §§ 23-322, 23380 (1952); S.C. CODE § 23-400.51 (1962); and S.C. CODE § 7-13-710 (1976).
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voter registration card was an acceptable method of identification and its legitimacy was never questioned. The Voter ID Law was introduced—and ultimately passed—by an all-white Republican majority, along partisan lines, in the wake of the election of the first African American president. President Obama inspired an unprecedented turnout among black registered voters in South Carolina as he did nationwide. 2008 was the first time ever that a higher proportion of young black voters turned out to vote than whites.47 Overall, in South Carolina, non-whites increased their proportion of the electorate from 26.6% in 2004, to 30.6% in 2008. 48 To be sure, the Law was first introduced in the legislative session following the Supreme Court’s 2008 decision in Crawford v. Marion County, upholding Indiana’s photo identification law. 49 But Indiana’s successful implementation of an election law cannot establish why South Carolina felt suddenly—and urgently—compelled to enact its own identification law. Moreover, all of the available evidence illustrates a connection between President Obama’s election and the push for photo ID. One example: Representative Alan Clemmons, the Law’s lead sponsor, distributed cards promoting the Voter ID Law that expressly proclaimed, “Let’s continue the fight to stop Obama’s nutty agenda!”50 Moreover, during legislative floor debates, numerous lawmakers commented on the ID Law’s telling timing. To cite a couple of examples: Rep. Leon Howard: “What troubles me the most Mr. Speaker, ladies and gentlemen of the house, [is that] this bill suddenly became so important after the election of President Barack Obama. That seems so suspicious to me . . . Now, you know we can tap around the issue…but the bottom line is . . . a fear in reelecting President Barack Obama is all this bill is about.”51
47 Sam Roberts, 2008 Surge in Black Voters Nearly Erased Racial Gap, N.Y. TIMES, July 20, 2009, http://www.nytimes.com/2009/07/21/us/politics/21vote.html?_r=1. 48 Notably, in 2010, the African American turnout rate returned to pre-2008 levels, suggesting that 2008 turnout was tied to Obama’s candidacy in particular. Statistics for the 2004, 2006, 2008, and 2010 elections were calculated from the Voting History section of the South Carolina Election Commission website, http://scvotes.org/statistics/voter_history. 49 The Supreme Court issued its decision in Crawford v. Marion County, 553 U.S. 181 (2008) in April 2008, months before the voter ID legislation was introduced in the 118th Session of the legislature. 50 A little SWAG from the Convention, SPARTANBURG TEA PARTY (May 8, 2011), http://www.spartanburgteaparty.org/2011/05/08/a-little-swag-from-the-convention/ 51 Tr. of House Debate, Jan. 26, 2011, at 32-35.
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Rep. David Mack: “This is not about integrity. . . . This is about politics, pure politics. The Republican Party benefits from a low voter turnout. The Democratic Party benefits from a better, higher voter turnout. . . . In 2008 our president brought a lot of black and brown people to the polls. That’s not good as far as the Republican Party is concerned.”52
Sen. Phil Leventis: “I think this Bill might be [an] initiative because many people didn’t like the outcome of elections. If this Bill is supposed to affect the outcome of elections by addressing the voter or blaming voters because of the outcome of election—there is something un-American about that.”53
On top of all of this, contemporaneous events illustrate the racial tensions felt by some after the 2008 election. In June 2009, a gorilla briefly escaped from the Columbia zoo. During its absence, former State Election Commission Chairman Rusty DePass posted on Facebook that he was sure “it’s just one of [First Lady] Michelle’s ancestors— probably harmless.”54 That a former state official and well-known state political figure felt comfortable posting such a blatantly racist comment is remarkable, and suggests that such inflammatory rhetoric could have been common in the months following the 2008 election.
D. Conclusion South Carolina has a long, well documented history of state-sponsored discrimination, including laws and devices specifically geared to suppress the vote of African Americans. In recent years, such acts have not been overtly racist, but have promoted the suppression of minority voting through more subtle means. Tellingly, to date, no African American has been elected for South Carolina statewide office.55 In full, this history, coupled with the Law’s suspicious timing and the evidence detailed below, supports the conclusion that the Voter ID Law is one of the most recent examples of voting discrimination in South Carolina.
52 Tr. of House Debate, Jan. 26, 2011, at 32-35. 53 Tr. of Senate Debate, Feb. 24, 2011, at 143. 54 See Katrina Goggins, Ex-SC Official Apologizes for Racist Remark, AIKEN STANDARD, June 18, 2009, http://www.aikenstandard.com/story/m1050-BC-SC-RacistRemark-3rdLd-Writethru-06-17-0669. 55 In 2005, then Governor Mark Sanford, a Republican, was asked about this reality. Sanford proclaimed it a tragedy, but stated he “think[s] there never will be” a statewide African American representative. Ruoff & Buhl, Voting Rights in South Carolina supra, at 648 (citing A Quick Spin Around the State House: Sanford’s Views on Black leaders in S.C., COLUMBIA STATE, May 11, 2005, at B3).
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IV. THE DECISION MAKERS In recent years, there have been several, well-publicized, racially-charged incidents involving South Carolina lawmakers who were advocates of strict photo identification requirements. In addition, many of the proponents of the 2009 Bill and the Voter ID Law also supported other legislation which threatened racially discriminatory effects. While not sufficient by themselves to reach the conclusions of this report, the following actions and statements by elected state officials and other legislative efforts in the General Assembly provide added support for my ultimate conclusion.
A. Racially-Charged Statements or Conduct by Sponsors and Advocates of Voter ID 1. Lt. Governor Glenn McConnell Lt. Governor McConnell was President Pro Tempore of the Senate when the Law was enacted, and a sponsor of the Senate’s photo identification bill. He is an outspoken defender of the Confederate South, including the Confederate flag. For instance, McConnell’s official website includes “Sons of Confederate Veterans, Secession Camp #4” with his personal information.56 McConnell was strongly opposed to the 2000 decision to remove the Confederate Flag from the dome of the statehouse after widespread pressure from the national media, businesses and religious organizations. Afterward, evoking Civil War imagery, McConnell said, “Like General Lee when he was confronted with Appomattox and said, ‘There’s nothing left for me to do than get terms from General Grant.’ It is very difficult, extremely difficult for us on our side to vote to move that flag.”57 Soon thereafter, McConnell wielded his authority to defend Maurice Bessinger, a South Carolina restaurateur whose “decision to hoist the Confederate battle flag over his restaurants in 2000 and to sell tracts defending slavery led Wal-Mart, Sam’s Club and seven grocery chains to pull his top-selling barbecue sauce from their shelves.”58 Indeed, Bessinger’s
56 Lieutenant Governor Glenn F. McConnell, SOUTH CAROLINA LEGISLATURE ONLINE –BIOGRAPHY, http://www.scstatehouse.gov/member.php?code=1213636218 57 David Firestone, S. Carolina Senate Votes to Remove Confederate Flag, THE NEW YORK TIMES ON THE WEB (April 13, 2000), http://partners.nytimes.com/library/national/race/041300race-ra.html. 58 Ariel Sabar, S.C. Barbecue King Stands His Ground, THE BALTIMORE SUN (Sep 22, 2002), , http://articles.baltimoresun.com/2002-09-22/news/0209210340_1_bessinger-barbecue-sauce-south- carolina.
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chain refused to serve African Americans until ordered to do so by the Supreme Court in the 1960s, and he has recently called the NAACP a “terrorist group.” McConnell threatened to deny state contracts to local businesses that mistreat Bessinger. In 2010, McConnell attended the “Secession Ball,” a widely-protested gala to commemorate the anniversary of South Carolina’s secession from the United States following Abraham Lincoln’s election to the presidency. Dot Scott, president of the Charleston NAACP, commented that “while we’re trying to say we’re in a post-racial era, South Carolina’s elected officials both locally and nationally have continued to do things that are really atrocious.”59 2. Rep. Alan Clemmons Rep. Clemmons was the Law’s lead sponsor. In response to a statement by U.S. Congressman Jim Clyburn comparing voter identification laws to the methods of disfranchisement once common in the South, 60 Clemmons released a misleading Twitter message that ignored the major realignment in the political parties in the twentieth century South: “Jim Crow: made by DEMS to stop black Americans from voting. Voter ID: made by GOP so every voter has 1vote & ONLY 1vote!”61 3. Governor Nikki Haley Governor Haley signed Act R54 into law, and has been a vocal supporter of photo identification laws. On August 29, 2011, after the Department of Justice sent a letter to the State requesting more information to support preclearance of the Law, Haley posted a note on her Facebook page stating: The NAACP and Dems are fighting me on the Voter ID bill we passed in South Carolina that requires a person show picture ID before voting. An executive of NAACP in Mississippi was just sent to prison for voter fraud on ten counts including voting for dead people. That is why I will continue to fight for the integrity of our electoral process.62
59 Bruce Smith, Pic of SC leader, black re-enactors spurs flap, THE SEATTLE TIMES, (Sep 16, 2010), http://seattletimes.nwsource.com/html/nationworld/2012910683_apusscconfederatephoto.html. 60 James S. Rosen, S.C. Rep. Clyburn compares voter ID laws to Jim Crow era, THE MIAMI HERALD (April 5, 2012), http://www.miamiherald.com/2012/04/05/2733211/sc-rep-clyburn-compares-voter.html. 61 Alan Clemmons, TWITTER (April 5, 2012, 5:27 p.m.), https://twitter.com/RepAlanClemmons/statuses/188060284710166530 (last accessed June 18, 2012). 62 Nikki Haley, FACEBOOK Page, (August 29, 2011), https://www.facebook.com/NikkiHaley/posts/10150278081073226 (last accessed June 18, 2012.
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That Mississippi incident, however, involved fraudulently submitting fake absentee ballots by mail,63 an act which an in-person photo identification requirement cannot prevent. 4. Representative George “Chip” Limehouse Rep. Limehouse, one of the Law’s sponsors, also attended the Confederate Ball. When asked about the NAACP and others protesting the event, Limehouse responded, “They actually helped ticket sales . . . We’d like to thank them. Without them, we wouldn’t have made budget.”64 5. Senator Danny Verdin While the South Carolina Legislature was discussing H. 3418, one of that bill’s supporters, Senator Danny Verdin pushed legislation to have a specialty South Carolina car tag that read “Coon Hunters.” Opponents argued that this tag “would be misinterpreted as a racial slur,”65 and there was significant opposition from the civil rights community.66 Ultimately, the law was vetoed by Governor Sanford. 6. Representative Bill Sandifer Another sponsor, Rep. Sandifer attracted national attention in April 2008 when he left a colorful flyer on his desk entitled “Why He’ll Lose the Black Vote.” The flyer depicts African American men fleeing from a superimposed Barack Obama who is saying, “I’ll make sure everyone who can work, will have a job.”67 In a follow-up story, colleagues stated that Sandifer was enjoying the attention. One said, “He’s thrilled by it.” Another colleague said, “He told me (the scandal) would guarantee his reelection in
63 Matthew Vadum, Mississippi NAACP leader sent to prison for 10 counts of voter fraud, THE DAILY CALLER ( July 29, 2011), http://dailycaller.com/2011/07/29/mississippi-naacp-leader-sent-to-prison-for-10- counts-of-voter-fraud. 64 Manuel Roig-Franzia, Divided They Stand on Rebel Spirit, THE WASHINGTON POST (Dec 22, 2010), http://www.washingtonpost.com/wp-dyn/content/article/2010/12/21/AR2010122105645.html. 65 Anti-Coon Hunters Plate Petition, Veto Of “Coon Hunter” Plate Urged, THE WASHINGTON POST POLITICAL BLOG NETWORK (June 22, 2010), http://voices.washingtonpost.com/politics/blog- network/2010/06/veto_of_coon_hunter_plate_urge.html. 66 Stefan Lonce, South Carolina: Repeal the “Coon Hunters” Special License Plate PL8 Petition (June 10, 2010) http://www.gopetition.com/petitions/no-to-coon-hunters-plate.html; FITSNEWS, Veto Of “Coon Hunter” Plate Urged” (June 22, 2010), http://www.fitsnews.com/2010/06/22/veto-of-coon-hunter-plate- urged/. 67 What’s This?, FITSNEWS (Apr. 3, 2008); Here’s What Was on S.C. Legislator’s Desk, FITSNEWS (Apr. 18, 2008), http://www.fitsnews.com/2008/04/18/heres-what-was-on-sc-legislators-desk.
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Oconee County,” and that Sandifer had sent the article to several residents of his district as “free advertising.”68 7. Senator John “Jake” Knotts Senator Knotts was another outspoken advocate of the ID Law. During the 2010 gubernatorial race, Knotts referred to then-candidate Nikki Haley as a “raghead” on an internet political show. Specifically, Knotts stated: [The voters are] going to find out in the next three days that her daddy wears a turban around Lexington and her mommy has a ruby between her head and she is a Sikh and trying to be a Methodist, and it gets to Greenville, around the Bob Jones University people, they’re not going to like that. . . “We got a raghead in Washington. We don’t need a raghead in the State House.”
In response to national backlash, Knotts claimed that his comments “were intended in jest.” He went on to explain that “I still believe Ms. Haley is pretending to be someone she is not, much as Obama did, but I apologize to both for an unintended slur.”69 Soon thereafter, during floor debate on the Law’s predecessor bill, Knotts defended himself from other House members on the record, claiming, “They make much worse racial and religious statements in private company, some that would make even me blush.”70 Similarly, during South Carolina’s redistricting process in 2002, Knotts objected to a majority-black precinct in his district, and used a racial slur. He later claimed that allegations were misleading, because he was actually relaying a statement made by one of his constituents, a Ku Klux Klan leader.71
68 Colleagues: Sandifer Reveling in Scandal, FITSNEWS (Apr. 15, 2008), http://www.fitsnews.com/2008/04/15/colleagues-sandifer-reveling-in-scandal. 69 Logan Smith, Who Leaked th eLong-Lost Video of Jake Knotts’ “Raghead” Comment?, PALMETTO PUBLIC RECORD (May 15, 2012), http://palmettopublicrecord.org/2012/05/15/who-leaked-the-long-lost- video-of-jake-knotts-raghead-comment/ (containing embedded video of Jake Knotts’ comment). The video can also be found at SC Sen. Jake Knotts Calls barack Obama and Nikki Haley “Ragheads,” YOUTUBE (May 15, 2012), http://www.youtube.com/watch?v=Zq5xMT3z560&feature=plcp. 70 Point of Personal Privilege by Senator Knotts, Legislative History for H.3418 (June 15, 2010), www.scstatehouse.gov/sess118_2009-2010/sj10/20100615.htm. See also John O’Connor, “Knotts’ slur stirs the Haley storm,” THE STATE, June 3, 2010; Andy Barr, South Carolina Republican Party Calls on Jake Knotts to Resign, POLITICO (June 11, 2010), http://www.politico.com/news/stories/0610/38422.html. 71 Jim Davenport, Suit Reply Draws Fire, WILMINGTON MORNING STAR, January 11, 2002, available athttp://news.google.com/newspapers?id=6QJPAAAAIBAJ&sjid=Ux8EAAAAIBAJ&pg=6775%2C27716 60 South Carolina’s Redistricting News (August 18, 2001-February 7, 2002), accessed June 11, 2012, http://archive.fairvote.org/redistricting/reports/remanual/scnews3.htm.
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B. Contemporaneous Legislation with Racially Disparate Consequences The South Carolina House and Senate considered—and in some instances passed—several controversial bills with racially discriminatory undertones, while they were considering the ID Law and the 2009 ID Bill. The following four examples particularly illustrate this subtext. 1. Immigration Bill First, the S. 20 Immigration Bill was signed into law on June 27, 2011. The law requires adults to carry immigration papers on them at all times and grants police broad discretion to detain those suspected of violating immigration law.72 Several organizations, including the American Civil Liberties Union, the National Immigration Law Center, Mexican American Legal Defense and Educational Fund, and the Southern Poverty Law Center, filed a lawsuit to challenge the immigration law, claiming the law would lead to harassment of state Latinos, who account for about five percent of the state’s population.73 The Justice Department also filed suit against the law, agreeing that the law will unfairly target Latinos and could increase the incidents of wrongful detention.74 A South Carolina federal court issued a preliminary injunction against key parts of S. 20 in December 2011. Among others, the injunction blocked the provision that police officers must detain suspected undocumented residents and the provision that
72 Legislative History for S. 20, 119th Reg. Sess. (S.C. 2011-12), available at http://www.scstatehouse.gov/sess119_2011-2012/bills/20.htm. Section 5 of the Bill creates the misdemeanor of failure to carry a certificate of alien registration and Section 6 authorizes law enforcement to determine immigration status upon reasonable suspicion that the person is unlawfully present in the United States. Id. 73 See Federal Court Blocks Major Parts of South Carolina Anti-Immigrant Law, AMERICAN CIVIL LIBERTIES UNION (Dec. 22, 2011), http://www.aclu.org/immigrants-rights/federal-court-blocks-major- parts-south-carolina-anti-immigrant-law; Legal Residents Fear South Carolina Immigration Law, FOX NEWS LATINO (Oct. 26, 2011), http://latino.foxnews.com/latino/politics/2011/10/26/legal-residents-fear- south-carolina-immigration-law. 74 Press Release, U.S. DEP’T OF JUSTICE, Department of Justice Challenges South Carolina’s Immigration Law (Oct. 31, 2011), http://www.justice.gov/opa/pr/2011/October/11-ag-1429.html. See also Elise Foley, South Carolina Immigration Law Draws Challenge from Justice Department, HUFFINGTON POST (Oct. 31, 2011), http://www.huffingtonpost.com/2011/10/31/south-carolina-immigration-law-justice-department- lawsuit_n_1068247.html.
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required adults to carry documentation of their legal status.75 This law had many of the same Senate sponsors who pushed for the Voter ID Law, including McConnell, Knotts, and Campsen. 2. Driver’s License Bill A second law that garnered much opposition from the African American community was S. 288, passed on June 2, 1010. This new law requires individuals who had pled guilty, no contest, or had been convicted of a violent crime to have a distinguishing mark on their driver’s licenses.76 State Democrats and Republican Governor Mark Sanford also opposed the bill, but it was uniformly supported by legislative Republicans, just like the Voter ID Law.77 The driver’s license law was also opposed by a variety of civil rights groups, who argued that it imposed an unnecessary “Scarlet Letter” on ex-offenders—who are disproportionately persons of color.78 The law unnecessarily brands ex-offenders and prejudices police officers who might approach them. While Governor Sanford vetoed the bill, both chambers overrode that veto, and the law went into effect in July 2011.79 3. English Only Bill Senators McConnell and Campsen, who were the lead proponents of the ID Law, were among the senators who introduced a bill making English South Carolina’s official language, and requiring all state government documents and services to be in English only. The bill was referred to the Judiciary Committee, where it apparently stalled.80 As
75 See Judge blocks portions of South Carolina’s immigration law, L.A. TIMES: NATION NOW (Dec. 22, 2011 1:20 PM), http://latimesblogs.latimes.com/nationnow/2011/12/judge-blocks-portions-of-south- carolinas-immigration-law.html. 76 Legislative History for S. 288, 118th Reg. Sess. (S.C. 2009-2010), available at http://www.scstatehouse.gov/sess118_2009-2010/bills/288.htm; Sarita Chourey, New SC Law Adds CriminalRecord to Driving License, AUGUSTA CHRON., Nov. 4, 2011, available athttp://chronicle.augusta.com/latest-news/2011-11-04/new-sc-law-adds-criminal-record-driving-license. 77 Compare Legislative History, House Roll Call Vote Number 257 (Apr. 26, 2011,) http://www.scstatehouse.gov/votehistory.php?KEY=2559 (House vote to adopt conference report for voter ID bill), with Journal for the House of Representatives, 118th Reg. Sess., R. 296, S. 288—Governor’s Veto Overridden (June 29, 2010), http://www.scstatehouse.gov/sess118_2009-2010/hj10/20100629.htm (House vote that overrode the governor’s veto of S. 288). 78 Anthony Miller, ACLU compares license proposal to “Scarlet Letter,”ACLU (Apr. 29, 2010), http://www.aclusouthcarolina.org/newsroom/04292010_aclu_compares_license_proposal_scarlet_letter.pdf. 79 Legislative History for S. 288, 118th Reg. Sess. (S.C. 2009-2010), available at http://www.scstatehouse.gov/sess118_2009-2010/bills/288.htm. 80 Legislative History for S. 19, 19th Reg. Sess. (S.C. 2011-2012), available at http://www.scstatehouse.gov/sess119_2011-2012/bills/19.htm.
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many opponents of the measure have argued, if this bill becomes law, residents for whom English is a second or third language may find it more difficult to access government services and complete government forms, including those related to voting. 4. Bills to Further Suppress Voting H. 4549, introduced in January 2012, would require third-party registration organizations to register with the state and return the registration forms within a truncated amount of time.81 A larger proportion of minority voters become registered through registration drives,82 and measures like H. 4549 would make that process more difficult— and perhaps impossible—for the community-based groups doing this type of work.83 This bill could thus have the effect of reducing the number of minorities registered to vote in the state. Similarly, S. 304, called the “Voter Citizenship Verification Act,” was introduced in January 2011. This bill would require proof of citizenship from those seeking to register to vote. One of the bill’s cosponsors is Senator Campsen, who was instrumental in passing the Voter ID Law.84 And, like the Law at issue here, proof-of-citizenship requirements disproportionately burden the poor and racial minorities.
C. Conclusion Taken together, the racially-charged statements and conduct of proponents of voter ID in other contexts, as well as legislation from the two most recent congressional sessions that threatened the rights of racial minorities, show a pattern among South Carolina lawmakers of stigmatizing the “other,” including and particularly African Americans. Racially-charged statements by leaders in the South Carolina government, and proponents of voter ID, show a deliberate attempt to polarize white voters by playing upon stereotypes of African Americans. Similarly, the proposed bills described above
81 See Legislative History for H. 4549, 119th Reg. Sess. (S.C. 2011-2012), available at http://www.scstatehouse.gov/sess119_2011-2012/bills/4549.htm. 82 See Douglas Hess and Jody Herman, Representational Bias in the 2008 Electorate, PROJECT VOTE (2009), table 3, available at http://www.voterparticipation.org/wp-content/uploads/2011/10/Project_Vote_- _Representational_Bias_the_2008_Electorate.pdf (showing that 12 percent of minority voters reported registering through a voter registration drive, whereas 6 percent of white voters reported doing so). 83 See Press Release, Brennan Center for Justice, National Council of La Raza, League of Women Voters of Florida, File in Court to Stop Anti-Voter Restrictions in Florida (Sept. 9, 2011), available at http://www.brennancenter.org/page/-/Florida%20Intervention%20Release%20-%20FINAL.pdf. 84 Legislative History for S. 304, 119th Reg. Sess. (S.C. 2011-2012), available at http://www.scstatehouse.gov/sess119_2011-2012/bills/304.htm.
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indicate the mindset of the lawmakers themselves. That the Law was considered and passed by the same legislators against this backdrop provides additional supporting evidence of a discriminatory purpose behind the Voter ID Law.
V. THE LAW’S LEGISLATIVE HISTORY 85
A. The Law’s Predecessor: H. 3418 (2009-10) The earlier version of the Voter ID Law, H. 3418 or the Voter ID Bill, was introduced in the House on February 3, 2009. H. 3418 was nearly identical to the Law with one notable exception: The Law does not provide for early voting; H. 3418 did. While a full review of the Voter ID Bill’s legislative history is beyond the scope of this report, I focus my analysis below on those aspects that bear on the question of purpose. The legislative history of the Voter ID Bill foreshadowed, in many ways, what came two years later when lawmakers took up the Law. The bill started in the House, where debate was intense. Opponents argued that the bill was a deliberate attempt to make it more difficult for minority, poor, elderly, student, or disabled residents to vote.86 Many also alleged that the purpose of the bill was to curb voter turnout in the black community.87 Moreover, the majority rejected several amendments that would have ameliorated the bill’s disparate impact. For instance, Representative David Weeks, the Chairman of the Legislative Black Caucus, proposed an amendment permitting a wide range of acceptable photo IDs.88 He proposed another amendment to allow a wide range of student IDs.89 These amendments were both tabled. At public hearings on H. 3418, many groups, including the League of Women Voters, the American Civil Liberties Union, Common Cause of South Carolina, and the
85 In drafting this section, I consulted the legislative histories available online at http://www.scstatehouse.gov/sess118_2009-2010/bills/3418.htm and http://www.scstatehouse.gov/sess119_2011-2012/bills/3003.htm. I also read the voluminous transcripts of the legislative floor debates that were provided to me by counsel, as well as transcripts of the depositions that had taken place before this report was finalized. In addition, I relied upon other public materials as cited herein. Due to the compressed timeframe of this litigation, I will continue to review materials as they become available and will supplement this report and my opinion if necessary. 86 Rep. Bill Clyburn, for example, vehemently opposed the bill as being discriminatory. 87 Todd Rutherford, for instance, maintained that the purpose of the bill was to suppress voting. See also Matt Long, House OKs Voter ID Bill Despite Black Caucus Objections, South Carolina Radio Network, Apr. 26, 2011. 88 House Journal, 118th Gen. Assembly, 1st Sess., at 1351-82 (S.C. 2009). 89 Id.
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NAACP, testified on the discriminatory impacts of the proposed law. 90 State officials like Marci Andino, Executive Director of the State Election Committee and Kristen Moore Lominack, of the South Carolina Department of Transportation, took no position. One would assume that these state officials would have supported the Law if they had perceived it to increase election integrity. In addition, the League was a joint signatory to a formal letter to Sen. Campsen and the Senate Judiciary subcommittee requesting that three public hearings be held around the state to give voters—particularly older, disabled, and minority voters—the opportunity to address the bill’s impact. Although a voter identification program costs over a million dollars to implement, the Subcommittee responded that the state could not afford to hold hearings. Opponents of the bill also held a Press Conference on March 25, 2009. There, they described the ways in which H. 3418 would discriminate against minority voters and other disadvantaged populations.91 Before the final vote on the bill on February 26, 2009, many House Democrats, including thirty members of the Black Caucus, walked out of the chambers in a highly unusual demonstration of protest. 92 Ultimately, the majority used the rare device of cloture to shut down any chance to offer additional amendments.93 Cloture is hard to obtain,94 and very rare in the South Carolina legislative process.95 The bill then passed largely along racial and party lines, with a vote of 65-14. The bill was sent to the Senate on March 3, 2009. As in the House, debate in the Senate was intense. Proponents argued that eliminating fees for identification cards would eliminate any barriers to voters in need of photo identification.96 Opponents retorted that registered voters who did not have proper ID were also unlikely to have the underlying documents necessary to obtain photo identification or the money to pay for
90 See SC_00044262; SC_00044263; SC_00044264; SC_00044265.
91 Groups Rallying Against SC Voter ID Bill, ASSOCIATED PRESS, Mar. 25 2009. 92 Clemmons Dep. at 182:19 – 183:7; Martin Dep. at 52:4-15; Harrison Dep. at 123:6-23 (testifying that he recalled only once instance in his 23 years in the South Carolina House that Legislative Black Caucus walked out); see also Gina Smith, Voter ID wins key approval: House Democrats walk out in protest, THE STATE, Feb. 27, 2009, available at http://www.freerepublic.com/focus/f-news/2195258/posts; Seanna Cox, South Carolina Legislative Panel Approves Voting ID Bill, ASSOCIATED PRESS, May 7, 2009. 93 Clemmons Dep. at 179:9-10. 94 Cleary Dep. at 14:18. 95 Cleary Dep. at 186:3-4. 96 Cox, South Carolina Legislative Panel Approves Voting ID Bill, supra.
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those underlying documents.97 Opponents also argued that travel to government offices to obtain ID would be costly and time-consuming for poor and disabled voters. And they highlighted the cost of the bill for the taxpayers of South Carolina, explaining that the bill would cost substantial sums on an annual basis. 98 Ultimately, the Senate passed an amended version of the bill by a vote of 36-2. The Senate version established an early voting period and eliminated any fees for DMV photo identification cards. After some back and forth between the chambers, the House requested a conference committee to resolve their differences. House representatives to the conference committee included Alan Clemmons and Harry Cato, both Republicans, and Harold Mitchell, an African American Democrat.99 Senate conference members were Chip Campsen, a Republican, Gerald Malloy, an African American Democrat, and Phillip Shoopman, a Republican. (Representative Clemmons and Senator Campsen were also members of the conference committee that considered H. 3003 two years later.) The committee recommended H. 3418, but also recommended that a federally- issued employee photo ID be included among acceptable forms of voter ID. On June 15, 2010, the House approved the conference report’s version of the bill by a vote of 69-47. That same day, the bill died in the Senate due to a Democratic filibuster. (Republican Jake Knotts, then-chair of the Senate Rules Committee, allowed the filibuster to continue by refusing to vote to “Set a Time Certain to Vote” under Rule 15). Therefore, the Senate moved to adjourn debate on H. 3418, and the 118th General Assembly adjourned sine die, effectively killing any bill not adopted by the General Assembly. As would be true of the Voter ID Law, throughout its consideration, proponents of H.3418 treated enactment of voter identification requirements as a matter of great urgency—and in some cases, openly trumpeted its potential to disenfranchise certain
97 Alice Watson, Voter ID Bill Just Another Poll Tax, THE STATE, Apr. 6, 2009. 98 Virginia Ghirardelli, Barbara Swift, & The League of Women Voters of Hilton Head Island, Voter photo ID a solution without a problem, ISLAND PACKET, Jan. 29, 2010. 99 Party affiliations can be found at http://www.scstatehouse.gov/house.php, where individual members can be searched for party identification. The same can be done for senators at http://www.scstatehouse.gov/member.php?chamber=S.
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voters. On March 20, 2010, a voter ID proponent, Lanneau Siegling, wrote to Rep. Clemmons: In my opinion there is no plan B… no fallback position and no compromise position… We must sign into law, this year, to go into effect whenever… a Voter ID Bill! I’m OK giving some window of early voting or absentee voting to get this done… I think a good ID bill blunts the gain for ‘them’ that they think they get in early voting… Tell them to stay in session until it’s done! … Voter ID… don’t come home without it! (emphasis added)
Clemmons responded: “I’m with you, Lanneau!”100
On June 26, 2010, another constituent, Joe Dugan, wrote to Clemmons to see whether the House could support the Senate version of the bill, and to express his concern “that the administration in Washington is destroying our heritage” and that the next election “may very well be the most important election in our lifetime.” Clemmons responded, in part, that “[w]e thought that we saw a great deal of bussed liberals and fraudulent early votes in the 2008 election, but with these kinds of early voting provisions it has the potential to be even worse!” Neither Dugan nor Clemmons cited any documented case of voter fraud. Instead, the subtext of the exchange was that voter ID would make it more difficult for some voters who turned out in the 2008 election to vote again in 2012.
B. The Voter ID Law: R54 (H.3003) Seventy-one South Carolina House Republicans, the all-white Republican Caucus, sponsored the Voter ID Law. It was passed by the South Carolina General Assembly on May 11, 2011, and signed by Governor Haley on May 18, 2011. As with the discussion of the Voter ID Bill, I focus my analysis on the parts of the legislative history that bear on the question of purpose. Act R54’s full legislative history can be found at Appendix C. 1. House Debate H. 3003 was introduced on December 7, 2010. From the very outset, the bill drew strong opposition from Democrats, and particularly from African American
100 SC_00000609-10.
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representatives. And from the outset, amendments that would have served to ameliorate the harsh effects of the law failed to pass. On January 26, 2011, the judiciary committee offered an amendment that, among other things, mandated the SEC to issue voter identification cards with photos to denote voters who cast absentee ballots in general elections, and to permit the state to charge a fee of $5.00 for the ID card. When Rep. Clemmons explained the amendment, Rep. Sellers spoke against the massive cost of the bill against the backdrop of South Carolina’s “historic, current crushing $830 million State deficit.”101 Sellers further explained that the law risked disenfranchising 178,000 qualified voters, and that its stated justification was inadequate. While it was supposedly meant to eliminate fraud, Sellers explained, South Carolina had only one allegation of fraud in the 2010 gubernatorial election, and the state already had laws criminalizing voter fraud.102 The amendment was adopted by a vote of 73-41. Other amendments—most of them designed to mitigate the burden of the bill on voters—were tabled. Among these were amendments to include State employee ID as an acceptable form of ID under the Law, exempting persons over age 65 or those with physical disabilities, and establishing an early voting period.103 Debate on the amended version of the Law was intense with numerous opponents of the bill, including several African American Democrats, voicing strong opposition to the Law’s anticipated effects on voters and its lack of justification: Rep. Sellers objected passionately and extensively to making it harder for citizens to vote: “Before our eyes, freedom and liberty is being dismantled.” As before, he explained that existing laws already criminalized voter fraud, that the current bill would not solve any of the voting issues that its advocates raised, and that it would impose an unjustifiable cost on the taxpayers.104
Rep. Leon Howard reiterated that the bill’s stated purpose could not justify its massive costs. He explained that even if there has been one fraud case, the need to stop it could not be reconciled with costs over $1 million or the
101 House Journal, 119th Gen. Assembly, 1st Sess., at 646-49 (S.C. 2011)(statement of Rep. Sellers). 102 Id. 103 See, e.g., Id. at 652-53 (proposed amendment by Rep. McEachern); id. at 656-57 (proposed amendment by Rep. Smith). Republican consultant Wesley Donehue later said in an article, “There’s been a false impression over there that Republicans will be hurt with early voting . . . .” Jim Davenport, GOP’s Early Voting Opposition May Nix Haley Agenda, Associated Press, June 12, 2011. 104 Tr. of House Debate, Jan. 26, 2011, at 9-21.
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damage to voting rights for which people had been subjected to water hoses, attacked by dogs, and even died.105
Rep. Christopher Hart issued a statement for the Journal. He questioned why South Carolina did not feel the need for voter ID over the course of its 212 year history until after an unusually high African American turnout in 2008 and the election of an African American president. 106
Rep. David Mack stated, “This is about politics, pure politics. The Republican Party benefits from a low voter turnout. The Democratic Party benefits from a better, high voter turnout. That’s what it’s all about. In 2008, our president brought a lot of black and brown people to the polls.”107
Rep. Joseph Neal reiterated the connection between the record turnout of African Americans and the push for voter ID. He reminded his colleagues that in the 2008 election, poll watchers harassed students from Benedict College—a historically black college—for using their student IDs, noting that the poll watchers did not give students at Clemson University or other schools any trouble.108
Rep. Robert Brown “vehemently object[ed] to H. 3003.” He explained that the bill suppresses the votes of the handicapped, the disabled, and citizens who have no access to transportation.109
Rep. J. Seth Whipper noted that the bill had no justification in fact. Since the bill was not needed, Whipper said, “I have a strong concern, a deep discomfort, and a heavy presumption that the effects of this legislation are deliberately disregarded, if not desired.”110
Despite these objections, the House Republicans were adamantly committed to passing H. 3003—and quickly. In particular, Clemmons wanted the House to pass the bill before the Senate to beat the Senate to the “crossover date.”111 Crossover usually refers to the requirement that a bill be passed in one body by May 1st, “the crossover date,” in order to be taken up in the regular course of business by the other body. Otherwise it takes a two-thirds vote to consider the bill. Clemmons and the House wanted to beat the Senate, and get the Bill to the Senate first.
105 Tr. of House Debate, Jan. 26, 2011, at 33-41. 106 Id. at 44-46. 107 Id. at 57. 108 Id. at 30. 109 House Journal, Jan. 26, 2011, at 673 (Statement of Rep. Brown). 110 House Journal, Jan. 27, 2011 (Statement of Rep. Whipper). 111 Dennis Dep. at 43:16 – 49:10; cf. Cleary Tr. at 143:16 – 144:6.
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On January 26, 2011, the House passed the bill along racial and party lines by a vote of 74-45.112 2. Senate Debate On January 27, 2011, H. 3003 was read for the first time in the South Carolina Senate and, in an unusual move, referred to the full Judiciary Committee as opposed to a subcommittee. On February 8 and February 9, 2011, two motions were made to make the bill a Special Order. “Special Order” is a means to deal with contested bills because, in general, the Senate only considers “uncontested” bills. A bill becomes contested one of two ways: 1) one or more Senators attach a Minority Report as a bill comes from committee; or 2) a Senator objects to consideration. When there is a contest, a bill typically will not come up unless the Senators get Unanimous Consent to remove the Minority Report or individual objectors “remove their name” from the bill. The exception is through a Special Order, which puts the contested bill in line. Ordinarily such a motion requires a two-thirds vote of Senators present and voting. In this case, the Senate failed twice to muster the two-thirds vote necessary to set H. 3003 for Special Order. Then, Larry Martin, as Chair of the Rules Committee, made the motion under the special provision requiring only a written majority vote of the Rules Committee. A motion to set for Special Order with only a majority vote of the Senate pursuant to Rule 33B is very unusual. On February 10, 2011, the bill was set for Special Order by a vote of 26-17. Thereafter, some amendments designed partially to mitigate the Law’s disparate effects failed, including an amendment that would allow student ID cards and that was tabled by a vote of 27-13 on February 16, 2011113 and an amendment exempting persons aged 65 or older that was defeated 17-25 on February 23, 2011.114 Sen. McConnell, however, was successful in proposing an amendment establishing early voting, loosening ID restrictions for persons older than 65 who lived in assisted living facilities, and loosening restrictions on absentee voting. The amendment was adopted 41-0.115
112 See House Journal, Jan. 26, 2011. 113 Senate Journal, Feb. 16, 2011 (Amendment No. P1). 114 Senate Journal, Feb. 23, 2011 (Amendment No. P4). 115 Senate Journal, Feb. 16, 2011 (Amendment No. P1).
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Opposition to the bill remained powerful in the Senate, with opponents emphasizing the law’s impact on more disadvantaged voters. Senator Sheheen spoke passionately against the bill: “You know, the whole goal of this bill, senator from Clarendon, the whole goal of this bill was to make it harder for people to vote. Let’s not pretend. We know it’s gonna happen. There are 170,000 people who vote currently, who are registered to vote currently, who do not have picture IDs. Why? Because everyone doesn’t live in the same world that we do. Everyone doesn’t cash…doesn’t cash their checks at their bank because they don’t have a bank account. I know y’all find that hard to believe, but there are lots of people in this state who don’t have a checking account. There are many people that don’t present an ID when they get on a plane because they’ve never flown and never will. There are many people who don’t do these things that everybody over here apparently thinks that everybody in the state does. They don’t. We know that a hundred…almost 170,000 of them do do one of the most fundamental, probably the most fundamental, thing that we do as citizens. They vote. And the estimates – and I hope you listen to this senators, ‘cause I think this is important; it’s why I’m pretty passionate about this bill – the estimates are that 40,000 of those people will never vote again.”116
Senator Creighton Coleman echoed Sheheen’s concerns, saying “It’s going to have a big impact upon the voters because of course we all know it is going to deter people from voting mostly with the elderly and the poor.” He also raised the question of how the law would impact someone who had their driver’s license suspended.117
Senator Gerald Malloy reiterated concerns of vote suprression, noting that the effect of the bill would be that voters, and especially nonwhite citizens, would be less able to participate in the political process. 118 He also criticized the flimsy justification for the bill: “the essence of this Bill, in total, is to discourage people from voting….And I submit to you that this is a solution to a non-problem.”119 In addition, he highlighted the potential for disparate enforcement of the law, asking whether he could be forced to vote with a provisional ballot if a poll worker decided he looked different from his photo ID, for example older with less hair. The answer was yes.120
Despite these repeated and insistent concerns about the effect of the law on voters, proponents of the bill held firm. Indeed, while remarks in favor of the bill—including by Senators Campsen and McConnell—stated that it was not the intent of the bill to stifle
116 Senate Journal, Feb. 23, 2011(Amendment No. P4). 117 Senate Tr., Feb. 23, 2011, at 77. 118 Senate Tr., Feb. 24, 2011, at 105-106. 119 Id. 120 Senate Tr., Feb. 24, 2011, at 122-23.
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voting, the supporters did not substantively address the minority’s concerns that it would have that effect. Likewise, while Sen. Campsen stated that the bill was necessary to address fraud, neither he nor other proponents of the law relied on any evidence that voter impersonation fraud was a problem in South Carolina. Indeed, the potential South Carolina fraud issues he did raise—absentee ballots fraud, voter intimidation, and buying votes—were not ones the legislation addressed, as Sen. Bradley Hutto pointed out.121 Ultimately, Sen. Campsen could not defend the position that South Carolina had an impersonation fraud problem, arguing instead that the South Carolina should protect itself against that possibility: “It is a preventive measure.”122 On February 24th, the amended bill, which faced strong opposition from the Senate Democrats, was adopted 24-15. 123 The Senate versions included provisions to soften the bill’s impact on voters that was not to the liking of proponents of a harsher Voter ID Law. A supporter emailed Representative Clemmons in response to the bill’s passage that he understood “it was weakened… everyone over 65 exempt… old dems will be voting when they’re 110…”124 Clemmons responded: “That’s unacceptable…” And the South Carolina GOP, which is not authorized by any candidate or candidate’s committee, circulated an email to its distribution list celebrating the Senate passage of the bill. It stated, “Though the version of the legislation that passed the House is preferable, deals have to be made in the Senate in ways they do not in the House to move the bill through the process. But we are counting on a stronger bill coming through conference committee.”125 The amended bill was returned to the House, which adjourned debate until April 6, 2011. At that point, the House amended the Senate bill to the previous House version. This House version did not establish any exceptions for elderly voters and did not include any early voting procedures.
121 See Senate Tr., Feb. 24, 2011, at 108-112 (Senator Campsen describes alleged electoral abuses); id. at 112 (Senator Hutto questions Campsen about how voter ID addresses those particular problems he raised). 122 Senate Tr., Feb. 24, 2011, at 128. 123 See South Carolina Senate Passes Voter ID, SOUTH CAROLINA STATEHOUSE BLOG (Feb. 25, 2011), http://sc.statehouseblogs.com/2011/02/25/south-carolina-senate-passes-voter-id-press-release/ 124 SC_00000857. 125 SC_00094030.
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Opponents of the bill in the House once again questioned the motivations behind it. Rep. Sellers said: Now, I know what is this about, in 2008 Barack Obama became president of United States and he scared the Republican Party and Tea Party to death. You have lines that stretched from polling booth to miles and miles around, and I know there is a fear that is deep down in the hearts of good republican colleagues.126
Likewise Representative Sellers and Representative Harry Ott questioned why an expired driver’s license should not be accepted if the purpose of the bill was just to verify a voter’s identity.127 Representative Mack answered that the bill’s true purpose was not to verify who is voting but to disfranchise people of color.128 On April 13, the Senate debated the bill. Several Senators expressed frustration that the House had stripped so many provisions from the Senate bill and particularly that the Chairman, Senator Raymond Cleary, was encouraging them to vote for the House bill despite its failure to include any of the Senate additions.129 A Senator from Charleston questioned why the Chairman was applying this pressure when usually if the Senate disagreed with a bill the House sent back, the House and Senate went to conference committee.130 Senator Sheheen answered the question, explaining that Republicans were circulating a request to their distribution list to have constituents call their Senators to pass the House bill. He stated, “We know that the political party is driving this debate, right? Nationally and locally.”131 Senators Malloy and McConnell engaged in a mini-filibuster to forestall a vote to concur with the House bill. Ultimately, the Senate failed to pass the House version of the bill, 28-15. The House insisted on its version and requested a conference. 3. Public Hearings The public was given limited opportunity to provide public testimony on H.3003. To my knowledge, there were only two public hearings on the bill. Both were held at the
126 Transcript of House Debate, Apr. 6, 2011, at 120. 127 Transcript of House Debate, Apr. 6, 2011, at 127-29. 128 Transcript of House Debate, Apr. 6, 2011, at 137. 129 Transcript of Senate Debate, Apr. 13, 2011, at 1-5. 130 Transcript of Senate Debate, Apr. 13, 2011, at 6-13. 131 Transcript of Senate Debate, Apr. 13, 2011, at 36-38; see also SC_00093980-93981; SC_00070510.
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subcommittee level and both were during the beginning of the session shortly after the bill was first introduced. On January 6, 2011, the Senate Judiciary Subcommittee held a hearing on Senate Bill 1, the companion bill to H. 3003 which contained a 15-day early voting period.132 Eight people testified in person.133 While some praised the Senate for the early voting provision, not a single person testified in favor of photo ID. Instead, opponents voiced concerns about the added hurdles the bill would place in front of voters, its high cost, lack of basis, and the disparate impact it would have on the elderly, students, minorities, low- income voters, and voters with disabilities. Carole Cato of the League of Women Voters presented legislators with data from the State Election Commission showing that “178,175 legally registered voters have no photo ID from the DMV. More than 27% of persons with no photo ID are 65 and over, some with disabilities; 26% are 45-64, some with disabilities; 36% are minorities; 64% are white; and almost all live in poor rural areas with little or no public transportation.”134 Others referred to the bill as “a solution in search of a problem.”135 And Patricia Calkins, a York County Poll Manager, expressed concern about the bill’s burden on poll workers.136 On January 13, 2011, the House Election Laws Subcommittee held its hearing on H. 3003. It lasted just 70 minutes.137 Cato was among five people who testified in person. She referred to the photo ID requirement as “an idea with no basis, shaky legality and high costs.” As she did before the Senate Subcommittee, she presented legislators with the State’s own statistics on the number of South Carolina voters who do not possess a photo ID and its disproportionate impact on minorities, the elderly, and the poor.138 4. Conference Committee Members appointed to the conference committee were Representatives Alan Clemmons, James Lucas, and James Merrill—not one House Democrat—and Senators
132 See SC_00044273. 133 See generally Hearing on S. 1 Before the S. Judiciary Comm., 119th Sess., Jan. 6, 2011 (audio recordings of hearing on file with counsel for Intervenor-Defendants). 134 SC_00095826. 135 Hearing on S. 1 (testimony of Bret Bursey, Progressive Network). 136 Hearing on S. 1 (testimony of Patricia Caulkins). 137 U.S. Exhibit No. 8 to Andino Deposition. 138 Hearing on H. 3003 Before the H. Election Laws Subcomm, 119th Sess. (S.C. Jan. 13, 2011) (testimony of Carole Cato, League of Women Voters of South Carolina) (audio recordings of hearing on file with counsel for Intervenor-Defendants); see also U.S. Exhibit No. 8 to Andino Deposition.
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Chip Campsen, Glenn McConnell, and John Scott (African American Democrat from Richland).139 (Clemmons and Campsen had also been on the conference committee for H. 3418, the predecessor to H. 3003.) Patrick Dennis served as Chief Counsel to the South Carolina House Judiciary Committee, and the committee elected Sen. McConnell as its chairman. In the conference committee, representatives of the House and Senate continued to disagree vehemently on the question of which IDs should be accepted. Clemmons reiterated that only identification that allows a passenger onto a plane would ensure secure voting and instill confidence in the South Carolina electoral process. The Senate perspective was that expired drivers’ licenses still confirm the voters’ identities; therefore, seniors who no longer drive should still be allowed to use expired licenses. While the House countered that identification needs to be kept current because one’s identity changes over time,140 House members had no explanation for refusing to include an expired driver’s license among acceptable forms of ID, while the SEC’s new photo ID registration card will never expire, or require voters to update their photograph. The Senate version of the bill also included State employee IDs to make voting more accessible and the law less costly because the State would not need to pay for SEC- or DMV- issued identification for State employees. The House was again intransigent, insisting that only forms of ID that would allow one to board a plane should be accepted. In particular, Clemmons argued that State employee IDs should not be permitted because there was no law regulating how employee IDs could be verified.141 The most contentious point in these deliberations was early voting. Senator McConnell explained the Senate wanted early voting to signal to the Department of Justice its good faith effort not to disenfranchise voters. Sen. Scott pointed out that the people of South Carolina had been asking for early voting for years. According to Sen. Scott, the question was not if South Carolinians needed early voting (they did); but whether they needed voter identification. While Rep. Merrill countered that early voting undermines the security that voter identification brings, Senator McConnell argued that
139 The House appointed a Democrat to the conference committee when it worked on H. 3418, but not to the committee working on H. 3003. 140 Conference Committee Tr. at 8-9. 141 Conference Committee Tr. at 9-17.
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the Senate version did more to secure the electoral process while making it more accessible than the House bill.142 Ultimately, the conference committee reverted to the House bill.143 Still today, Senator McConnell believes that the Senate bill is more likely to be consistent with the Voting Rights Act than the House bill that was passed.144 As committee members were congratulating each other on finishing the legislation, African American Sen. Scott made a statement. He believed the finished bill disregarded the minority perspective, and he informed the committee he would not be signing the bill. He lamented that the committee had turned a “deaf ear” to the demands of minority voters, such as early voting.145 On April 26, 2011, the House considered the conference committee report. Again opponents of the bill spoke out. Representative Sellers wanted to know what the price would be, but Clemmons declined to answer.146 Representative Hart spoke passionately about how the bill would dissuade legitimate voters from participating in the electoral process.147 Representatives Cobb-Hunter and Neal questioned the proponents’ commitment to electoral integrity given the lack of any response from the Republican leadership in the General Assembly to documented cases from the prior election of a thousand votes in one precinct and 800 votes in another not being counted due to problems with voting machines. Representative Neal asked where the “outcry for integrity” was over these documented cases in which citizens lost their votes.148 In the end, the House adopted the bill by a vote of 71-36, and returned it to the Senate. After debate, the Senate adopted the conference committee report by a vote of 26-16 on May 11, 2011.
142 Tr. of Conference Committee at 52-67 (stating that by adding a few days to early voting, the legislature would signal that “we were not chilling anybody’s right to participate”) 143 Some wording from the Senate bill was inserted, but overall, the finished product was the House bill. 144 McConnell Dep. 140:9 - 141:9, June 14, 2012; McConnell Dep. 189:17-192:21. 145 Tr. of Conference Committee at 77. Some majority members of the conference committee turned a deaf ear not only to the views of the minority but to dissenting voices within their own party. On April 7, 2011, Alan Clemmons received a response to one of his email bulletins from Joseph and Kathryn Martin, two constituents who explained that they see Voter ID “as a cleverly disguised attempt to reinstate the Jim Crow voting restrictions that have disgraced the history of this state” and that they were registered Republicans who vote. SC_00000924-25. These concerns appeared to have no effect on Clemmons’ resolve to pass a harsh Voter ID bill. 146 Tr. of House Deb. at 169-70 (April 26, 2011).. 147 Tr. of House Deb. at 178-199 (April 26, 2011).. 148 Tr. of House Deb. at 202-03 (April 26, 2011).,
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The Voter ID Law was ratified on May 17, 2011, and signed by the governor on May 18, 2011.
C. Conclusion From studying the legislative history, I have reached several conclusions that, taken together, allow me to ultimately conclude that the Law was motivated by a discriminatory purpose. 1. Every African American legislator and every legislator who represented an African American majority district opposed the bill adamantly, on the grounds that it discriminated against minority voters.149 2. There were several procedural irregularities and unusual incidents in the consideration of H. 3418 and the consideration and passage of H. 3003. First, in the debate over H. 3418, Representative David Weeks declared that opponents had been denied a meaningful role in the negotiations. Then, before the final vote on the bill on February 26, 2009, many House Democrats joined the members of the Legislative Black Caucus when they walked out of the chambers.150 Thereafter, the majority responded by amending the bill to make it even more restrictive, possibly in retaliation for the walkout. Second, on January 27, 2011, when H. 3003 was read for the first time in the Senate, it was referred directly to the full Judiciary Committee rather than to the subcommittee. Although not unheard of, this is an unusual procedure. Third, was the use of a Senate Special Order motion for both H. 3418 and H. 3003 by majority vote. As explained above, although such motions are permitted under Senate Rules, they are considered a very unusual course of action. Such Special Orders have been made five times in the last decade: in 2005, for a medical malpractice bill; in 2008, for an increased cigarette tax; in 2011, for an immigration bill; and in 2008 and 2010 for
149 See Kent M. Williams Aff. ¶ 3 (December 21, 2011); John C. Land, III, Aff. ¶ 3(Dec. 20, 2011); Gerald Malloy Aff. ¶ 4 (December 21, 2011) , attached to Supplemental Section 5 Cmt. Ltr. from Sen. Malloy to T. Christian Herren as Tab 33. 150 See, e.g., Gina Smith, Voter ID Wins Key Approval: House Democrats Walk Out in Protest, FREE REPUBLIC, (Feb. 27, 2009) http://www.freerepublic.com/focus/f-news/2195258/posts; Sarita Chourey, Hope fades for reform bill, AUGUSTA CHRONICLE (May 11, 2009) at A08 available at http://chronicle.augusta.com/stories/2009/05/11/met_523534.shtml; CONGRESS DAILY, South Carolina House Panel Advances Voter ID Bill (May 8, 2009).
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the voter ID bills. It is certainly striking that this rare procedural device has been used twice for voter ID. Fourth was the scarcity of public input. As noted above, very few public hearings were allowed. Moreover, the General Assembly refused to hold statewide hearings in 2009, despite The League of Women Voter’s request to do so. Moreover, the League also requested a meeting with the General Assembly Republicans to share facts on the legislation, but party leaders denied this request as well. Fifth, the bills were pushed forward by the Republican majority with unusual urgency.151 This is particularly unusual given the vehemence of the opposition and, as discussed infra, the lack of any evidence of impersonation voter fraud. 3. In addition to these procedural irregularities, a number of additional aspects of the legislative history point to the existence of a discriminatory purpose behind the Law: All warnings about the adverse effect on minorities of the bill were ignored without study. Although the legislators were provided with an SEC breakdown showing higher percentages of nonwhite voters who lacked DMV issued identification,152 the General Assembly did not ask the SEC its view on the effects of the bill,153 nor conduct any study on the bill’s effect on minorities or minority turnout.154 During deposition, numerous legislators admitted, in effect, to ignoring evidence of discriminatory impact.155
151 Among other places, the priority Republicans assigned to the passage of Voter ID was recognized in the press. See Seanna Adcox, SC Legislators Approve Voter ID Requirements, AUGUSTACHRONICLE (Jan. 26, 2011) available at http://chronicle.augusta.com/latest-news/2011-01-26/sc-legislators-approve- voter-id-requirements?v=1296079426. The urgency sometimes proved difficult to justify, however, given the other challenges confronting the state. Harrison Tr. 154:3-21 (agreeing that his campaign literature failed to list voter fraud as a priority and testifying that he was not sure that voter fraud was at the top of the list “along with the creating jobs and our economy and education and some of those issues.”) 152 Andino Dep. 69:3-71:18. 153 Andino Dep. 153:4-7; Andino Dep. 188:15-23; McConnell Dep. 188:14-189:15; Harrison Dep. 96:12- 25. 154 Andino Dep. 70:10-72:3 (SEC director was not asked for additional analysis regarding racial disparity of those lacking ID in consideration of H.3418); Andino Dep. 152:25 -153:7 (SEC director was not asked by anyone in General Assembly for her view on effect of photo ID on turnout or minority voting); Martin Dep. 77:18-79:13. 155 Supplemental Section 5 Cmt. Ltr. from Sen. Malloy to T. Christian Herren, Tab 33, Malloy Aff.at 3, SC_00056916 (statistical analysis of discriminatory impact was refused and ignored during legislative process); Dennis Dep.. 78:23-81:16 (testified that as Chief Counsel for the House Judiciary Committee, he drafted H.3003; acknowledged that although the VRA requires the consideration of possible disparate effect on minority voters, he did not review any data on the effect on minority voters from the DMV; did not request anything of the SEC; is not aware of anyone asking for such data from the SEC; and does not recall reviewing any other statistical information, studies, or analyses on impact on minorities); Lowe Dep. 82:3-85:21 (noting that he did not ask for or review any data on impact on racial minorities and thatno
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The legislature considered and excluded student IDs without persuasive justification, even though there are eight predominantly African American colleges in the State.
The House was adamant in not accepting the Senate version that would have allowed State employee IDs and early voting.156 It was widely believed that these additions would have mitigated the Law’s adverse effects on minorities. One, lawmakers believed that state employees are more likely to be minorities than the general population.157 Two, early voting would have allowed more time for those turned away for insufficient ID to obtain ID or learn about the reasonable impediment exception. Early voting is also thought to decrease long Election Day lines that cause people to turn away; with photo ID, even longer lines are expected because of the need to scrutinize photos.158
Whatever may have been the justifications for excluding student and state employee IDs, there is no plausible justification for the legislature’s failure to allow IDs issued by the DSS and other social service agencies to suffice under the Act. This decision mirrors the discrimination evident in Condon v. Reno,159 when the State eased registration procedures at the DMV but refused to allow voter registration at the DSS where 70-80% of the clientele was minority. Whether that omission in 1995 was purposely discriminatory or not, the State’s 2011 determination to exclude social service agencies again after being put on notice by a federal court suggests intentionality.
The cost of implementation for Act R54 is $535,000 initially and an additional $100,000 annually, plus lost DMV fees and revenue for the Department of Transportation.160 Indeed, the DMV wrote a letter to Sens. McConnell, Campsen, and Scott expressing concerns regarding H.3003’s “unfunded mandates” that “cause DMV to eliminate mission essential functions due to funding constraints” and “increased workloads for an organization that is currently only resourced at 80% strength.”161 And Senator McConnell testified
proponents of the bill argued that it would not have disparate impact on racial minorities); Lowe Dep. 129:23-130:15 (testified that he had no contact with SEC at all prior to bill passing); Limehouse Dep. 45:12-47:10 (testified that he agreed that it was important to consider the impact of legislation on racial minorities, but although he heard oral argument on burden to racial minorities, he was unpersuaded by them. He reviewed no data or studies.); Limehouse Dep.. 43:23-44:15 (testified that although he did not consider any burdens of the Act, he was confident that it did not pose any burdens at all). 156 Peeler Dep. 38:17-24; McConnell Dep. 132:24-133:3. 157 McConnell Dep. at 201:10-22. 158 Peeler Dep. 38:5-7; Harrison Dep. 115:19-116:1; Harrison Dep. 117:8-13; Cf. Andino Dep. 189:7-18; and Andino Dep. 191:12-23 (discussing virtues of early voting in decreasing waiting time and as a factor in increasing turnout). 159 913 F.Supp. 946 (D.S.C. 1995). 160 Andino Dep. 80:16 -82:1 (testified that the cost of the bill is $535,000 initially); U.S. Andino Ex. 9, SC_00098016; DMV Response to Sen. Hutto FOIA Request at 3, SC_00001746 (estimating $651,883 in lost revenues for Highway Fund and $667,525 in lost revenues to DMV for issuance of free ID cards); Statement of Estimated State Revenue Impact, Feb. 2, 2011, SC_00077538 (estimating $507,360 in reduction of revenue to highway fund based on free issuance of cards). 161 SC_00096418.
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that these costs were being imposed while higher education and senior citizen services are underfunded.162 That the legislature chose to ignore the massive costs of voter ID at a time of budget crisis defies logic and points toward an improper purpose.
The 2011 conference committee had only one member of the Democratic party, Senator John Scott.163 The House did not appoint any Democrat to the committee. While not illegal, this decision is hardly a model of good government, and differed drastically from the legislature’s bipartisan approach in 2009. In 2011, this closed circle turned a blind eye and deaf ear to anyone in opposition.
At conference on the bill, the House promised to introduce early voting in a separate bill after ID was passed, but it never did. The Senate sent the House such a bill, and it died without action.164
VI. THE ANTICIPATED EFFECT OF THE CHANGE ON MINORITY CITIZENS The history and context for the passage of the Voter ID Law demonstrate that South Carolina lawmakers anticipated the disproportionate effects it would have on minority voters. In response, rather than expanding the types of acceptable IDs to permit state employees, students and seniors to vote or increasing the number of days available for voting, South Carolina lawmakers rejected every opportunity to make the Voter ID Law more equitable. The combined legislative history, South Carolina’s well-understood demographics and public media reports lead to no other conclusion than that the legislature understood the potential discriminatory effect and passed the Law anyway. First, the very same legislature that passed the Voter ID Law had studied the state’s demographic makeup for the redistricting following the decennial census; the legislators were well aware of racial bloc voting patterns and the number and proportion of African Americans in each district. See supra Section I. Indeed, the South Carolina government website links to reports and tables of population statistics by race and geographical locations, making clear that the legislators who supported H. 3003 had detailed knowledge of each electoral district’s demographics and the distribution of those
162 McConnell Dep. 194:11-20. 163 See generally Conference Committee Transcript. Cf. Dennis Dep. 54:4-54:10 (noting that quorum of either committee must meet publically); S.C. Code Ann. § 30-4-80(B) (1976) and Senate Rule 19(g)). Dennis Dep. 55:11-18 (noting that Senate conferees amenable to rejecting early voting, no real disagreements in committee except for Scott on early voting). 164 McConnell Dep. 143:7-20; McConnell Dep. 161:10-16.
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districts in the state.165 In one telling instance, Rep. Lowe testified that a House-drawn map reducing the percentage of black voters in his district by 2% (as compared to the Senate’s map) would give him a definite advantage in getting re-elected. Indeed, Lowe wrote an opinion editorial in which he pushed for the House map,166 and admitted that the reduction of black voters could be the “deciding factor.”167 Other documents from the Florence County Republican Party also call for a 7th District with lower Black Voting Age Population and indicate that the county party may have had “issues” with attracting people of color to their party.168 Similarly, there is no question that lawmakers were aware of several predominantly African-American colleges in the State when they made the determination not to accept student IDs.169 See infra. Second, in the State of South Carolina, the difference in the socioeconomic position of African Americans and whites is long-standing and well-documented. On the whole, white South Carolinians show significantly higher levels of important socioeconomic indicators (such as education and economic prosperity) than their African American counterparts.170 The evident lower socioeconomic status of African Americans means not only that they are disproportionately likely to lack the ID required by the law, but also that they would face disproportionate hurdles in seeking to comply with it. Yet lawmakers turned a blind eye to disproportionate lack of ID ownership among African
165 District Population Chart, S.C. Senate Judiciary Comm., Mar. 29, 2011, http://redistricting.scsenate.gov/Exhibits/Exhibit%2015%20- %20DISTRICT%20POPULATION%20CHART/Exhibit%2015%20- %20S591PlanComp.2010%20Census%20Pop.pdf. 166 Lowe Dep. Intervenors’ Ex.2. 167 Lowe Dep. 90:11-98:20. 168 See, e.g., from FLORENCE COUNTY REPUBLICAN PARTY (SC), FACEBOOK: Stephanie Rawlinson, “We Must Stand Up for the Pee Dee!!!” June 23, 2011 at 11:43 pm; “Florence County Council Seats Up for Election in 2012,” Nov. 2, 2011 at 11:31 am; Bill Pickle, Chairman, Florence County Republican Party, “Florence County Republicans Call to Action!!! June 2011,” June 13, 2011 at 4:05 am. 169 McConnell Dep. 200:20 – 201:9, June 14, 2012; Press Release, Sen. Lindsey Graham, U.S. Senate Recognizes National Historically Black Colleges and Universities Week (Sept. 14, 2010) (S.C. home to eight HBCUs); MILES TO GO: SOUTH CAROLINA, SOUTHERN EDUCATION FOUNDATION 14 (2002), http://www.che.sc.gov/AccessEquity/A&E/Miles%20To%20Go-%20Final%20Book.pdf (as of 2000, 26% of all African-American undergraduates enrolled in one of these eight historically black colleges and universities). 170 See, e.g., Cleary Dep. at 205 (in rural areas where a greater percentage of minorities live you tend to have poorer health and earlier death rates, less likely to get a college education); TOBY MOORE & SARA LAWRENCE, CREATING GREATER OPPORTUNITY IN SOUTH CAROLINA’S I-95 CORRIDOR: A HUMAN NEEDS ASSESSMENT, RTI INTERNATIONAL (2009).
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Americans while they considered the bill.171 Indeed, Rep. Brannon, one of the Law’s co- sponsors, testified that despite discussions of disparate ID ownership during the floor debates, he never requested data on the issue. Brannon “didn’t feel like [he] needed that information to cast [his] vote.”172 These facts were evident to the Legislature considering the ID Law not only from its familiarity with demographic data from the redistricting process but also because: (1) the ID Law’s disparate impact was repeatedly highlighted during the floor debates; and (2) numerous advocates brought these socioeconomic disparities to its attention. For instance, Senator Malloy expressly told his colleagues that a disproportionate “36% of those lacking state-issued photo ID’s are non-whites.”173 Carole Cato of the League of Women Voters echoed this statistic, and presented legislators with data from the SEC to confirm that “178,175 legally registered voters have no photo ID from the DMV” and that 36% of those voters are minorities. The League of Women Voters also provided a detailed handout to every lawmaker outlining its reasons for opposing the ID Law,174 and arguing: [P]hoto ID would impose a number of barriers on voters, particularly seniors, minorities, and people who have disabilities, live in rural communities, and have lower incomes. These voting barriers raise serious questions of compliance with the Help America Vote Act and the Voting Rights Act.
Third, concerns about the disparate effects on the African American population appeared repeatedly in the press. For instance, the Augusta Chronicle wrote on June 16, 2010, “Democrats also oppose requiring voters to show a picture ID, saying it would
171 Martin Dep. 78:2 – 84:24, June 13, 2012 (it would not be a problem if minorities were 30% of the population but 36% of those without ID; only 40-50% would be a problem); see also Martin Dep. at 176:8 – 178:23 (considered retrogression statistics for reapportionment but not voter ID)); Limehouse Dep. 54:4- 56-9; Lowe Dep. 85:2-21 (no proponent of the bill argued it would not have disproportionate effect on racial minorities), 115:2-116:25; Cleary Dep. at 206 (saying that “there may be a tendency for that group of minorities . . . not to have a photo ID, but that doesn’t mean that they can’t take five minutes, 20 minutes to get an ID” and that transportation is not a hurdle in today’s society); Peeler Tr. at 94; Brannon Dep. 65:8 – 68:18 (not requesting statistics on impact of bill on minority voters because “I didn’t feel like I needed that information to cast my vote”) 172 Brannon Dep. 65:8 – 68:18. 173 S. Journal, 119th Sess. (statement of Sen. Gerald Malloy). 174 Undated one page sheet on League of Women Voters letterhead. In possession of author; see also SC_00044252-55.
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suppress the vote of minority, disabled and poor residents who don’t have such ID. They called it a backlash to the election of President Obama.”175 Another article stated, [T]here’s little doubt that the photo ID provision would be a burden, and perhaps an onerous one, for the most downtrodden segment of the state’s electorate. The poor, the elderly, the handicapped—folks who already lack much of a voice in state politics—would likely vote in even smaller numbers if (or rather when) this bill is enacted.176
The Augusta Chronicle again brought up the issue in January 2011:
[H]ours-long debate echoed the contentious arguments of last year. ….Democrats countered that it would suppress the vote of minorities, the disabled and elderly who don't have such IDs. They compared the requirement to Jim Crow-era laws in the South that kept blacks from voting. And they accused Republicans of pushing for the bill following the election of President Barack Obama.177
And, James Davenport in an AP article on April 20, 2011, stated, “Republicans say the bill is about voter integrity. Democrats say it suppresses turnout by minority, disabled and elderly voters who lack a license and they argued educating people on the measure and supplying a free photo ID will be expensive.”178 After the Act was passed Davenport published another article examining the effects of the law and its disproportionate impact on minorities. Davenport analyzed precinct-level identification data and concluded that “South Carolina’s new voter photo identification law appears to be hitting black precincts in the state the hardest.”179 That article highlighted the precincts surrounding Benedict College and South Carolina State
175 Seanna Adcox, SC House approves photo ID, early voting proposal, AUGUSTA CHRONICLE, June 16, 2010, available at http://chronicle.augusta.com/news/metro/2010-06-16/sc-house-approves-photo-id-early- voting-proposal. (last accessed June 19, 2012). 176 Editorial, Voter I.D. bill: A solution in search of a problem, SCNOW, Feb. 8, 2011, http://www2.scnow.com/news/2011/feb/08/editorial-voter-id-bill-solution-search-problem-ar-1439340/. (last accessed June 19, 2012). 177 Seanna Adcox, SC legislators approve voter ID requirements, AUGUSTA CHRONICLE, Jan. 26, 2011, available at http://chronicle.augusta.com/latest-news/2011-01-26/sc-legislators-approve-voter-id- requirements?v=1296079426. 178 Jim Davenport, SC legislators reach agreement on voter ID bill, ASSOCIATED PRESS, Apr. 20, 2011, available at http://www.goerie.com/apps/pbcs.dll/article?AID=/20110420/APN/1104201380 (last accessed June 19, 2012). 179 Jim Davenport, Voter ID Law Hits Black Areas: 1,977 Nonwhite Voters Lack State-Issued Photo, The Post & Courier, Oct. 19, 2011, available at http://www.postandcourier.com/article/20111019/PC1602/310199937.
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University, both historically black schools, where nearly one-half and one-third of registered voters, respectively, lack state-issued photo identification.180 Thereafter, South Carolina Senate GOP Caucus Director Wesley Donehue linked to Davenport’s article and tweeted, “Nice! @jimdavenport_ap proves EXACTLY why we need Voter ID in SC.”181 After public criticism, Donehue claimed that his Tweet was taken out of context—that his point was actually those without state-issued identification in the majority-black precincts in Davenport’s article did not lack state-issued identification because they are black but because they are out-of-state students.182 Even so, it is hard to ignore the racial undertones of Donehue’s reference.183 Fourth, the law by its design vests substantial discretion and power in local officials and poll workers. As SEC Executive Director Marci Andino testified, elections are conducted by municipal and county election commissions, and the SEC does not exercise any direct control over these commissions.184 As a result, the SEC could not guarantee that poll managers would ask those lacking acceptable identification under the Act if something beyond their control had prevented them from obtaining such identification—which is her understanding of a “reasonable impediment.” On the contrary, county election commissioners could instruct poll managers not to ask any such questions concerning any “reasonable impediment” that may have prevented a voter from obtaining ID.185 By law, if a county board of elections disagrees with an interpretation or directive of the State, the SEC has no authority to compel that county to follow the SEC directive.186 Historically, the vesting of such substantial discretion in local officials and poll workers has led to abuse and discrimination.187
180 Id. 181 Wesley Donehue, TWITTER (Oct. 19, 2011, 9:32 AM), https://twitter.com/wesleydonehue/status/126697172187095040. 182 Ryan J. Reilly, S.C. GOP Operative: AP Story Showing Impact of Voter ID On Blacks ‘Proves EXACTLY’ Why Law Is Needed, TPMMuckraker (Oct. 20, 2011, 3:15 PM), http://tpmmuckraker.talkingpointsmemo.com/2011/10/sc_gop_operative_ap_story_showing_impact_of_vo ter_id_on_blacks_proves_exactly_why_law_is_needed.php. 183 Davenport, supra. 184 Andino Dep. 180:7-24. 185 Andino Dep. 206:1-207:1. 186 Andino Dep. 135:4-18. 187 Burton et al., THE QUIET REVOLUTION, supra. Indeed, during legislative debates, Representative Weeks pointed to the state’s history—in the past potential voters were asked to explain part of the constitution to the registrar’s satisfaction—and warned that H.3003 vested too much discretion in local officials. House Debates Tr., January 26, 2011, at 47.
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South Carolina’s history suggests that vesting excessive discretion at the local level poses a risk of discriminatory implementation. One reason is that significant appointment powers reside with the state legislative delegations, which “continue to control county boards of registration and elections, precinct line and method of election and district lines for many boards of school trustees.”188 According to a recent study of voting rights in South Carolina, the “involvement of state legislators in local affairs removes African American citizens from participation in critical decisions as discriminatory changes are proposed.”189 Indeed, as noted above, a federal district court found “significant evidence of intimidation and harassment” of African Americans at the polls in 2003, including by state-authorized poll managers.190 And, Rep. Lowe testified that poll managers are chosen not for their qualifications, but because they are family members or friends of poll clerks.191 This cronyism has the potential to magnify the disenfranchising effects on minority voters. Fifth and finally, legislators have failed to take several self-evident steps that could serve to ameliorate some of the Voter ID Law’s consequences. These failures include the following: SEC Executive Director Marci Andino said the Law’s “reasonable impediment” exception was necessary to avoid disenfranchising eligible voters.192 And, legislators have testified that they too believe that the “reasonable impediment” provision is critical.193 But, to work, this prevision requires an affidavit signed under penalty of perjury for voters to make use of it, which in turn requires a notary.194 While at least some believed that the SEC would provide notaries,195 lawmakers took no affirmative steps to ensure that this would happen. And indeed, the SEC confirms that there are no plans in place to have notaries at the polls,196 creating yet another risk that voters’ affidavits will not be honored and that this provision will fail to ameliorate the disparate impact of the Law on African Americans. This result should have been foreseeable to legislators who failed to put any provisions in place to
188 Ruoff & Buhl, Voting Rights in South Carolina, supra. 189 Id. 190 Charleston County, 316 F. Supp. at 286 n.23. 191 Lowe Tr. at 50:1-12. 192 Andino Tr. at 161:13-15. 193 Harrison Dep. 106:16-107:1, June 12, 2012 (testifying that he would not have supported R54 absent the “reasonable impediment” provision). 194 See State v. McKnight, 352 S.E.2d 471, 472-3 (S.C. 1987). 195 Clemmons Dep. 68:10 – 69:3, June 11, 2012; Harrison Dep. 58:17-59:14. 196 Andino Dep. 156:7-19; Andino Dep. 157:12-17; Whitmire Dep. 164:2-21, June 8, 2012.
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ensure that affidavits signed by voters would be notarized, as required by South Carolina law.
The General Assembly has, to date, failed to provide adequate funding to implement various provisions of the ID Law. Most significantly, although legislators have testified that the education program was critical,197 the State has failed in numerous respects to prepare for the educational program and for the training of poll workers and commission and board members.198
The legislature chose to require that IDs be “valid,” although the SEC believes that the meaning of this term is uncertain, that voters could be confused by it, and that poll workers will need guidance on the meaning of validity.199 The SEC currently has no plans to provide such guidance.200
The failure to ensure the Law’s responsible implementation have detrimental consequences for all voters, and will most substantially burden African American voters who are less likely to possess acceptable IDs. The legislature chose not to address these foreseeable issues implicating fair enforcement of the law, increasing the likelihood that the Voter ID Law will disproportionately injure minority voting rights. This lends support to the inescapable conclusion that a discriminatory outcome was intended. VII. EVIDENCE OF PRETEXT IN THE LAW’S STATED PURPOSE The primary justification offered for the ID Law by its chief proponents is to combat voter fraud and thus enhance public confidence in the State’s electoral system. Representative Clemmons, for instance, stated during the preclearance process that “[o]pponents of this bill often claimed …there were no instances of voter impersonation prosecuted in South Carolina, claiming that H. 3003 was a solution in search of a
197 Harrell Dep. 132:4-13, June 13, 2012. 198 Whitmire Dep. 70:22-74:22; Whitmire Dep. 82:5- 91:17; Whitmire Dep. 95:16- 96:8; Whitmire Dep. 98:1- 99:11; Whitmire Dep. 99:17- -101:22; Whitmire Dep. 102:8-103:21; Whitmire Dep. 104:24--- 113:21; Whitmire Dep. 114:1-118:6; Whitmire Dep. 128:21-132:23; Whitmire Dep. 138:17-140:13 (summarizing this point). 199 Whitmire Dep.; 125:1-126:10; Whitmire Dep. 127:11- 128:3; Whitmire Dep.170:10-175:1. Further, Military IDs are just one example of the inadequacy of the training planned. The only example poll workers will be shown in training is a photo of a single military ID (just the front) in a power point presentation. Whitmire testified that any military ID qualifies, although he did not know how many there are and there are no plans to train poll workers how to distinguish real from fraudulent military IDs, nor as to what qualifies as a military ID. Whitmire Dep. 118:11--122:11. Research has so far uncovered 17 different military ID cards, including a veteran ID card, which is not a state or federally issued ID card, but one which Whitmire said would qualify. In addition, it appears that the state’s “final” rules are not truly final. The state has already changed the temporary card to a card that does not expire, and no longer refers to it as temporary. Whitmire Dep.76:14-79:14. Moreover, the materials submitted for preclearance are apparently subject to change at any time. Whitmire Dep.. 91:11-92:2. 200 Whitmire Dep. 125:12-126:10.
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problem. In my years in South Carolina politics I know quite the opposite to be true ….”201 Senator Campsen argued that “you instill confidence in the process by requiring a voter ID.”202 Despite these representations, there is no evidence of in-person impersonation fraud in South Carolina—the only type of fraud that voter ID addresses. Indeed, a complete review of the floor debates about the ID Law yields not one verified example in South Carolina’s entire history. Representatives Hart and Howard summarized the legislative history during floor debate in the House: It is my understanding that we did not have anyone to come in to our hearings and testify that there was a voter fraud or any indications or any charges of voter fraud within the two years of having these public hearings . . . . There’s just no incidence of voter fraud or wrongdoing in the state of South Carolina. It just does not exist. I haven’t seen it, I haven’t heard about it, I haven’t read about it, I haven’t received any calls, any emails, any faxes, it just doesn’t exist in this body, in this state…
In deposition, Rep. Clemmons agreed, and admitted that no instances of impersonation fraud were brought into the record during debates on the ID Law. Moreover, to this day, Clemmons is aware of no convictions for voter impersonation fraud or any potential evidence of voter impersonation fraud other than two or three unverified anecdotes.203 Indeed, in June 2010—just months before introducing H. 3003—Clemmons had a telling exchange with Walter Whetsell of Starboard Communications, a political consulting agency. Whetsell sent an article about voting irregularities in the Lee County Council race, noting that the article was “in reference to our voter id conversation from a year ago where I said we needed a boogey-man.” Clemmons enthusiastically replied “Good stuff!” 204 That voter fraud was a “boogey-man” and not a reality has been confirmed repeatedly during the course of this litigation. Over and over, the State’s witnesses, including Marci Andino, testified that there is—quite simply—no evidence of in-person
201 Letter from Alan Clemmons, June 28, 2011, SC_00077402. 202 Senate Floor Debate Tr. 110. 203 Clemmons Dep. 41:9-47:18. 204 SC_00000637.
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voter fraud.205 Witnesses also consistently agree that there is no reason to believe there will be an increase in voter fraud in the future, even without the ID Law.206 The lack of evidence of in-person impersonation fraud is not surprising. As the ID Law’s top proponents recognize, heavy penalties for all types of voter fraud already exist, including up to three years’ imprisonment and $1,200 fines for voter impersonation.207 In addition, several other factors prevent fraud—for instance, poll workers tend to know voters because they are hired locally; signatures get matched to registration cards; and, to successfully commit fraud, a person would have to count on the real voter not showing up to vote. In short, in-person voter impersonation would be extremely difficult to accomplish under existing laws, and would require both a substantial number of steps and fortuitous circumstances in order for the crime to go undetected.208 By all accounts, the heavy penalties—coupled with the practical difficulties of getting away with the voter impersonation—have successfully deterred in-person voter impersonation. Unsurprisingly, the current system is viewed highly by South Carolina voters: In the Election Commission’s post-election surveys, according to Andino, South Carolinians have consistently expressed confidence in their existing electoral system.209 On top of addressing a non-existent voter impersonation problem, the ID Law is oddly under-inclusive—it applies only to in-person voting but not mail-in voting.210 Voters can still register by mail and vote by absentee mail-in ballots and never show photo identification.211 If the ID Law was a serious attempt to combat potential voter fraud, it would absolutely apply to voting by mail. As the record shows, while voter fraud in all forms is extremely rare, most of the rare incidents that do occur are through
205 Andino Dep.. 52:23 – 53:21, 59:15-17, 62:23 – 63:3 (no confirmed or substantiated evidence); U.S. Andino Ex. 5, SC_00070975; McConnell Dep. at 45:4-8; Peeler Dep. at 22:4-5; Harrison Dep. at 33:1-6; Clemmons Dep. at 41:6-21, 42:3-19, 44:21 – 45:1, 47:14-18, 51:19 – 52:4; Martin Dep. at 37:13-25; 41:15- 19, June 13, 2012; Cleary Dep. at 28:6-9, June 14, 2012; Harrell Dep. at 37:25 – 38:5) Whitmire Dep. at 44.14-46.7; 49.5-49.11; 51.5-51.15; 53.5-54.7; 56.8-58.3 58.18-59.7; 163:4-5 (no credible allegations or confirmed instances of impersonation fraud, nor basis to believe it has ever occurred) 206 Andino Dep. 143:11-25; Harrison Dep. at 95:3-8 (no reason to believe there will be an increase in voter fraud in the future); McConnell Dep. at 148:6-11 (same)). 207 S.C. Code Ann. § 7-25-120; McConnell Dep. at 150:3-6. 208 Andino Dep. 138:17-138:21 (poll managers required to be local); Andino Dep. 144:9 – 146:12 ; McConnell Dep. at 148:12-150:2. 209 Andino Dep., 61, 142, 177-78. 210 Andino Dep., 175. 211 Andino Dep., 187-88.
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mail-in ballots. Indeed, in one notorious election, a McCormick County clerk committed voter fraud through use of fraudulently obtained and submitted absentee ballots.212 Notably, this fraudulent act by a county official was a “significant factor” in an already “heated election,” helped the white incumbent defeat his black opponent.213 Similarly, lawmakers also ignored recent evidence of actual election administration problems that could be addressed with legislation. As noted above in the discussion of legislative history, Representatives Cobb-Hunter and Neal presented documented cases from the prior election of faulty machines losing hundreds of votes.214 Together, all of this evidence strongly suggests that the motivations for introducing and passing the ID Law’s were different from those stated by the Law’s supporters. Indeed, Marci Andino testified that she recalled public testimony to the effect that the purpose of the ID Law was not to prevent voter fraud but rather “to suppress votes, voter turnout, maybe,”215 and she ultimately took no position on whether the ID Law should be precleared.216 If the Law were truly intended to combat fraud and would be effective in doing so, one would expect the SEC Executive Director to enthusiastically support its implementation.
212 Lee Brandy, McCormick Registrar Indicted, COLUMBIA THE STATE, September 14, 1995, B3; Area briefs: Board denies parole in Richey murder case, AUGUSTA CHRONICLE, September 23, 1999, available at http://chronicle.augusta.com/stories/1999/09/23/met_270915.shtml (last accessed June 19, 2002); Across the area, AUGUSTA CHRONICLE, July 27, 2000, available at http://chronicle.augusta.com/stories/2000/07/27/met_293725.shtml (last accessed June 19, 2012). 213 Brandy, McCormick Registrar Indicted at supra. Ruoff & Buhl, Voting Rights in South Carolina, supra. 214 House Debate Tr., Apr. 26, 2011, at 202-03. 215 Andino Dep. 174-75. 216 Andino Dep. 216:20–217:7.
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APPENDIX A Case 1:12-cv-00203-CKK-BMK-JDB Document 157-5 Filed 08/08/12 Page 53 of 151
ORVILLE VERNON BURTON
The Strom Thurmond Institute of Government & Public Affairs Clemson University, Perimeter Road Clemson, SC 29634-0125 Tel. O -864-656-1058 C-217-649-0608 fax -864 -656-4789 h-864-543-2552 [email protected] http://vburton.ncsa.uiuc.edu http://www.ageoflincoln.com
Military Service: 1969, 1974 U.S. Army, Honorably Discharged as Captain, 1977
Education: 1976, Ph.D. Princeton University (1969, B.A. Furman University) Ph.D. dissertation: "Ungrateful Servants? Edgefield's Black Reconstruction: Part I of the Total History of Edgefield County, South Carolina." Advisors Sheldon Hackney and James McPherson
Academic Positions: Director Clemson CyberInstitute, 2010- Associate Director for Humanities, Arts, and Social Sciences, Clemson CyberInstitute, 2010 Professor Computer Science, Clemson University, 2011- Professor of History, Clemson University, 2010- Burroughs Distinguished Professor of Southern History & Culture, Coastal Carolina University, 2008-10 University of Illinois at Urbana-Champaign (UIUC), 1974-2008 2009- Chair, Advisory Board for Institute for Computing in Humanities, Arts, and Social Science (I-CHASS) at University of Illinois 2004 – 09 Founding Director I-CHASS 2008 Emeritus University Distinguished Teacher/Scholar and Professor History, African American Studies, and Sociology 2006-Professor African American Studies 1989- Professor, History 1989- Professor, Sociology 1982-1989 Associate Professor, History 1976-1982 Assistant Professor History 1974-1976 Instructor 1985- Faculty Affiliate, African American Studies and Research Program 1986- Campus Honors Program 1988- Graduate College Statistics Faculty National Center for Supercomputing Applications (NCSA) 2002- Associate Director, Humanities and Social Sciences 1993-2002 Head, Initiative for Social Sciences and Humanities 1986- Senior Research Scientist Princeton University 1972-74 Assistant Master, Woodrow Wilson Residential College 1971-72 Instructor, Mercer County Community College, NJ College of Charleston 2001- Executive Director, Program in the Carolina Lowcountry and the Atlantic World (CLAW) 1987 Governor’s School of South Carolina, Professor of History, Summer 1987
Publications: Books: The Age of Lincoln. NY: Hill and Wang, 2007. (Audio: Blackstone Audio Books). Paperback edition 2008. Selection for Book of the Month Club, History Book Club, Military Book Club. Paperback July 2008. The Age of Lincoln was nominated by Farrar, Straus, and Giroux for the Pulitzer Prize. Three historical associations featured sessions on the book, Association for the Case 1:12-cv-00203-CKK-BMK-JDB Document 157-5 Filed 08/08/12 Page 54 of 151 Burton, page 2 Study of African American Life and History, 2008; Social Science History Association, 2008; The Southern Intellectual History Circle, 2009. (with Judy McArthur) "A Gentleman and an Officer": A Military and Social History of James B. Griffin's Civil War. N.Y.: Oxford University Press, 1996; second printing 1999. In My Father's House Are Many Mansions: Family and Community in Edgefield, South Carolina. Chapel Hill: University of North Carolina Press, 1985 (paperback edition 1987; 5th printing 1998). In My Father's House was nominated by the University of North Carolina Press for the Pulitzer Prize. Two Historical Associations featured this book in sessions at their annual meetings: Social Science History Association, 1986; Southern Historical Association, 1987. Air Conditioning and the Voting Rights Act: The Voting Rights Act of 1965 in Historical Perspective. Stice Lectures University of Washington. Seattle: University of Washington Press, expected 2014. (with Wilbur Cross), foreword by Emory Shaw Campbell, Penn Center: A History Preserved, a Culture Shared, a Future Changed (Athens: University of Georgia Press, expected 2013). Editor, The Essential Lincoln. NY: Hill and Wang, 2009. (edited with David O’Brien) Remembering Brown at Fifty: The University of Illinois Commemorates Brown v. Board of Education. Urbana: University of Illinois Press, 2009. (edited with Winfred B. Moore, Jr.) “Toward the Meeting of the Waters: Currents in the Civil Rights Movement in South Carolina during the Twentieth Century. Columbia: The University of South Carolina Press, 2008; paperback 2011. Editor, Slavery in America: Gale Library of Daily Life, 2 vols. New York, Detroit: Gale Cengate Learning, 2008. Editor, Computing in the Social Sciences and Humanities. Urbana: University of Illinois Press, 2002. (edited with David Herr and Terence Finnegan) Wayfarer: Charting Advances in Social Science and Humanities Computing. Urbana: University of Illinois Press, 2002. This CD-ROM contains more than 65 essays and research and teaching applications, including illustrative interactive multimedia materials. (edited and annotated with Georganne B. Burton, introduction pp. 1-48) "The Free Flag of Cuba”: The Lost Novel of Lucy Pickens [orig. pub. 1854] in the Library of Southern Civilization series, edited by Lewis P. Simpson. Baton Rouge: Louisiana State University Press, 2002, paperback 2003. (with et al.) Documents Collection America's History, vol. 1, to accompany James Henretta, et al., America's History, 2nd ed. (New York: Worth Publishers, 1993). (edited with Robert C. McMath, Jr.) Class, Conflict, and Consensus: Antebellum Southern Community Studies. Westport, Conn: Greenwood Press, 1982. (edited with Robert C. McMath, Jr.) Toward a New South? Studies in Post-Civil War Southern Communities. Westport, Conn: Greenwood Press, 1982. (edited with Jerald Podair and Jennifer L. Weber) The Struggle for Equality: Essays on Sectional Conflict, the Civil War, and the Long Reconstruction in Honor of James M. McPherson. Charlottesville: University of Virginia Press, 2011. Editor, Writing the South in Fact, Fiction, and Poetry: Essays in Honor of Charles Joyner. Columbia: University of South Carolina Press, expected 2013.
Plays: (with Georganne Burton) “Abraham Lincoln’s Beardstown Trial: The Play” Premiered Sept. 29, 2009, Beardstown, Il. (Endorsed by the Congressional Abraham Lincoln Bicentennial Commission, November 2009; Play available upon request); http://www.lincolnbicentennial.gov/calendar/beardstown-trial-11-10-09.aspx; http://www.civilwar.org/aboutus/events/grand-review/2009/almanac-trial.html
Introductions and Forewords to Books: "Foreword," pp. ix-liv to Born to Rebel: An Autobiography by Benjamin Elijah Mays. Athens: University of Georgia Press Brown Thrasher edition, 1987, also in paperback edition (book without foreword originally published by Charles Scribner's Sons, 1971). Revd. Foreword 2003. Case 1:12-cv-00203-CKK-BMK-JDB Document 157-5 Filed 08/08/12 Page 55 of 151 Burton, page 3 "Introduction," pp. 9-11 to Roll the Union On: Southern Tenant Farmers Union. As told by its Co- founder, H.L. Mitchell. Chicago: Charles H. Kerr Publishing Company, 1987. “Introduction,” pp. xiii-xviii to Soldiering with Sherman: The Civil War Letters of George F. Cram. Jennifer Cain Bohrnstedt, ed., DeKalb: Northern Illinois University Press, 2000. "Introduction," pp. x-xxxiv to Pitchfork Ben Tillman: South Carolinian by Francis Butler Simkins, for the reprint edition of the Southern Classics Series of the Institute for Southern Studies. Columbia: University of South Carolina Press, 2002 (book without Introduction originally published by Louisiana State University Press, 1944). (with James Barrett) "Foreword," pp. xi-xxv to paperback edition of Cause at Heart: A Former Communist Remembers by Junius Irving Scales with Richard Nickson. Athens: University of Georgia Press, 2005 (book without Foreword originally published 1987).
Editor, Book Series, A Nation Divided: Studies in the Civil War Era, University of Virginia Press, 2011-
Journals Edited: "Three Articles from a Century of Excellence: The Best of The South Carolina Historical Magazine," pp. 182-89 for South Carolina History Magazine 101: 3 (July 2000). “Introduction,” pp. 161-65 for Social Science Computer Review 12:2 (Summer 1994). Co-editor, "Technology and Education," International Journal of Social Education 5:1 (Spring 1990).
History Articles, Chapters, and Essays: “The Silences of Slavery, in The Battlefield and Beyond: Essays on the American Civil War. Edited by Clayton E. Jewett (Baton Rouge: Louisiana State University Press, 2012), pp. 13-27. “Abraham Lincoln,” in The Oxford Encyclopedia of American Political and Legal History. Edited by Donald T. Chritchlow and Philip R.VanderMeer, 1:560-64. 2 vols. (NY: Oxford University Press, 2012). “Lincoln at Two Hundred: Have We Finally Reached Randall's Point of Exhaustion?” In The Living Lincoln: Essays from the Harvard Lincoln Bicentennial Symposium, pp. 204-25. Edited by Thomas A. Horrocks, Harold Holzer, and Frank J. Williams (Carbondale: Southern Illinois University Press, 2011), pp. 204-25. (with Nick Gaffney) “South Carolina,” Vol. 2: pp. 745-764 in Black America: A State by State Encyclopedia. Edited by Alton Hornsby. (Westport, CN: Greenwood Press, 2011). “Mays, Benjamin” in The New Encyclopedia of Southern Culture. Vol. 19 Education, Edited by Clarence Mohr. (Chapel Hill: University of North Carolina Press, 2012). “The Age of Lincoln: Then and Now,” Keynote for the South Carolina Historical Association Annual Meeting, The Proceedings of the South Carolina Historical Association, 2010, pp. 7-22. Edited by Robert Figueira and Stephen Lowe (Columbia: South Carolina Department of Archives and History, 2010). (with Larry McDonnell and Troy D. Smith) “Slavery and Anti-Slavery: A Transnational Archive,” pp. 121-26 in L'abolition de l'esclavage au Royaume-Uni 1787-1840 : débats et dissensions The abolition of slavery in Britain 1787-1840 : debate and dissension.” Edited by Susan Finding (Paris: ArmandColin, Nov. 2009). “Abraham Lincoln at Two Hundred,” OAH (Organization of American Historians) Newsletter, 37:4 (Nov. 2009), pp. 1, 8, 12. “Author’s Response to the Southern Intellectual History Circle Forum on The Age of Lincoln.” The Journal of the Historical Society IX:3 (September 2009): 355-72. “Colbert History,” Pan-African Studies, Fall 2009, p. 3. (with Georganne Burton) "Lucy Holcombe Pickens: Belle, Political Novelist, and Southern Lady," in South Carolina Women: Their Lives and Times, Vol 1. Editors Marjorie Julian Spruill, Valinda W. Littlefield, and Joan Marie Johnson (Athens: University of Georgia Press, 2009), pp.273-98. “Radical Reconstruction, United States, Promise and Failure of" VI: 2798-2801
Accepted and in Press: “The Gettysburg Address.” In 1863. Edited by Harold Holzer and Sara Gabbard. (Carbondale: Southern Illinois University Press, expected 2013). “Lincoln and Secession.” In Secession and War Come to Washington. Edited by Paul Finkelman and Donald R. Kennon for the U.S. Capitol Historical Society (Athens: Ohio University Press, expected 2013). “Religion and the Academy,” Books and Culture 17:3 (May/June), 2012. “The South as Other, The Southerner as Stranger,” Presidential Address for the Southern Historical Association, The Journal of Southern History (expected Dec. 2012). “Lincoln, Race, and African Americans,” Part 2, in Pan-African Studies, Clemson University, expected 2012. (with David Roediger, Simon Appleford, and Kalev Leetaru) "Race, Place, and the American Dream: A Case Study of East St. Louis." Commissioned by Editor of the American Historical Review, expected 2012. (with Simon Appleford) “The Voting Rights Right of 1965 in Historical Perspective,” The Journal of the Historical Society (expected 2013). “Picturing Lincoln in the 1850s,” Journal of the Abraham Lincoln Association, expected 2013. (with Ian Binnington) "And Bid Him Bear A Patriot's Part:" National and Local Perspectives on Confederate Nationalism in Deconstructing Dixie. Edited by Jason Kyle Phillips (Athens: University of Georgia Press, expected 2013). “The Slave Family,” in Enslaved Females: An Encyclopedia of Daily Life during Slavery in the United States. Edited by Daina R. Berry and Deleso Alford Washington (Santa Barbara & Westport, CN: Greenwood Press-ABC-CLIO, expected 2012). “Remembering the Civil War,” in Civil War: Global Conflict. Edited by Simon Lewis and David Gleeson (Columbia: University of South Carolina, expected 2013).
Articles on Digital History, Statistics, Computing, and Scholarship of Teaching and Learning (SoTL): (with Simon Appleford) “Cyberinfrastructure for the Humanities, Arts, and Social Sciences,” in ECAR (Educause Center for Applied Research) Bulletin 9: 1 (January 13, 2009): 2-11. (with James Onderdonk and Simon Appleford) “History: The Role of Technology in the Democratization of Learning.” In Ubiquitous Learning, pp. 197-205. Edited by Bill Cope and Mary Kalantzis. Urbana: University of Illinois Press, 2009. Case 1:12-cv-00203-CKK-BMK-JDB Document 157-5 Filed 08/08/12 Page 60 of 151 Burton, page 8 “Teaching Race and Citizenship” in America on the World Stage: A Global Approach to U.S. History, pp. 229-35. Edited by Ted Dickinson and Gary Reichard. Urbana: Published for the Organization of American Historians by University of Illinois Press, 2008. (with Simon Appleford) “Digital History: Using New Technologies to Enhance Teaching and Research,” Web Site Reviews in The Journal of American History 99 (March 2008): 1329-31. (with James Onderdonk and Simon Appleford) “The Illinois Center for Computing in Humanities, Arts, and Social Science,” Cyberinfrastructure Technology Watch Quarterly (CTWatch) http://www.ctwarch.org. May, 2007. Chapter 3, U.S. History Survey Syllabus (annotated), Teaching Philosophy, and examples, pp. 94-107 in AP US History Teacher's Guide. Edited by Nancy Schick and Warren Hierl (with Marc Singer, Assessment Specialist). Princeton: College Board Advanced Placement of the Educational Testing Service, 2007. Also available as a download at (http://apcentral.collegeboard.com/apc/public/courses/teachers_corner/3501.html). “American Digital History,” Social Science Computer Review 23: 2 (Summer 2005): 206-220. “Creating a Sense of Community in the Classroom,” pp. 131-35 in The Art of College Teaching: 28 Takes. Edited by Marilyn Kallet and April Morgan. Knoxville, University of Tennessee Press, 2005. (with Ian Binnington and David Herr) “What Difference Do Computers Make? History, Historians, and Computer-Mediated Learning Environments,” History Computer Review 19 (Spring 2003): 98- 103. (with Ian Binnington and David Herr) “Computer Mediated Learning Environments: How Useful Are They?” AHR Perspectives: Newsmagazine of the American Historical Association 41:1 (January 2003): 14, 22 (More detailed Carnegie Report as “Historians Face the E-Future: Findings from the Carnegie Scholar Survey on Computer Mediated Learning Environments,” at AHA Website www.theaha.org/perspectives/issues/2003/0301/0301not3.cfm). (with Terence Finnegan and Beatrice Burton) "The Census Workbench: A Distributed Computing U.S. Census Database Linkage System," in Wayfarer: Charting Advances in Social Science and Humanities Computing. Editors Orville Vernon Burton, David Herr, and Terence R. Finnegan. Urbana: University of Illinois Press, 2002. (with David Herr and Beatrice Burton) "RiverWeb: History and Culture of the Mississippi River Basin American Bottom," in Wayfarer: Charting Advances in Social Science and Humanities Computing. Editors Orville Vernon Burton, David Herr, and Terence R. Finnegan. Urbana: University of Illinois Press, 2002. “Interviews with Exemplary Teachers: Orville Vernon Burton and Beverly San Augustin,” The History Teacher 35 (February 2002): 237-251. "A Special Kind of Community," Furman Magazine 44, no. 1 (Spring 2001), 16-19. "Why Care About Teaching? An interview with an Accomplished Scholar and National Teaching Award Winner," The Real Issue (January/February 2000): 2-5. “The Use of Historical and Statistical Data in Voting Rights Cases and Redistricting: Intent and Totality of Circumstances Since the Shaw Cases,” “Understanding Ecological Regression Techniques for Determining Racial Bloc Voting: An Emphasis on Multiple Ecological Regression,” and “Report on South Carolina Legislative Delegation System for Vander Linden v. South Carolina, Civ. Non. 2-91-3635-1, December 1995,” in Conference Workbook. Lawyer’s Committee for Civil Rights Under Law Voting Rights Project, American University Washington College of Law, Voting Rights Conference, November 19-20, 1999, Washington D.C. “Presenting Expert Testimony in Voting Rights Cases” and “Understanding Ecological Regression Techniques for Determining Racial Bloc Voting,” in Conference Proceedings. CLE/NAACP Annual Meeting, Indianapolis, IN, 1993. (with James W. Loewen, Terence Finnegan, Robert Brischetto) "It Ain't Broke, So Don't Fix It: The Legal and Factual Importance of Recent Attacks on Methods Used in Vote Dilution Litigation," lead article in The University of San Francisco Law Review 27:4 (Summer 1993): 737-780. "Teaching Historians with Databases," History Microcomputer Review 9:1 (Spring 1993): 7, 9-17. (with Terence Finnegan), “Two Societies at War, 1861-1865," pp. 273-290 in Documents Collection America's History, vol. 1. Edited by Orville Vernon Burton, et al., to accompany James Henretta, et al., America's History, 2nd ed. (New York: Worth Publishers, 1993). Case 1:12-cv-00203-CKK-BMK-JDB Document 157-5 Filed 08/08/12 Page 61 of 151 Burton, page 9 "Populism," pp. E7-E11, in Instructor's Resource Manual America's History, 2nd ed., vol. 2 to accompany James Henretta, et al., America's History (New York: Worth Publishing, 1993). "Quantitative Methods for Historians: A Review Essay," Historical Methods 25:4 (Fall 1992): 181-88. "Computers, History, and Historians: Historians and Converging Cultures?" History Microcomputer Review 7:2 (Fall 1991): 11-23. (with Terence Finnegan) "Historians, Supercomputers, and the U.S. Manuscript Census," in Proceedings of the Advanced Computing for the Social Sciences Conference. Editors Bruce Tonn and Robert Hammond. Washington, D.C.: GPO (U.S. Department of Commerce Bureau of the Census), 1990. Revised edition published in Social Science Computer Review 9:1 (Spring 1991), 1-12. (with Terence Finnegan) "Developing Computer Assisted Instructional (CAI) Materials in the American History Surveys," The History Teacher 24:1 (Nov. 1990): 1-12. (with Terence Finnegan) "Teaching Historians to Use Technology: Databases and Computers," International Journal of Social Education 5:1 (Spring 1990): 23-35. "Complementary Processing: A Supercomputer/Personal Computer U.S. Census Database Project" in Supercomputing 88, vol. 2 Science and Applications. Editors Joanne L. Martin and Stephen Lundstrom. Washington, D.C.: IEEE Computer Society Press, 1990, pp. 167-177. "History's Electric Future" in OAH (Organization of American Historians) Newsletter 17: #4 (November 1989): 12-13. "New Tools for ‘New’ History: Computers and the Teaching of Quantitative Historical Methods" in Proceedings of the 1988 IBM Academic Information Systems University AEP Conference, "Tools for Learning," Dallas/Ft. Worth, Texas, June 1988. Editor Frederick D. Dwyer. Abstract in Agenda, pp. 73-74. An expanded and significantly different version with Terence Finnegan as coauthor appears in History Microcomputer Review 5:1 (Spring 1989): 3, 13-18. (with Robert Blomeyer, Atsushi Fukada, and Steven J. White) "Historical Research Techniques: Teaching with Database Exercises on the Microcomputer," Social Science History 11:4 (Winter 1987): 433- 448. The United States in the Twentieth Century (History 262). Champaign: University of Illinois Guided Individual Study, Continuing Education and Public Service, 1986. "The South in American History" in American History: Survey and Chronological Courses, Selected Reading Lists and Course Outlines from American Colleges and Universities, Editors Warren Susman and John Chambers, vol. 1: 121-27. New York: Marcus Wiener Publishing, Inc., 1983, rev. 2nd ed. 1987, rev. 3rd ed. 1991. "Using the Computer and the Federal Manuscript Census Returns to Teach an Interdisciplinary American Social History Course," The History Teacher 12 (November 1979): 71-88. Reprinted with a few changes in Indiana Social Studies Quarterly 33 (Winter 1980-81): 21-37.
Interviews, Reports, and Other Publications: “A Brief Conversation with James M. McPherson,” in The Struggle for Equality: Essays on Sectional Conflict, the Civil War, and the Long Reconstruction in Honor of James M. McPherson. Edited by Burton et al., pp. 288-92 (Charlottesville: University of Virginia Press, 2011). “UI Earns Right to be Mr. Lincoln’s University: Excerpted from remarks by Prof. Vernon Burton, April 1, 2010 keynote address at the UI College of Law,” The News Gazette (Champaign, Illinois) May 23, 2010, pp. C-1 and C-4. “Learning from the Bicentennial: Lincoln’s Legacy Gives Americans Something for which to Strive,” The News Gazette (Champaign, Illinois) February 12, 2010, pp. C-1 and C-4. “Life of Lincoln Resonates Today,” The Atlanta Journal-Constitution, Opinion, Dec. 9, 2009, A19. “Remarks by Professor Orville Vernon Burton at the October 10, 2009 Celebration of Abraham Lincoln’s September 30, 1959 Speech,” Delivered at the Milwaukee War Memorial Center at the Invitation of the Wisconsin Lincoln Bicentennial Commission, Appendix pages 166-177 in Final Report and Appendix of the Wisconsin Lincoln Bicentennial Commission, To: The Governor of the State of Wisconsin, Jim Doyle, Responsive to: Executive Order #245, Date: February 12, 2010. Case 1:12-cv-00203-CKK-BMK-JDB Document 157-5 Filed 08/08/12 Page 62 of 151 Burton, page 10 “Max Bachmann's Bust of Abraham Lincoln, Circa 1915,” pp. 88-89 in Lincoln in Illinois, Ron Schramm, Photographer and Richard E. Hart, Compiler and Editor (Springfield: published by the Abraham Lincoln Association, 2009. “Why Another Book on Abraham Lincoln,” Historically Speaking, 2008. “An Interview with Vernon Burton” Lincoln Lore, no. 1894 (Fall 2008), pp. 18-24. “Lincoln’s Generation also Faced Crisis Involving Religion and Terrorism,” in History Network Newsletter, February 25, 2008. “Abraham Lincoln, Southern Conservative: An Interview with Orville Vernon Burton” ( 2 Parts), posted by Allen Barra, October 2, 2007. http://www.americanheritage.com/blog/200710_2_1259.shtml and http://www.americanheritage.com/blog/200710_2_1260.shtml Interview by Roy A. Rosenzweig, 2001, "Secrets of Great History Teachers," History Matters, at http://historymatters.gmu.edu/browse/secrets/. "Keeping Up With the e-joneses: Information Technology and the Teaching of History," Proceedings for First Annual Charleston Connections: Innovations in Higher Education Conference. Learning from Each Other: The Citadel, The College of Charleston, The Medical University of South Carolina, Charleston Southern University and Trident Technical College. June 1 and 2, 2001, The Citadel, Charleston, South Carolina, p. 63. (with Terence Finnegan and Barbara Mihalas) "Developing a Distributed Computing U.S. Census Database Linkage System," Technical Report 027 (December 1994). National Center for Supercomputing Applications, UIUC. "On the Study of Race and Politics," Clio: Newsletter of Politics & History, An Organized Section of the American Political Science Association 3:1 (Fall & Winter, 1992/1993): 6. "Benjamin Mays of Greenwood County: Schoolmaster of the Civil Rights Movement," South Carolina Historical Society News Service, published in various newspapers, 1990. "Quantitative Historical U.S. Census Data Base" in Science: The State of Knowing. National Center for Supercomputing Applications, Annual Report to the National Science Foundation 1987, p. 29. "Computer-Assisted Instructional Database Programs for History Curricula" Project EXCEL. 1986-87 Annual Report. Office of the Chancellor, UI at Urbana-Champaign, pp. 41-42. "Postmodern Academy," The Octopus, January 24, 1997, p. 6. (with David Herr and Ian Binnington) “Providing Lessons in Mississippi River Basin Culture and History: riverweb.ncsa.uiuc.edu,” in Touch the Future: EOT-PACI, 1997, p. 43. "The Coming of Age of Southern Males During Reconstruction: Edgefield County, South Carolina," Working Papers in Population Studies, School of Social Sciences, University of Illinois at Urbana-Champaign, 1984. In addition, I have written a number of reports as expert witness for minority plaintiffs in voting rights and discrimination cases.
Accepted and In Press: “Liberty,” in the Fetzer Institute's Booklet of Notable Lincoln Quotations, expected 2012.
Digital Publications and Projects: Editor in Chief, Slavery and Anti-Slavery: A Transnational Archive. The World’s Largest Archive on the History of Slavery. Farmington Hills, MI: Thompson-Gale, 2008--. http://www.galetrials.com/default.aspx?TrialID=16394;ContactID=15613 Part I: Debates Over Slavery and Abolition, 2009 Part II: Slave Trade in the Atlantic World, 2011 Part III: Institution of Slavery, 2012 Part IV: Age of Emancipation Advisory Board: Ira Berlin, Laurent Dubois, James O. Horton, Charles Joyner, Wilma King, Dan Littlefield, Cassandra Pybus, John Thornton, Chris Waldrep. Webmaster for the Abraham Lincoln Bicentennial Commission Website, now maintained by the ALBFoundation. http://www.lincolnbicentennial.gov/ Case 1:12-cv-00203-CKK-BMK-JDB Document 157-5 Filed 08/08/12 Page 63 of 151 Burton, page 11 Lincoln Remembered: Twelve essays commemorating the bicentennial of Lincoln’s birth, February 2009 to February 2010. A monthly blog for the Illinois LAS On-line Newsletter; available at http://www.las.illinois.edu/news/lincoln/ Editor, “Slavery in America in Sources in U.S. History Online.” Farmington Hills, MI: Thompson Gale, 2007. “The Mississippi River in American History,” for Mark Twain’s Mississippi. Editor Drew E. VandeCreek, Institute of Museum and Library Services (IMSL) Project (2007). RiverWeb: An interdisciplinary, multimedia, collaborative exploration of the Mississippi River's interaction with people over time (now redone as Cultural Explorer). CD-ROM and Website http://riverweb.ncsa.uiuc.edu/. The Illinois RiverBottom Explorer (IBEX). Part of the East Saint Louis Action Research Project (ESLARP) where Faculty and East St. Louis neighborhood groups and local churches work on tangible and visible projects that address the immediate and long-term needs of some of the city's poorest communities. (More is available at http://www.eslarp.uiuc.edu/). IBEX serves as a resource for historical documents, primary and secondary sources, and oral history interviews. Website: http://www.eslarp.uiuc.edu/ibex/archive/default.htm. Text96. A collection of primary source electronic texts for teaching American History. Website http://www.history.uiuc.edu/uitext96/uitexttoc.html. "Database Exercises and Quantitative Techniques: Exercise I: Colonial America." Madison, WI: Wiscware, 1987. (for IBM and compatible computers, 1 disk, Instructional Workbook, and Teacher's Instructional Sheet). "Lessons in the History of the United States." Wentworth, NH: COMPress, 1987 (1989 with QUEUE, Fairfield, CT). For IBM color monitor; originally 50 computer exercise modules on 25 computer disks + instructor's manual. An interactive electronic textbook of U.S. history. Automated linkage and statistical systems Unix Matchmaker, AutoLoad, RuleMatch, DisplayMatch, ViewCreate (Urbana: UI NCSA, 2000). Website http://www.granger.uiuc.edu/aitg/maps/1870/htm/default.htm "Illinois Windows Dataentry System for U.S. Census." University of Illinois, 1988 (for IBM PS2 and compatible computers with Windows applications, 1 disk, Instructional Sheet)
In addition, I continue to use Edgefield County, South Carolina to investigate, "large questions in small places." I have accumulated a quantitative database that includes every person and farm recorded in the U.S. manuscript census returns linked from 1850 to 1880 for old Edgefield District, South Carolina (a region now comprising five different counties). With this unique database I (and my students) can study, test, and suggest themes in American History with details and specificity related to the lives of ordinary folks.
Accepted and in Press: “Abraham Lincoln,” http://www.essentialcivilwarcurriculum.com/. Editors, William C. Davis and James I. Robertson, Sesquicentennial Project of the Virginia Center for Civil War Studies and the History Department of Virginia Polytechnic Institute and State University (Virginia Tech),expected 2012.
Honors, Fellowships, Awards Major Honors and Fellowships: U.S. Professor of the Year, Outstanding Research and Doctoral Universities Professor (Council for Advancement and Support of Education and Carnegie Foundation for the Advancement of Teaching), 1999 American Historical Association Eugene Asher Distinguished Teaching Prize, 2004 Chicago Tribune’s Heartland 2007 Literary award for nonfiction for The Age of Lincoln Illinois House Resolution of Congratulations, HR 0711, 2007. The Illinois State legislature honored with a special resolution for contributions as a scholar, teacher, and citizen of Illinois. Society of American Historians, Elected 2012 Fellow, National Humanities Center (NEH Senior Scholar Award), 1994-95 Case 1:12-cv-00203-CKK-BMK-JDB Document 157-5 Filed 08/08/12 Page 64 of 151 Burton, page 12 Fellow, Woodrow Wilson International Center for Scholars, 1988-89 Fellow, Pew Foundation, 1996 National Fellowship Program for Carnegie Scholars, 2000-2001 Rockefeller Humanities Fellowship, 1978 Earl and Edna Stice Lectureship in the Social Sciences at the University of Washington, 2005 Strickland Visiting Scholar, Department of History, Middle Tennessee State University, 2006 Pew-Lilly Foundation Graduate Professor, Notre Dame University, 2001 Mark W. Clark Distinguished Chair of History, The Citadel, 2000-01
Other Selected Honors and Awards: Organization of American Historians Distinguished Lecturer, 2004-2014 Choice Outstanding Academic Book for The Age of Lincoln, 2008 Choice Outstanding Academic Title for Slavery and Anti-Slavery: A Transnational Archive, 2009 Booklist’s Editors’ Choice Title for Slavery and Anti-Slavery: A Transnational Archive, 2009 Choice Outstanding Academic Book for Computing in the Social Sciences and Humanities, 2003 Richard F. Fenno Prize, Legislative Studies Section, American Political Science Association, for Quiet Revolution, 1995 Certificate of Excellence from the Carnegie Academy for the Scholarship of Teaching and Learning for Work that Advances the Practice and Profession of Teaching In Support of Significant Student Learning, 2001. Elected to honorary life membership in BrANCH (British American Nineteenth-Century Historians) Award of Distinction in the Film/Video-History/Biography category from the International Academy of the Visual Arts, 16th Annual Communicator Awards, for “People: A Lincoln Portrait” television interstitial series (The Communicator Awards is the leading international awards program honoring creative excellence for communications professionals), 2010 (part of program I put together for Lincoln commemoration at UIUC). SC African American Heritage Commission's 2009 "Preserving Our Places in History" Project Award for Claw’s (College of Charleston Carolina Lowcountry and Atlantic World – I am executive director) work in commemorating the banning of the international slave trade Senior Research Fellow, Southern Studies, University of South Carolina, 1988 Phi Beta Kappa, Furman University, 1986 Princeton University Scholar Award, 1969 National Defense Educational Award Title IV Fellowship, 1971 (Princeton University) Clark Foundation Scholarship, 1966-69 (Furman University) Wicker Award for Outstanding Student (sophomore), Furman University, 1967 Endel History Award, Furman, 1969 Bradshaw-Feaster General Excellence Award (Furman's highest honor for the graduating senior selected by faculty), 1969
UIUC Honors and Teaching Awards and Recognition Inaugural University “Distinguished Teacher/Scholar,” 1999-2008 University Scholar, 1988 – 2008 Campus Award for Excellence in Public Engagement, 2006 Graduate College Outstanding Mentoring award, 2001-02 Fellow, Center for Advanced Study, 1982, Associate, 1994 Burlington Northern Faculty Achievement Award (UIUC), 1986 Study in a Second Discipline, Statistics and Demography, 1984 All-Campus Award for Excellence in Undergraduate Teaching, 1999 LAS Dean’s Award for Excellence in Undergraduate Teaching, 1999 LAS Award for Distinguished Teaching, 1986 School of Humanities Teaching Award, 1986 George and Gladys Queen Excellence in Teaching Award in History, 1986 Case 1:12-cv-00203-CKK-BMK-JDB Document 157-5 Filed 08/08/12 Page 65 of 151 Burton, page 13 Undergraduate Instructional Award (UIUC), 1984 Every semester and for every undergraduate course that I taught at the University of Illinois (excluding large survey classes of between 300-750 students), I was deemed excellent in the UIUC "Incomplete List of Excellent Teachers." I was noted on the list for more than twenty different courses. I was noted as "outstanding" from 1979 as long as they used that designation. Recognized by the Pan-Hellenic Council at as an "outstanding staff member for furthering scholastic achievement" Selected by History Department as the "one instructor whom you believe best at creating intellectual excitement in students" for an educational study of teaching practices of college teachers, 1978 Received the Resident Hall Association Award for the Best Educational Program for lectures/discussion on Gone With the Wind and Jubilee for Black History Month, 1996 The Honor Society of Phi Kappa Phi, UIUC, Vice President, 2002-03; President, 2003-04 Ronald E. McNair Scholars Program Dedicated Service Award for Minority Students, 1996 Associate Vice Chancellor Academic Affairs award for contributions to the Student Research Opportunities Program and work with minority students (1995, 2006)
Selected Grants: National Science Foundation (NSF), GK-12: Ed Grid Graduate Teaching Fellows Program, 2003-09 ($4,990,015) NSF CISE/IRIS Division Award, Grant No. ASC 89-02829, Automated Record Linkage, 1991 NSF Grant No. CDA-92-11139, "Historical U.S. Census Database with High Performance Computing," 1992 NSF, EPIC Grant, 2006-08, $20k NSF Catalyst Grant for Social Science Learning Center (with MATRIX, Michigan State University), 2006-09, $175K National Endowment for the Humanities (NEH) Challenge Grant for Institute for Computing in Humanities, Arts, and Social Science. $750 (3 mil. Total with challenge matches), 2008-2011. NEH Educational Technologies Grant, ED-20758 (1997-99) NEH Humanities High Performance Computing Collaboratory (HpC): Coordinating High Performance Computing Institutes and the Digital, 2008-09, $249,997. To support a total of nine institutes and one joint conference for humanities scholars, to be hosted by three different high-performance computer centers: the National Center for Supercomputing Applications, the Pittsburgh Supercomputing Center, and the San Diego Supercomputer Center. (with Max Edelson) NEH, The Cartography of American Colonization Database Project, To support the development of a database of 1000 historical maps illustrating the trajectory of colonization in the Americas. The database will provide a searchable introduction to the mapping of the western hemisphere in the era of European expansion, ca. 1500-1800. 2008-9, $24,997. NEH Conference Grant (with R. C. McMath, Jr., History and Social Sciences, Georgia Institute of Technology), 1978 NEH Summer Research Fellowship, 1983 American Council of Learned Societies (ACLS) Travel grant, 1977 American Council of Learned Societies (ACLS) Grant-in Aid to Recent Recipients of the Ph.D., 1977 PT3/Technology Across Learning Environments for New Teachers grant, U.S. Department of Education, 2002-03, 2003-04 Academy of Academic Entrepreneurship, 2006-08 National Archives Record Administration grant for digital records, 2003-05 IBM Shared University Research Grant, 1994 IBM Innovations grant, Educational Technologies Board, 1992 IBM Technology Transfer IBM grant, 1988 IBM EXCEL II, History Database Teaching Project, 1987 IBM EXCEL Project, History Database Teaching Project, 1986 Partnership Illinois Award, 1998 (with Brian Orland, Pennsylvania State University Landscape Architecture, East St. Louis Research Project), RiverWeb 2002-03, 2003-04 Case 1:12-cv-00203-CKK-BMK-JDB Document 157-5 Filed 08/08/12 Page 66 of 151 Burton, page 14 East Saint Louis Action Research Program Grant, 2005-06, 06-07, 07-08 Andrew Carnegie Foundation 3-year Baccalaureate Study Grant, 1976 Sloan Center for Asynchronous Learning Environment Grant, 1998 The Humanities Council (South Carolina) Outright Grant ($8,000), THC grant #10-1363-1 (Writing the South in Fact, Fiction, and Poetry), 2011 South Carolina Humanities Council Conference Grant (with Tricia Glenn), 2005 South Carolina Humanities Council Conference Grant (with Winfred Moore), 2002-03 South Carolina Humanities Council Conference Grant (with Bettis Rainsford), 2000-01
Selected Grants from University of Illinois Office of Continuing Education Grant, 2005-06, 06-07 Chancellor, Provost, and Vice Chancellor Research, RiverWeb Grant, 2004-05 ($30K) Advanced Information Technologies Group Research Award, 1994, 96, 97, 2000 Applications of Learning Technologies in Higher Education grant for UI--Text96 Project, 1995--2000 (co-principal investigator with Richard Jensen of UIC campus) Educational Technologies Board Grant for RiverWeb 1998 Guided Individual Study Grant for RiverWeb, 1997-98 Program for the Study of Cultural Values and Ethics, Course Development Award, 1993 Arnold O. Beckman Research Award, UIUC Research Board, 1989, 1992 Language Laboratory Computer Assisted Instruction Award, 1988 Research Board Humanities Faculty Research Grant, 1986 Graduate Research Board, support for various projects, 1976-08
Selected Grants from Clemson University 2011/2012 University Research Grant Committee (URGC) Program, $10,000
Selected Professional Activities and Service: Officer Congressional Abraham Lincoln Bicentennial Commission Foundation, 2008-2010; Board of Directors, Abraham Lincoln Bicentennial Foundation, interim President, 2010, vice-chair 2010- Southern Historical Association, President 2011-12, President Elect, 2011, Vice President Elect, 2010, Executive Council, 2005-08; Program Committee 1989, 1998; 2005 (Chair); Membership Committee, 1986-87, 1991-92; 1995-98; 2002; Committee on Women, 1992-95, Nominating Committee, 1999-2000, Chair H.L. Mitchell Book Award Committee, 2000-02 Agricultural History Society, President 2001-02, Vice President 2000-01, Executive Committee, 1997- 2006; Committee to Review and Revise Constitution and By-Laws, 2004-05; Nominating Committee, 1991-94, chair 1993-94; Committee to Select first Group of Fellows for Society, 1995; Committee to select new Secretary/Treasurer, 2009-10 Organization of American Historians, OAH/ALBC (Abraham Lincoln Bicentennial Commission) Abraham Lincoln Higher Education Awards Committee, 2007-09; ABC-CLIO "America: History and Life" Award Committee, 1997-99; Membership Committee, 1990-94 Social Science History Association, Executive Committee 2000-03; Nominating Committee 1990-91; Program Committee 1989, 1993; Community History Network Convener, 1976-79; Rural History Network Convener, 1988-90, 1993-94 Social Science Computing Association, Executive Council, 1993-2002; Organizing Committee Chairperson for Annual Conference, 1993, Conference on Computing for the Social Sciences (CSS93); program committee 1993-95, 2001 Southern Association for Women Historians, Membership Committee, 1996-99 H-Net, founding member of H-Net, Treasurer and Executive Committee, 1993-94; Chair, committee to evaluate multimedia NEH grant; Editor H-South (book review editor 1997-2000); Editorial Board of H-Rural, H-Slavery, and H-CivWar. In 1997, H-Net received the James Harvey Robinson Prize for teaching from the American Historical Association Scholarly Advisory Group, President Lincoln’s Cottage at the Soldier’s Home, 2012-14 Executive Council, The University South Caroliniana Society, 2011-14 Search Committee for Director South Caroliniana Library, 2012- Case 1:12-cv-00203-CKK-BMK-JDB Document 157-5 Filed 08/08/12 Page 67 of 151 Burton, page 15 Member South Carolina Abraham Lincoln Bicentennial Commission, 2008-2010 Member Champaign County, Illinois, Abraham Lincoln Bicentennial Commission, 2006-10 Council, Civil War Sesquicentennial Commission, 2009- Historical Advisory Committee” to the “Fort Sumter/Fort Moultrie Trust,” charged with organizing Sesquicentennial Activities in Charleston and South Carolina Lowcountry, 2010- Associate Editor for History, Social Science Computer Review, 2012- Editorial Board, Digital Humanities Series, University of Illinois Press, 2005- Editorial Board, Change and Continuity, 1995- Editorial Board Fides et Historia, 2010- Editorial Board Proceedings of the South Carolina Historical Association, 2009- Editorial Board, History Computer Review, 1990-2003 Editorial Board, Locus: An Historical Journal of Regional Perspectives on National Topics, 1994-96 The Illinois Humanities Council Scholar, 2004-05 Invited to present to President’s Information Technology Advisory Commission (PITAC), 9-16-2004 Invited to NEH Digital Humanities Initiative Mini-Conference, 3-6-06 and Digital Humanities Summit, 4-11, 12-07 Digital Library Federation Scholars' Advisory Panel, 2004-7 E-Docs, (one of 3 founding members) Editorial Board, 1998- Advisory Board, Postwar America: An Encyclopedia of Social, Political, Cultural, and Economic History Mentor for Southern Regional Council Minority Scholars Program, 1992-96 UIUC Representative to Lincoln Presidential Library Committee: Educational Activities Committee, 2001; Fellowship Committee, 2002 Faculty Associate, Council for International Exchange of Scholars, 2002-03 Evaluator/Referee (one of two for history) for the Pew Foundation Faculty Research Fellowships, 1997- 98, 1998-99; 2001 (for graduate students for summer seminar) Evaluator and Referee for American Council of Learned Societies Grants, 2005-08 Humanities Review Panel for Digital Grants, 2010 National Science Foundation Review Panel for Knowledge and Distributed Intelligence grants, 1998, 1999 Advisory Board for International Journal of Social Education, 1986-2000 Advisory Reviewer for The Journal of Negro History (since 2002, The Journal of African American History), 1992- Editorial Advisory Board, The South Carolina Encyclopedia, general editor Walter Edgar, 2000-06 Advisory Board, Digital Library on American Slavery, University of North Carolina, Greensboro, 2004- 10 Advisory Board, Biographies: The Atlantic Slaves Data Network Strategic Advisory Council for MATRIX: The Center for Humane Arts, Letters and Social Sciences On- line at Michigan State University, 2004- Humanities, Arts, Science, and Technology Advanced Collaboratory (HASTAC), Steering Committee and Planning Committee, 2003-04 External Advisory Board, NHPRC “Effective User-Centered Access For Heterogeneous Electronic Archives” project, Illinois Institute of Technology, 2003-05 Advisory Committee, American Studies Program, Bureau of Educational and Cultural Affairs, U.S. Information Agency, 1989-93 Delegate to the Mexican/American Commission on Cultural Cooperation, Mexico City, June 1990; Chairperson of United States delegation (Co-Chairperson with Mexican counterpart), U.S. Studies Working Group National Advisory Board to Alan Lomax's Global Jukebox: Giving Voice to the Human Species, 1993- Advisor for "Crossroads of Clay": NEH Alkaline Glazed Stoneware Exhibition and Catalog, McKissick Museum, University of South Carolina, 1987-90 Advisory Committee Film Project for Historic Southern Tenant Farmers Union, 1986-90 Consultant, Commercial film, "Roll the Union On" about H.L. Mitchell and the Southern Tenant Farmers Union Case 1:12-cv-00203-CKK-BMK-JDB Document 157-5 Filed 08/08/12 Page 68 of 151 Burton, page 16 Consultant on the Renewal of the 1965 Voting Rights Act, 1981-82, 2004-07, including consultation for an NBC TV Special. The Civil Rights Project at University of California, Berkeley, Advisory Board for “The Decade Ahead: Reauthorization of the Voting Rights Act and the Future of Democratic Participation,” 2004-07 Consultant for Documentary, "Behind the Veil," 1995-2005 Board of Directors of the Abraham Lincoln Historical Digitization Project, 1997- Advisory Council for the Lincoln Prize at Gettysburg College, 1997- Prize Committee for the Technology and History Award, The Gilder Lehrman Institute of American History, 2000-01 International Committee on Historic Black Colleges and Universities, 2001- Consultant, Belle Meade and The Hermitage and Vanderbilt University. Presentations of slavery. Consultant, Morven Park, 2010- Consultant, for Matt Burrows, documentary “The Assassination of N.G. Gonzales by James H. Tillman,” 2010- Consultant, for Chris Vallilo musical performance, “This Land is Your Land: Woody Guthrie and the Meaning of America,” 2010- Organizing and Founding Committee International Society for the Scholarship of Teaching and Learning (IS-SOTL), 2003-7 NEH, Review Panel for Digital Humanities Grants, 2010 Atlantic Slave Data Network (ASDN) advisory board, 2010-
Service - University of Illinois (three campus system – Urbana, Chicago, Springfield) UI Senate Conferences (elected), all three campuses of the University of Illinois, 2006-09, Presiding officer (chair) 2007-08 Lincoln Bicentennial Commission, 2006-9 Academic Affairs Management Team, 2007-08 Task Force for Global Campus, 2006-2007 External Relations Management Team, 2006-09 Strategic Plan Committee, 2005-06
Service (selected) University of Illinois at Urbana-Champaign Faculty Senate (elected), 1999-2001, 2002-03; 2005-06, 2006-07, Presiding Officer (Chair, Senate Executive Committee), 05-06, 06-07 (was Senate Council) elected 2000-01, 2003-04; 2005-06; 06-07; Chair, Education Policy Committee, 2002-03, Chair 03-04; Budget and Priorities Committee, 1999-01, Chair 2000-01 As Chair Faculty Senate Executive Committee, 2005-07 Represented faculty at Board of Trustee meetings, and CIC meetings. Led in developing ideas of shared governance, helped in the drafting and implementing of a strategic plan for both the University of Illinois and the Urbana- Champaign campus. Oversaw establishment of the Illinois Informatics Institute (I3) and the School of Earth, Society, and Environment. Dealt with issues of Multi year contracts for Research faculty and staff policy, rehiring of retirees, Global Campus, and led study of Academic affects of Chief Illini and diversity issues. Organizer and Chair, Planning Committee for the Lincoln Bicentennial, 2006-09 Task Force for Diversity and Freedom of Speech, 2007-08 Convocation address, August 21, 2000 Search Committee for Chancellor, vice-chair, 2004-5 Association of American Colleges and Universities campus representative and Associate, 2004-05 Martin Luther King, Jr., Week Planning Committee, co-chair, 2002-03, 2003-04, 2004-05, 2005-06 Strategic Plan Committee, 2005-06 Chancellor’s Task Force (“Kitchen Cabinet”) for the Humanities, 2002-04 Provost’s ad hoc Committee on Evaluating Public Service for Promotion and Tenure, 2003-04 Brown Jubilee Planning Committee, Diversity Initiative, 2002-04 Case 1:12-cv-00203-CKK-BMK-JDB Document 157-5 Filed 08/08/12 Page 69 of 151 Burton, page 17 Law-Education Brown Jubilee Conference Program Committee, 2002-04 East St. Louis Action Research Projects (ESLARP) Campus Advisory Committee, 2004- University Planning Council, 2000-01 Selection Committee for University Scholars, 1999 -- 2000, Chair Subcommittee for Social Sciences, Humanities, FAA, Communications, Education, Law 2000 UI President's Distinguished Speakers Program, 2000-02, 2006-8 University of Illinois Press Board, 1995-2000, Chair 1998-2000 Search Committee for Director University of Illinois Press, 1998-99 Committee on University Publishing, 1997-98 Graduate College Executive Committee, 1998-2000; Committee to Evaluate Dean of Graduate College, Committee to Review and Implement Graduate Program Revisions, Graduate Student Grievance Policy Committee Graduate College Office of Minority Affairs Strategic Planning Committee, 1999-2000 University Administration Budget and Benefits Study Committee, 2000-02 Budget Strategies Committee, 1993-94, Subcommittee for Library. Subcommittee for Faculty Productivity and Teaching Models Illinois Program for Research in the Humanities (IPRH) Advisory Committee, 2001-03 Center for Advanced Study George A. Miller Committee, 2000-03 UI-Integrate Faculty Advisory Committee, 2003-04 Graduate College Area Subcommittee for the Humanities and Creative Arts, 1996-98 Campus-wide Advisory Committee for the Center for Writing Studies, 2000-01 Committee on Institutional Cooperation (CIC), Selection Committee for CIC Research Grants in the Humanities, 1993-94 Chancellor's Task Force for Minority Graduate Students, 1989-92 Chair, Subcommittee for Summer Program for Minority Graduate Students, 1990 Computer Resources Development Committee, Program for the Study of Cultural Values and Ethics, 1991-93 High Performance Computing Committee for the Social Sciences, 1989-95 Rural History Workshop Convener, 1989-94 (with Sonya Salamon) Faculty Fellow, 1990-2003 Graduate College Fellowship Committee, 1988 Selection Committee for Lily Fellows, 1987 Social Studies Committee for the Preparation of Teachers, Council on Teacher Education, 1986 Afro-American Studies and Research Program (AASRP --renamed African American Studies and Research Program), Advisory Council, 1982-86; Curriculum Development & Faculty Recruitment Committee, 2002-2003; Research and Course Competition Committee, 1991-94, Chair 93-94; Electronic Networking Committee, 1996-2000, Chair 1997-98; Library Advisory Committee, 1997-2003 Chair, Search Committee for African-American Scholar, 1986-87 Search Committee, Director for AASRP, 1985-86, Chair 87-88 Graduate College Appeals Committee, 1984 Chancellor's Allerton Conference, 1988; Chancellor's Beckman Conference, 2001-06; Chancellor’s Conference on Diversity, 2002, faculty facilitator Combating Discrimination and Prejudice Workshop, 1988 Krannert Art Museum, Committee on The Black Woman as Artist, 1992 H. W. Wilson Faculty Panel, 1993 Advanced Information and Technology Committee, 1992-97, Advisory Committee, 1993-94 Honors Symposium for UI recruitment of High School Seniors, 1993 Search Committee for Archivist, UIUC Computing and Communications Service Office, 1993 Search Committee for Research Librarian, UIUC Library, 1997; Undergraduate Library Advisory Committee, 2002- Member Human Dimensions of Environmental Systems Group, 1997- Faculty Learning Circle for 2003-2004 Illini Days Speaker, 1999, 2000, 2002 Case 1:12-cv-00203-CKK-BMK-JDB Document 157-5 Filed 08/08/12 Page 70 of 151 Burton, page 18 Public Interest Fund of Illinois Representative, 1996- Facilitator for Interinstitutional Faculty Summer Institute on Learning Technologies, UIUC, 2000, 2002 Board of Advisors, Collaborative for Cultural Heritage and Museum Practices (CHAMP), 2005-08 Faculty Mentor for Campus Honors Program, 1980-2008
Service - College of Liberal Arts and Science UI: Lecturer at Pedagogy 2000: Teaching, Learning and Technology, Annual UIUC Retreat on Active Learning (2000) Keynote Address at LAS Awards Banquet, 2000 and Keynote at UIUC Campus Awards Banquet, 2000 Dean's Committee to Evaluate Chair of History Department (1 of 3 elected by History Department), 1996 Oversight Committee Computing for the Social Sciences, 1993-95 Committee to select nominees for election to College Executive Committee, 1992 Academic Standards Committee, 1983-85, Chair 1984-85 School of Humanities Scholarship and Honors, 1986-88, Chair 1987-88 Social Sciences and Humanities Respondent to the Joint Task Force on Admission Requirements and Learning Outcomes, 1988 Advisory Committee, Social Sciences Quantitative Laboratory, 1987-88, 1989-93 Alumni Association Annual Speaker, 1990 General Education Committee, 1990-91 Awards Committee, Chair, 1991-92 Race & Ethnicity, Class & Community Area Committee of Sociology Graduate Program, 1993- LAS Alumni Association Speaker, 2000 Cohn Scholars Honors Mentoring Program (choosing the 10-14 best Humanities first-year students), 1986-88, 1989-90, 1992-93, 1995-96, 1998-99, 2002 Faculty Mentor, Committee of Institutional Cooperation Summer Research Opportunities Program for Minority Students, 1987, 1991-95, 1997-2000, 2002, 2003 Faculty Mentor, McNair Minority Scholars, 1993-94, 96-97 Summer Orientation and Advance Enrollment Program, Faculty Leader, 1991-93, 2000, 2002, 2004 Gender Inclusivity Seminar, 1992 The African-American Experience: A Framework for Integrating American History: An Institute for High School Teachers of History, instructor 1992, 94 Faculty Advisor for UIUC Law School Humanities Teaching Program, 1998-99 Senior Faculty Mentor, LAS Teaching Academy, 1999-08
Service - Department of History UI: Lincoln Bicentennial Committee, Chair, 2005-06, co-Chair 2006-08 Department Distance Learning and Global Campus committee, 2007-08 Carnegie Initiative on the Doctorate, 2003-05 Ethical Conduct Liaison, 2004-05 Phi Alpha Theta Faculty Advisor, 2005-06 Graduate Placement Officer, 1990, 1991-94, 1997-99 Graduate Admissions Officer, 1990-91 Graduate Committee, 1990-93 Organizer of OAH Breakfast Meeting, 1989-90, 93-94 Computer Resources, 1976-88, 1989-91, 1995-99, Chair 1976-85, 1997-99 Teaching Awards, 1986-88, 92-93, 97-98, 99-2000, Chair, 1987-88, 97-98, 99-2000 T.A. Evaluation, 1975-76, 78-82, 84-88, 90-91, 95, 98-99, 2002, 2005-06 Speakers and Colloquia, 1981-82 Grants and Funding, 1981-82 Capricious Grading, 1985-86, 2002-3 Social Science History Committee, 1980 Advisor, History Undergraduate Club, 1976-78 Case 1:12-cv-00203-CKK-BMK-JDB Document 157-5 Filed 08/08/12 Page 71 of 151 Burton, page 19 Swain Publication Prize Essay Committee, 1991 Proposal-Writing Workshop, 1991-92, 2002 Teaching Workshop, 1993 Chair Library Committee, 1996-97 Faculty Advisor for Phi Alpha Theta, 2005-06 American History Search Committee, 1991-92 Chair, American History Search Committee, 1993-94 James G. Randall Distinguished Chair Search Committee, 1999-2000
Service Coastal Carolina University: Arts and Humanities: Search committee for Archaeologist, 2008-9 Selection Committee for Clark Chair of History, 2010 Third Year Assistant Professor Faculty Review Committee, 2010
Service Clemson University: History Department Civil War Sesquicentennial Committee History Department Digital MA committee Clemson University Computational Advisory Team (CU-CAT) University Academic Technology Committee. Ex-officio Steering Committee, Clemson CyberInstitute University Committee to commemorate the 50th Anniversary of the Integration of Clemson, 2011- Outstanding Staff Employee Award, Division of Academic Affairs Selection Committee, 2011 University Morrill Act Anniversary Celebration, 2011-
A more complete list of Service and Public Engagement is available upon request.
Conferences Organized (selected list): In 1978, I (with Robert C. McMath, Jr.) organized and chaired a National Endowment for the Humanities Conference on Southern Communities at the Newberry Library. In 1993, I organized, hosted, and chaired the annual meeting of the Conference on Computing for the Social Sciences at the National Center for Supercomputing Applications. In 1999, I organized and hosted the 12th Annual Meeting of the Southern Intellectual History Circle in Edgefield and Ninety Six, S.C. In 2001, I organized a workshop and conference on diversity and racism in the classroom with Carnegie Scholars at the Citadel in Charleston, S.C. In 2001, I (with James Farmer and Bettis Rainsford) organized a South Carolina Humanities Council Edgefield Summit History Conference. In January 2003, I organized a Workshop on Diversity and Racism and a Conference on the Scholarship of Teaching and Learning, both at the University of Illinois. In March 2003 I organized the Citadel Conference on the South, "The Citadel Symposium on the Civil Rights Movement in South Carolina." I organized the Humanities, Arts, Science, and Technology Advanced Collaboratory (HASTAC) meeting in January 2004 in Washington, D.C. I hosted the 2004 Southern Intellectual History Circle Meeting at the College of Charleston. I (with John Unsworth) organized and hosted a Humanities Computing Summit in August 2004 at NCSA and UIUC. In 2005, I planned and hosted the British American Nineteenth Century History (BrANCH) Conference in March 2005 in Edgefield, South Carolina and a symposium honoring Jim McPherson’s retirement in April 2005 in Princeton. As program chair I helped organize the Southern Historical Annual meeting in Atlanta in November 2005. As Director of I-CHASS, I regularly organized conferences and workshops, at least two major conferences a year such as the 2007 e-science and Geographic Information Systems conferences. And as Executive Director of the College of Charleston Atlantic World and Lowcountry Program, I regularly work with others to organize conferences and meetings.
Reviews: I have reviewed books for numerous journals and book manuscripts for numerous presses. In addition, I have refereed article manuscripts for numerous journals. I have also reviewed proposals for various Case 1:12-cv-00203-CKK-BMK-JDB Document 157-5 Filed 08/08/12 Page 72 of 151 Burton, page 20 granting agencies. I have also reviewed and written outside letters of recommendation for promotion, tenure, and endowed chair decisions for more than ninety cases at various colleges and universities. Lists of these reviews, presses, journals, universities, and granting agencies are available upon request.
Invited lectures and conference participation available upon request. Selected invited lectures 2009-11, Harvard University, University of Pennsylvania, Black Congressional Caucus, Printers Row Book Fair, Society of Civil War Historians, Society of Historians of Early America, ALBC Atlanta Town Hall meeting on Race at Morehouse College and at Jimmy Carter Presidential Library Center, Western Illinois University, Drake University, University of Illinois Law School, University of Georgia, Lawrence University, Wisconsin Lincoln Bicentennial, University of Kansas, Samford University, Talladega University, ALBC Morrill Act Conference, Arkansas State University, San Francisco State University, Clemson University, Notre Dame, University of Oklahoma, University of South Carolina, Augusta State University.
Samples of recognition given to me or my work: The Chronicle of Higher Education, Vol. L: 2 (September 5, 2003), cover page, A37-38. On-line at http://chronicle.com/prm/weekly/v50/i02/02a03701.htm C. Vann Woodward, "District of Devils," New York Review of Books, xxxii #15: 30-31 Chicago Tribune, October 13, 2007, cover of the Book Review Section, “Orville Vernon Burton’s Heartland Prize-winning “The Age of Lincoln.” Catherine Clinton, “Lincoln and His Complex Times,” pp. 4-5. Featured as example of “Faculty Excellence” on UIUC Homepage: http://www.uiuc.edu/overview/explore/ Numerous examples, including newspaper, television (including C-SPAN Book TV), radio (NPR), and other media, are available upon request.
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APPENDIX B Case 1:12-cv-00203-CKK-BMK-JDB Document 157-5 Filed 08/08/12 Page 74 of 151 Burton Moultrie Report, page 1
Report of Dr. Orville Vernon Burton for Moultrie v. Charleston County Council, C.A. No. 9 –01 562 11
Orville Vernon Burton October 5, 2001
P.O. Box 57 (3520 S. 246 Highway) 605 W. Washington Ninety Six, S.C. 29666 Urbana, IL 61801 Phone 864-543-3820; 543-2552 Phone: 217-337-0051
I am Professor of History and Sociology at the University of Illinois at Urbana- Champaign, where my research and writing focus on American History and particularly on race relations. I teach courses in U.S. History, Southern History, race relations, discrimination, ethnicity, family, and community. I use statistical analysis in my own research and writing, and I also teach courses in quantitative techniques at the University of Illinois. I am a member of the graduate statistics faculty and a Senior Research Scientist at the National Center for Supercomputing Applications.
I earned a B.A. degree from Furman University and M.A. and Ph.D. degrees at Princeton University. My primary training was in the History of the United States, with a specialization in the History of the South in the 19th and 20th centuries. For the past twenty-eight years I have taught courses in my specialization at the University level.
I am a recognized and respected scholar of United States history and the history of race relations. I have numerous publications in scholarly books and peer-reviewed journals, I have presented scholarly papers both in the United States and abroad on these subjects, and I have received various awards. I am the author or editor of six books, including In My Father's House Are Many Mansions: Family and Community in Edgefield, South Carolina (University of North Carolina Press, 1985, fifth printing 1998; subject of sessions at the Southern Historical Association and the Social Science History Association’s annual meetings; nominated for Pulitzer) and two co-edited books on southern communities. I have been recognized by my peers as a leader in my field, both as scholar and a teacher. I am currently the president of the Agricultural History Society, which publishes the premier journal in rural history, and am on the executive committee of the Social Science History Association. I chair the prize committee for the Southern Historical Association's H. L. Mitchell Award for the best book in Labor History, and I served as a member of the Organization of American Historian's ABC-CLIO "America: History and Life" Award Committee, 1997-99, to select the best article published in that two-year period in United States history. I have received fellowships from the Rockefeller Foundation, the National Endowment for the Humanities, the National Science Foundation, the American Council of Learned Societies, the Woodrow Wilson International Center for Scholars, the National Humanities Center, the Carnegie Foundation, and the Pew Foundation. I was selected nationwide as the 1999 U.S.
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Research and Doctoral University Professor of the Year (presented by the Carnegie Foundation for the Advancement of Teaching and by the Council for Advancement and Support of Education). I am a Pew National Fellow Carnegie Scholar for 2000-2001. At the University of Illinois I was named a University Scholar in 1988 and was designated one of the first three University “Distinguished Teacher/Scholars” in 1999. Last academic year, I served as the General Mark Clark Distinguished Professor of History at the Citadel.
Race relations and politics in the American South have been my specialty since I received my Ph.D. at Princeton in 1976. I have also researched and written on the Voting Rights Act of 1965 and presented this research to academic conferences in England and the United States. I was part of a large National Science Foundation study of the effects of the 1965 Voting Rights Act in the United States. I headed the research team for South Carolina and was the principal author of chapter seven on South Carolina that is contained in the book resulting from the study, The Quiet Revolution: The Impact of the Voting Rights Act in the South, 1965-1990 (Edited by Chandler Davidson and Bernard Grofman. Princeton: Princeton University Press, 1994. Winner of the 1995 Richard F. Fenno Prize, Legislative Studies Section, American Political Science Association). My article, "Legislative and Congressional Redistricting in South Carolina," was published in Race and Redistricting in the 1990s (Edited by Bernard Grofman. New York: Agathon Press, 1998). I have also contributed the entry for "South Carolina" in the Encyclopedia of African American Culture and History (Edited by Charles V. Hamilton and Jack Salzman. NY: Macmillan, 1996, revd ed. 2000). I have been commissioned to write the entry on "Civil Rights" for the South Carolina Encyclopedia edited by Walter Edgar and sponsored by the South Carolina Humanities Council. The University of South Carolina Press is publishing my introduction to Francis Butler Simkins, Pitchfork Ben Tillman: South Carolinian (originally published by Louisiana State University Press, 1944) for the reprint edition of the Southern Classics Series of the Institute for Southern Studies, University of South Carolina Press. A detailed record of my professional qualifications is set forth in the attached Curriculum Vitae.
I have had extensive experience in analyzing social and economic status, discrimination, intent in voting rights cases, and group voting behavior. I have served as an expert witness and consultant in a number of voting rights cases beginning with McCain v. Lybrand and also as a consultant in state redistricting. My testimony has been accepted by federal courts on both statistical analysis of racially polarized voting and socioeconomic analysis of the population, as well as on the history of discrimination and the discriminatory intent of laws. I conducted the extensive ecological regression analysis presented by the plaintiffs and accepted by the court in Jackson v. Edgefield County, South Carolina School District, 650 F.Supp. 1176, 1194-97 (D.S.C. 1986). To the best of my knowledge and memory, the last two cases in which I have testified or given depositions are Vander Linden v. South Carolina, Civ. No. 2-91-3635-1 and Elliott Harvey, III v. National Association of Letter Carriers, C.A. No. 98 CV 2312 (POR). In summer 2000 attorney Laughlin McDonald contacted me about consulting on the Charleston County Council case, especially the change from a district to an at-large method of election. I am being compensated at $100 an hour.
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At the request of attorneys Laughlin McDonald, Armand Derfner, and Cheryl Whipper Hamilton, I have conducted research on the historical circumstances surrounding the change in the form of government for Charleston County, South Carolina, in the 1960s. Among the issues I was asked to investigate were the following: a) the purposes behind Act No. 94 (R142, H1262) passed by the South Carolina General Assembly on March 19, 1969; b) the effects of the change in local government occasioned by this statute; c) the larger historical context in which this specific change took place, including the history of official state discrimination; d) the socioeconomic status of African Americans and whites in Charleston County and the continuing effects of historical discrimination.
Pursuant to this investigation I have examined a wide range of sources. For the most part I gathered these materials independently, but in some cases I requested specific documents and examined copies supplied by the attorneys who hired me. I also had considerable material from previous research. As a matter of course, I began by reviewing all peer reviewed published work by historians, political scientists, and sociologists, as well as Masters and Ph.D. theses relevant to the issues being investigated and pertinent to my inquiry. Some of these scholarly works will appear in specific citations. I read the Charleston News and Courier and Evening Post and the Columbia State for various periods from the 1950s and concentrated on the period from 1965 through 1969 that included coverage of relevant legislative proceedings. I consulted various data from the U.S. Censuses of 1940, 1950, 1960, 1970, 1980, 1990, and 2000. I examined the text of pertinent statutes and the Journals of South Carolina House and Senate. I read parts of trial transcripts and depositions from other cases. I searched the relevant files at the Charleston County Library, including the minutes of the County Council and the Charleston Legislative Delegation. I also examined relevant materials at the South Carolina Department of Archives and History, the South Caroliniana Library, the South Carolina Historical Society, the Cooper Memorial Library at Clemson University, and the Avery Research Center for African American History and Culture. I reviewed the published opinions and relevant correspondence of the Attorney General of South Carolina and the published school expenditures for African American and white children in Charleston County from 1896 to 1960. I have also conducted interviews. In preparing my report and my testimony in this case, the sources and types of documentation that I have used are those an expert normally consults in investigating questions of this nature. The methodology that I have employed in preparing my report is the same methodology I and other scholars in my field employ when examining issues of the sort investigated here. Finally, the analysis presented here is consistent with related scholarly research. In my analysis for this case, I have used assumptions, methods, and analytical principles consistent with those employed in my past scholarly writing. On the basis of the evidence discussed in the following pages, any expert in my field could legitimately reach a conclusion concerning the purposes and effects of the shift to at-large elections for the Charleston County Council.
According to the Supreme Court in the Arlington Heights case, plaintiffs need not show that race was a predominant factor in the decision, only "that a discriminatory
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purpose has been a motivating factor." The factors listed by the Court as relevant to a circumstantial proof of discriminatory intent include 1) the historical background of the decision, 2) the views expressed by decision-makers on related issues, 3) the specific sequence of events leading to the decision (including whether there has been a departure from the usual practices or procedures of the decision-making body), and 4) the anticipated or foreseen effect of the change on minority citizens.1
This report will first cover the historical background of discrimination in South Carolina and in Charleston specifically. Then I will present the sequence of events leading up to the change from district to at-large and show that the County Council and the Legislative Delegation foresaw the effect of this change on their minority citizens. I will also present the views expressed by the decision-makers.
I. History of Discrimination in South Carolina
South Carolina was the first state to challenge the 1965 Voting Rights Act. The state’s attorneys maintained that the Voting Rights Act of 1965 subjected the state to unnecessary intrusive supervision without proof of intentional discrimination. In denying their challenge, and affirming the constitutionality of the act in South Carolina v. Katzenbach, Chief Justice Earl Warren stated, “Congress felt itself confronted by an insidious and pervasive evil.” He noted the long history of racial discrimination in the voter registration process in South Carolina, directly quoting some of the more outrageous remarks of Benjamin Ryan "Pitchfork Ben" Tillman at the 1895 disfranchising convention as evidence of its discriminatory purpose. Warren stated that “the constitutional propriety of the Voting Rights Act of 1965 must be judged with reference to the historical experience which it reflects.”2
That historical experience includes racism and discrimination. The degree to which African Americans have held public office in South Carolina in the century and a quarter since the Civil War was largely determined by state election laws and the manner in which they were implemented. "The central fact in the history of black Carolina," states historian I. A. Newby, "has been the racism of white Carolina."3 Another historian, Jack Temple Kirby, found that "Lower South whites, surrounded by black folk, were more preoccupied with race and belligerent in championing white supremacy."4 Renowned historian of South Carolina, Francis Butler Simkins, confirmed the intent of his native state's legislation: "Reviewing the South Carolina law in respect to the Negro since 1876, it is apparent that its frank purpose is to perpetuate the division of society into two distinct castes--the white, or dominant ruling class, and the Negro, or subject class." South Carolina's "proud record in interracial harmony," he continued, relied on a policy of "absolute white supremacy."5
The 17th century charter for Carolina, which John Locke helped draft, contained two unique colonial provisions: one for religious freedom, the other a specific stipulation for chattel slavery. Locke's Fundamental Constitution of Carolina guaranteed that "every freeman of Carolina shall have absolute power over his Negro slaves of what opinion or religion soever." South Carolina served as the leading advocate for the rights of
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slaveholders in debates over the Constitution. Under the leadership of John C. Calhoun, South Carolina attempted to "nullify" a federal tariff law in 1832 in order to establish a constitutional precedent against future antislavery legislation. Resentful of dissent on the issue of slavery, antebellum South Carolina established an aristocratic structure of government and largely withheld power from the electorate. Although every white male could vote, the only offices put before the people were those of state representative and U. S. Congressman, and often only one pre-selected candidate was on the ballot. Legislative cliques determined who would "run" for governor and which "candidates" would be awarded state offices.6
South Carolina was the first state to secede from the Union, and a few months later, South Carolinians fired the first shot of the Civil War at Fort Sumter. After the Confederate defeat, white officials were very clear about the level of African American participation in government. As Governor Benjamin Perry explained, "This is a white man's government, and intended for white men only."7 South Carolina, like other recalcitrant Southern state legislatures, enacted "black codes" that severely restricted the rights of freedpersons, requiring agricultural workers to sign away most of their rights as citizens in annual labor contracts with landowners or risk prosecution for vagrancy. The enactment of black codes throughout the South played a key role in persuading Congress to enforce the franchise for African Americans and to implement Reconstruction.8
Granted the franchise, South Carolina's black majority elected Republican candidates to the bulk of the seats in a new Constitutional Convention, which then granted the right to vote to every adult male, "without distinction of race, color, or former condition."9 Subsequently, African Americans controlled a majority of seats in the lower house of the General Assembly (and from 1874 to 1876 both the senate and the house), and African Americans won elections as lieutenant governor, secretary of state, and state treasurer. Equally important, African Americans were elected to a significant number of local offices, such as sheriff, county commissioner, magistrate, school commissioner, and alderman.10 Under Reconstruction, the people of South Carolina ratified a new state constitution in 1868. This constitution, the handiwork of black and white Republicans, introduced a broad level of democracy to the state. It instituted public education for the first time in the state. It put local government in the hands of the people and held counties "accountable to the local electorate."11 Reconstruction in South Carolina lasted longer than in any other state, and South Carolina's black Republicans achieved as great a degree of political power as did African Americans anywhere.
Bitterly opposed to African American equality, some whites advocated violence to overthrow Republican control. Clashes between whites and blacks occurred throughout the state. Whether through open mob violence or secretive activity by the Ku Klux Klan, physical beatings, arson, and threats of death were common. Democrats even resorted to political assassination and murder. Seven state legislators were murdered between 1868 and 1876.12 White paramilitary groups rioted against African Americans and assassinated black militiamen and political leaders in cold blood.13 In 1876 in the notorious "Red Shirt" campaign, former Confederate generals orchestrated a violent take- over of state government from Republican control. One of those generals, Martin
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Witherspoon Gary, had announced as early as 1874 that political contests in South Carolina were "a question of race and not of politics."14 According to historian Eric Foner, Charleston was the only exception to "the Reconstruction pattern that cast blacks as victims of political violence and whites as sole aggressors." In September and October 1876, in Charleston and in the nearby village of Cainhoy, African American Republicans attacked black and white Democrats, resulting in the deaths of seven white and African American Democrats, and the wounding of others.15
Elsewhere in the state the Red Shirt campaign of intimidation, voter fraud, and violence paid off: Wade Hampton was elected governor.16 From Charleston, several African Americans who supported Hampton were elected as Democrats to the South Carolina House. George M. Mears was re-elected in the House every two years from 1880 through 1890.17
Following this overthrow of Republican government in South Carolina, the legislature adopted laws to institutionalize its control of state politics and to limit political access. Because black-majority counties elected some African American legislators, the white state legislature was determined to combat these successes. In 1882 a new registration law required all citizens to re-register or face permanent disfranchisement; registrars had great discretion in applying the law so that they could avoid striking white voters from the rolls. This discriminatory tactic effectively cut the African-American electorate in half.18 In addition, the legislature abolished a large number of precincts in heavily Republican counties, requiring voters to travel long distances in order to vote.19 The legislature adopted a law that was intended to eliminate federal scrutiny of state affairs by requiring separate ballot boxes for state and federal elections.20 A companion statute, the "Eight Box Law," required voters to place ballots for various offices in separate, unmarked boxes, which election officials periodically shuffled.
Another move to restrict African American voting power was through congressional redistricting. The legislature adopted a plan that "packed" African Americans into one malapportioned district where they made up 82 percent of the population, thereby diluting African American voting strength in the rest of the state. The "black district," as it was called, incorporated most black neighborhoods of Charleston and ran from the coast to the city of Columbia. Although this one district generally elected an African American Republican to the U.S. House of Representatives until 1896, the gerrymander assured Democrats safe contests for the remaining seats.21
Even so, black voters remained numerous enough to be troublesome to white supremacists, and the political movement by Benjamin Ryan Tillman brought about an end to any vestige of African American equality of citizenship. The Tillman movement sought explicitly racist ends, including the segregation of public accommodations and the effective disfranchisement of African American men. Tillman told the nation, in characteristically blunt language, that white South Carolina had triumphed over black South Carolina by the use of shotguns, election fraud, and intimidation, and that white South Carolina was determined, if necessary, to maintain its supremacy by a reapplication of these methods. Tillman's movement to purge the African American vote
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in South Carolina was as openly racist and its post-disfranchisement regime as rigidly committed to white supremacy as any in Dixie.22
As part of its efforts to buttress white supremacy, the Tillman movement supported the elimination of Home Rule and the creation of Legislative Delegation System. In 1888, South Carolina Governor J. C. Sheppard, who had been a participant in the terrorist red shirt campaign against African Americans, addressed the legislature and declared that the Home Rule power granted counties in the Constitution of 1868 "is not suited to our condition, and is the cause of many of the evils of which the people complain."23 The repeal of Home Rule in 1890 set the stage for Ben Tillman's abolishing locally elected governments and aggregating power in the county legislative delegation system.
The legislative delegation system was discriminatory and established to disfranchise and dilute the vote of African Americans at the county level. This system of local government can only be understood within the historical context of its establishment; it derived from Tillman. In the minds of many of South Carolina's whites, local control of county government was associated with Reconstruction and the election of African American leaders.24 White supremacists, therefore, preferred to curtail local elections, to give the governor the power to appoint and dismiss local officials, thereby maintaining control of county government.25
Initially Tillman recommended a model of township government where each township elected representatives.26 Realizing, however, that some areas of the state were not secure from African American voting, Tillman made crucial alterations in his original, more democratic, plan. Ultimately Tillman supported a system whereby each county would have a board of commissioners made up of a county supervisor elected at large and chairmen from each of the townships—not elected, but appointed by the Governor. The bill was passed in November of 1893.27 South Carolina Democratic white legislators were still concerned about both the African American and the white Republican voting populations. Black citizens continued to vote during this time period. In fact, African American legislators were involved in some of the debates, and the last black state representative did not leave the General Assembly until 1902. Without a doubt, the African American vote was still considered a threat during the time period that the County Legislative Delegation System was established.28
Because of a specific fear of political activism in Charleston and similar areas where the African American vote might be appealed to by opposing groups of whites, Tillman vowed to disfranchise blacks altogether, and he almost reached that goal in his rewriting of the state constitution.29 At the South Carolina Constitutional Convention of 1895, now U.S. Senator Tillman chaired the South Carolina Convention's Committee on the Rights of Suffrage. He wrote into the state constitution various articles of disfranchisement, such a poll tax, proof of payment of all other taxes, and a "petty crimes" provision that disfranchised all those convicted of certain crimes that whites believed African Americans frequently committed.30 In addition, a prospective voter had to satisfy a literacy test and demonstrate an understanding of any constitutional provision
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read to him by the registrar. The discretion of the registrar was unlimited. As late as 1940 a local executive observed to a journalist, "There are dam few negroes registered in any way.... If a coon wants to vote in the primary, we make him recite the Constitution backward, as well as forward, make him close his eyes and dot his t's and cross his i's. We have to comply with the law, you see."31 The disfranchising constitution of 1895 was very effective. "The whites," Tillman announced, "have absolute control of the government, and we intend at any hazard to retain it."32
The structure of primary elections is a clear example of the state’s maneuvering to keep African Americans from voting. In 1896, when the South Carolina legislature authorized statewide party primaries, the State Democratic Executive Committee prohibited all African Americans from voting in the primary, which was, in the one-party system after disfranchisement, the only election that mattered.33 The state poll tax requirement never applied to these primary elections, probably because party rules already excluded African Americans.34 When the U.S. Supreme Court overturned the white primary in 1944, Governor Olin D. Johnston called a special session of the legislature to repeal all laws relating to primary elections.35 "After these statutes are repealed," Johnston told the legislature, "we will have done everything in our power to guarantee white supremacy in our primaries."36 After South Carolina passed a constitutional amendment erasing all mention of primaries from the state constitution, the Democratic Party adopted rules excluding African Americans from its "private" primary elections.37
When the NAACP challenged the "private" primary in federal court, Judge J. Waties Waring of Charleston ruled, on July 12, 1947, in their favor because the governor and legislature violated the Fourteenth and Fifteenth Amendments, acting "solely for the purpose of preventing the Negro from gaining a right to vote."38 After the Supreme Court refused to review the case in which the Circuit Court had upheld Judge Waring's ruling, the Democratic Party no longer excluded African Americans on their party rolls, but they did extend the literacy test required for general elections to the primary. Furthermore, they would allow qualified African Americans to vote only if they swore an oath: "I believe in and will support the social and educational separation of the races.” In 1948, in Brown v. Baskin, Waring overturned that allowance and issued a court order that voting "be opened to all parties irrespective of race, color, creed or condition.”39
In 1950, the General Assembly adopted new state regulations of primary elections. Besides the literacy test, electoral devices restored to the primary election laws were statewide full-slate and majority vote requirements, all of which may dilute the votes of African American citizens.40 Although these features of the statute were reenacted without comment, they had the same purpose attributed to the statute as a whole in contemporary accounts. "Conservative lawmakers admit that the bill is designed to control Negro voting in primaries."41
South Carolina’s politicians continued to control election laws and voter registration to maintain white supremacy. Congressman and native Charlestonian James F. Byrnes, who eventually became a senator, Supreme Court justice, secretary of state,
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and governor of South Carolina, cautioned in 1920: "It is certain that if there was a fair registration they [African Americans] would have a slight majority in our state. We cannot idly brush the facts aside. Unfortunate though it may be, our consideration of every question must include the consideration of this race question."42 The effect of disfranchising legislation was profound: only 1500 African Americans in South Carolina were registered to vote in 1940.43 Still, state legislators felt threatened. The South Carolina House of Representatives passed a resolution in 1944 denouncing "indignantly and vehemently" any and all "amalgamation of the White and Negro races by a co- mingling of the races upon any basis of equality." It further resolved an affirmation of "our belief in and our allegiance to established white supremacy as now prevailing in the South" and pledged "lives and our sacred honor to maintain it, whatever the cost, in War and Peace."44
Segregation was entrenched in South Carolina society. Whites and African Americans were separate, but not equal. Looking at education as an example, an analysis of educational expenditures in South Carolina from 1896 to 1960 demonstrates the inequality of education. In 1952, per-pupil expenditures for black children were only 60 percent of the amount spent to educate white children.45
Teachers in the state also faced discrimination. When African American teachers, who were paid less than white teachers, took the issue to court, Judge Waring found in favor of African American plaintiffs for equalization of teacher pay. South Carolina formed a committee to study this issue; working with this committee was attorney David Robinson, who later played a key role in the state's "Segregation Committee." Once the committee verified that black teachers scored lower on the National Teacher Exam, South Carolina in 1945 adopted use of this exam.46
Brown v. Board of Education of 1954 began in South Carolina as Briggs v. Elliot. In 1950, when experienced politician James F. Byrnes was a candidate for governor, he anticipated that South Carolina might be ordered to desegregate its school system. He recommended legal ways to counter the rulings. He counseled, for instance, that local school districts gerrymander. “The Washington administration and the United States Supreme Court cannot regulate the area or boundaries of our school districts. We must investigate to see if it is practical to establish school districts to include the sections where most of the Negro population resides and other school districts to include sections where most of the white people reside.” He wanted local school boards to use waivers for children who needed to go to school outside their district, “a Negro child residing in the school district for whites,” or “a white student residing in a preponderantly Negro district.” Byrnes thought that “this Gerrymandering of districts” could be used effectively in cities, but less so in rural areas.47
After Byrnes won his election, he continued his tactics of a "calculated moderation." Experienced in national politics and in the judiciary, Byrnes brought a sophisticated and subtle approach to resisting racial integration. In order to forestall integration, for example, Byrnes used a significant portion of a new sales tax for the education of African American children, and white leaders throughout the state began
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equalizing the facilities of white and black schools in a desperate attempt to salvage segregation. Byrnes urged the creation of the so-called segregation committee and staffed it with some of the state's leading legal minds. Chaired by state representative L. Marion Gressette, this special school committee coordinated efforts to maintain the racial status quo.48 Byrnes even recommended that South Carolina eliminate from its constitution the provision for public schools, which it did. In 1952 in the general election, the constitutional amendment eliminating public schools was passed, and in 1954 the General Assembly ratified the amendment. (Despite eliminating public schools from the state constitution, South Carolina chose to continue its public school system.)49 South Carolina also repealed its compulsory school attendance laws and refused to provide state funds for any school that capitulated and accepted students under court order.50 The South Carolina legislature passed fifteen bills between January and April 1956, including a resolution that gave itself the right to nullify or overrule federal laws.51 South Carolina’s Massive Resistance to integration, a technique of bending a little to prevent larger changes, gave the state another decade of segregation.52 By 1963, only Mississippi and South Carolina had not even token integrated schools.
In November 1955, the state went after the NAACP. Governor George Bell Timmerman asked the South Carolina Attorney General to file suit against the group for not registering as an organization in the state. The NAACP State president would not provide names of the membership because of fear of retaliation on the members. South Carolina then barred the NAACP from the state.53
On the eve of the Voting Rights Act, South Carolina was thoroughly in the grip of white supremacy. African American voter registration in South Carolina was weakest in counties with a high percentage of blacks in their population.54 Whites kept black registration down and sometimes did not count all the votes cast by African Americans. Charged with telling a black voter during the 1964 presidential election "to place his ballot in the wrong box," precinct manager Wade H. Ratcliffe explained, "I knew this was wrong but we have always done these things."55 Only 37 percent of the 1964 black voting-age population were registered, and South Carolina elected no black officials in the twentieth century before the Voting Rights Act.56
The Voting Rights Act of 1965 and the Federal Court ruling on one-person, one- vote had immense impact on South Carolina.57 When the Federal Court ordered the South Carolina General Assembly to reapportion the state Senate on the basis of one- person, one-vote, legislators realized that some counties would no longer have a resident senator. The South Carolina Senate then adopted multimember districts, which had the effect of excluding African Americans. Finally, in the 1970s, after more litigation, the General Assembly passed the Local Government Act beginning a measure of home rule to the counties.58
The Voting Rights Act of 1965 was supposed to eliminate voter discrimination, and after South Carolina lost its challenge to the constitutionality of the act, South Carolina's literacy test and "understanding" clause were abolished.59 By 1967 African American voter registration had climbed to 51 percent of the age-eligible population.60
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By and large, South Carolina's white officials conceded that the Voting Rights Act made it impossible to prevent African-American citizens from registering and casting their ballots.61 Because of the success of the Voting Rights Act, advocates of white supremacy had to turn to election methods that could dilute the black vote, although some barriers to registration and voting continued. Location and hours of operation were problematical because local voting registration boards had the discretion to appoint deputies and set office hours. Often offices were not open when African American laborers might be available to register.62
During the 1960s, violence often accompanied demonstrations for Civil Rights in South Carolina. In the Orangeburg Massacre in 1968, three students were killed and twenty-seven were shot, among them at least two Charlestonians, Albert Dawson and Jordan Simmons. SNCC leader Cleveland Sellers was put on trial, convicted, and served time in prison, and did not receive a pardon until a quarter century later. When the patrolmen who had done the shooting were acquitted, the Reverend I. DeQuincey Newman protested that South Carolina “is just about in the same boat as Alabama and Mississippi.” Newman continued, “The perpetrators of the tragedy and those who have covered up for them have rendered a great disservice to sometimes heroic efforts that have been made in the area of race relations and interracial cooperation.”63
Discrimination in Charleston
As shown above, white South Carolina leaders have had a long history of discrimination against African Americans. The same was true for Charleston County, which did not escape the turmoil of race relations endemic in a system of white supremacy. Charleston experienced a race riot in 1866 when former slaves rioted, and again in 1919 when white sailors and locals went on a rampage against African Americans.64 According to historian Walter Edgar, during the modern Civil Rights Movement, "Charleston witnessed rioting before city officials indicated a willingness to move forward."65 In Charleston, during the turbulent challenges to white supremacy in the 1940s, 1950s and 1960s, frequent mentions were made to the “horrors” of Reconstruction. The Reconstruction era, with its elected local African American officials, was never far from the minds of white Charlestonians as the events of the Civil Rights Movement, often called the Second Reconstruction, unfolded. Charleston champion of aristocratic conservatism, and long-time editor of the Charleston News and Courier, William Watts Ball, argued in 1913 that for South Carolina "socially and politically the presence of this race [African Americans] in majority is perhaps the ruling factor in our progress, or want of it."66
Charlestonians got their news from the Charleston News and Courier, called by Judge J. Waties Waring, the uncle of editor Thomas Waring, the “bible of the supremacists.” After the court ruling banning the white primary, the editor of the Charleston News and Courier argued, "If we are to retain the primary system in South Carolina with herded negroes voting in them, with white and colored leaders herding them (many if not most of the negro leaders will be preachers from the lower class) we shall have corrupt government, government that is rotten, government that offends the
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nostrils of decent people."67 In his analysis of the newspaper, historian Stephen O'Neill wrote, "Hardly a day went by for six years after Brown that [Thomas] Waring did not attack the evils of race mixing, champion states' rights, or in some other way defend the South's case for segregation."68 In 1962, after noting that the News and Courier was not covering the black boycott of Charleston businesses (they were asking that the businesses hire some African American sales persons), Time Magazine quoted the Charlotte Observer, "The News and Courier's boycott of the boycott is only expected behavior for one of the South's noisiest advocates of segregation. The paper's editorial policy is one long high fidelity rebel yell to hold that color line."69
Black Charlestonians endured segregation just as the rest of South Carolina did. Charleston was a segregated city with segregated schools, restaurants, and theaters. Recreational facilities, such as golf courses and parks, were segregated; the best, such as Edisto Park, were available only to whites. Signs directed African Americans to separate restrooms and drinking fountains. “Charleston had a color line that divided its people and institutions.”70 Esau Jenkins relates two incidents, one in 1938 and the other in the 1940s, of white men shooting African American men. Jenkins attributed these two incidents, where the white men were not held accountable under the law, as motivational in his efforts in 1949 to organize a "progressive movement." Jenkins also remembered that before African Americans organized and registered to vote, they did not have a chance in court.71
Socioeconomic disparities
Disparities between white and African American socio-economic positions were marked. In 1950, seven thousand African American children were crowded into six schools, necessitating double shifts at four of the schools. In the Charleston area, more than 50,000 African Americans were allowed only 148 hospital beds. According to the 1950 census, the median income for African American families in Charleston County was one-third that of whites ($ 672---$ 2,007). The percentage of unemployed non- whites was three times higher than that of whites (male 13.9 percent---4.4 percent, female 10.8 percent---2.7 percent).72 Whereas only 3 percent of the white households had no running water, 27.5 percent of the non-white households had none. Inside toilets were not available in 73 percent of the non-white households, but such households were just 12.8 percent among whites.73 Also, while 81 percent of the white public schools had more than four teachers, only 27 percent of the African American schools did in 1951.74
According to the 1960 Census, the total median income for families (includes whites and non-whites) was $4,518; while the non-white median family income was only $2,149. White males fourteen years and older had an unemployment rate of 3.3 percent (3.8 for white females) compared to 8.2 percent (7.5 for non-white females) for non- white males. Only 0.8 percent of whites twenty-five years of age or older had no schooling compared to 8.6 percent of non-whites.75 In 1960-61, the number of white students per elementary school was 526; for African American students, that figure was 633. Similarly, an average of 680 white students were studying in a high school, while 810 African American students were. 76 In 1961-62, two African American high schools
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enrolled 1,783 students, while three different high schools enrolled 1,528 white students. Student-teacher ratios were 29:1 for blacks and 25:1 for whites.77
According to the 1970 census, 44.6 percent of the county's African American families lived below the poverty level, and another 10 percent subsisted just above the poverty level.78 In 1980, the median income for Charleston County African American families was half of that for white families ($10,907---$ 20,400; the comparative income in the City of Charleston was $10,726 for African Americans and $23,145 for whites). In Charleston County, 32.2 percent of the African American families were still below the poverty level, while only 6.1 percent of the white families were. As for unemployment, the figure for African Americans was 2.6 percent higher than that for whites (10.9 percent compared to 3.7 percent). Two studies in the 1980s pointed especially to geographically isolated rural areas with high proportions of African American population as impoverished and lacking adequate services such as sanitation or transportation.79
The 1990 census shows that socioeconomic disparities were still wide between the African American and whites of Charleston County. Just like a decade ago, the median income for African American families was half of that for white families ($18,603---$38,052). One-third of the African American families still lived below the poverty level. The percentage of unemployed African Americans was three times higher than that of whites. Whereas more than 80 percent of whites (25 years and older) graduated from high school, only 57 percent of African Americans did. Moreover, 31.6 percent of African Americans had no vehicles at home and 13.4 percent had no telephone installed, while such households were less than 5 percent among whites.80
Segregated schools epitomized the problem. In 1960, the last year South Carolina reported separate official figures for black and white education, half a dozen years after the Brown decision, after deliberate efforts of Gov. James Byrnes to keep schools separate and make them less unequal, and after the careful application of the Gressette segregation committee's guidelines for "equalization," nevertheless, in Charleston County schools spent $201.22 on each white student and $150.20 on each African American student. In 1961-62, according to one historian, Charleston schools spent $267 for each white, but only $169 for each African American student.81
A recent Associated Press story (8 August 2001) published in several South Carolina newspapers documented the lingering effects of discrimination. "Race has been an undercurrent throughout South Carolina history." The report discussed how slavery, then segregation divided African Americans and whites in South Carolina. "Today, a divide remains." The reporter showed that whites who have the same education as African Americans make more money. African Americans score lower on standardized educational tests, African Americans are disproportionately more in jails and juvenile delinquent centers in South Carolina, whites are healthier than African Americans, whose health problems include higher infant mortality rates. The divide is also reflected in the voting patterns of whites and African Americans. "In 400 elections between 1982 and last year, no black candidates were elected to the General Assembly from white majority districts." 82
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South Carolinians were aware of the relationship of socio-economic status and voting at least as early as 1966 when the University of South Carolina Governmental Review published a report that explained, "people of upper socio-economic status (high income and education, and holding prestigious occupations) tend to vote more frequently, are more interested in political affairs, and are better informed. The education element has been identified as uniquely important in providing adequate motivation for political participation." That section of the report concluded that "perhaps the socio-educational circumstances in which most Negroes find themselves are as great deterrents to active, effective political participation as were the legal obstacles and informal intimidations to which they have been subjected for decades."83 Scholars believe, as well, that socio- economic conditions flow in large part from state sponsored discrimination.84
Civil Rights Chronology in Charleston County prior to Act 94: The local context
In February 1944, Judge Waring ruled in favor of Charleston African American school teachers’ lawsuit that the state could not pay black teachers less than white teachers because of race.85
In 1947, Charleston County native John Wrighten (who had attempted to integrate the College of Charleston as an undergraduate) sued to attend the University of South Carolina law school. He prevailed in Judge Waring's courtroom, but, in order to avoid integrating the University of South Carolina, the state established a second law school at South Carolina State.86 Until this time all law school graduates were automatically admitted to the state bar in South Carolina. Henceforth, law school graduates would have to have passed a bar exam.87
In 1947, Charleston's Judge J. Waties Waring ruled against white primaries, and in 1948 he ruled against the ruse of a segregation oath.88 Charleston County African Americans were then able to register and vote in Democratic primaries. In 1948, former Charlestonian John McCray's Progressive Democratic Party was especially successful in a voter registration drive. On the eve of the first Democratic primary where African Americans could participate, 4,360 African American voters were added in Charleston County, leading historian Stephen O’Neill to remark that this represented "potentially a revolutionary" change for municipal politics.89
After this ruling on the white primary, Charleston Congressman Mendel Rivers initiated impeachment investigations against Waring, who was vilified by whites throughout the state and especially in Charleston. In 1950, the Southern Association for the Advancement of White People collected 20,000 signatures on an impeachment petition, nearly 10,000 of those were from Charleston County.90
In 1948 when the Charleston County Council was given some home rule power, a resident of Charleston County sued because he did not want local power. According to University of South Carolina legal scholar James Lowell Underwood, this case against the establishment of the County Council in 1948 argued that "dissatisfaction with
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political conditions prevalent during Reconstruction spawned a distaste for local government, the level at which abuse of power was considered greatest, and resulted in the omission of detailed local government provisions from the Constitution of 1895."91
In 1948, A. J. Clement, NAACP president active in the Progressive Democratic Party, ran for County Council.92
In 1950, with increased voter presence from African Americans, the City of Charleston became more responsive to the black electorate, and Mayor William Morrison hired the first African American policemen.93
To placate demands for integration of the College of Charleston, the city offered scholarships for African American students to attend South Carolina State College in Orangeburg.94
In 1950, Progressive Democratic Party candidate A. J. Clement challenged Democratic incumbent Mendel Rivers for Congress.95
In May 1950 a hundred members of the KKK drove through Charleston Heights. At this time the city of Charleston itself reported no Klan activity; however, Klan rallies were held in Ladson, Mt. Pleasant, Goose Creek, Red Top, and James Island.96
In late May 1951, in a Charleston courtroom, Charleston attorney Robert Figg defended Clarendon County against African American plaintiffs. Charleston's Judge Waties Waring, in the first known opinion by a federal judge that segregation was unconstitutional, dissented in favor of the African American plaintiffs in Briggs v. Elliott.
By 1951 African American voting strength was growing. State Senator Oliver T. Wallace, something of a liberal for Charleston, more openly appealed to African American voters. Voting machines were set up in churches and in NAACP president A. J. Clement's office to demonstrate balloting.97
At a January 21, 1952 meeting with the City of Charleston school board, three African American groups petitioned for a fair distribution of the "equalization fund," and protested the lack of an African American school board member, "there has never been a greater need for a qualified member of the board of District No. 20." The petitioners cited the Briggs Clarendon County ruling as legal precedent for claims.98
In 1952, African American leaders Herbert Fielding, J. Arthur Brown, and the Reverend Frank Veal ran unsuccessfully for the state legislature from Charleston. The chairperson of the Board of Registration reported that in the weeks before the election, 6,000 new voters had registered, half of them African Americans.99
In 1953, the newspaper reported on the 64th anniversary of Lincolnville in the northwestern part of Charleston county near Summerville. This town of about 450 people was "one of the few communities in the United States governed exclusively by
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Negroes," reminding Charlestonians of African American elected officials and black political participation during Reconstruction.100
In 1954, African Americans in Charleston openly advocated black representation on the city council and other local governing bodies. In February 1954 African American leader Robert Morrison urged representation of qualified African Americans on school boards and outlined for the News and Courier the qualifications of African Americans in Charleston. He noted the problem: "Although Negroes have over seventy percent of the votes in ward #9," he complained, "it is impossible to elect a Negro to the City Council."101
The 1954 Brown v. Board of Education decision held that the segregation of schools was unconstitutional. The decision overwhelmed Charleston, where the "city's business and civic leaders, its politicians, and especially its daily paper, the News and Courier, forcefully and prominently elevated the issue of race above all others in their attempt to defend the peninsular city," according to O'Neill. He concluded that for the next two decades, "every community social and political issue was overshadowed or at least strongly influenced by racial questions."102 The News and Courier reported that Brown was the "most radical upheaval since Reconstruction."103
Reaction in Charleston following the Brown decision was to join with the state, and other Southern states, in a program of "massive resistance" against school desegregation. Governor James F. Byrnes’ “Segregation Committee,” included two Charlestonians, Robert Figg and Creighton Frampton, who served on the committee from its founding until its official termination in 1966, the year before the Charleston County Council proposed to the Legislative Delegation that it change the method of election to an at-large system.104
In the mid-1950s, after the Brown decision, white Citizens’ Councils were very active in Charleston. The county boasted six organizations, and Micah Jenkins, the local president, served as the state president as well. One historian believes that "the anti- segregation sentiments they [citizens’ councils] expressed were shared by most white Charlestonians."105 (See more on Micah Jenkins below under “Policymakers.”)
Charleston was especially successful in drawing just the sort of district lines that James F. Byrnes urged in his 1950 campaign for governor. Byrnes had encouraged local boards to gerrymander districts so that some districts included areas with a large African American majority and other districts included sections where most of the white population resided. Charleston’s districts, as shown by Dr. William Gordon , maximized segregation in Charleston County schools. Gordon claimed that "no other configuration of district consolidation would have more effectively separated students by race into separate school districts than those chosen by the county board."106
In the 1950s Charleston high school students Harvey Gantt, James Blake, and Minerva Brown led an active NAACP Youth Council which in turn invigorated the African American community. In 1955, Realtor J. Arthur Brown became president of
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the Charleston NAACP and directed massive voter registration drives. Membership in the NAACP grew from 300 to 1,500; by 1960 there were more than 2,000 members.107
In July, 1955 the NAACP and black parents petitioned to integrate schools in Charleston, North Charleston, and Mt. Pleasant. The newspaper published the names of the petitioners, "as a means of intimidation," so that groups like the white Citizens' Council members would know who the troublemakers were.108
In 1955, after three years of unsuccessful petitions, Charleston African Americans filed suit for the use of Edisto Beach State Park. In answer to their petition the year earlier, the superintendent of Edisto had responded that the park "was established in 1935 for the exclusive use of white persons, and based on custom and precedence, we will have to deny your request." When sued, the Charleston Legislative Delegation wondered whether "to scrap the entire park system, or deal with the race issue in some other manner." They decided to close the state park. The park was closed until 1966.109
In 1956, in the presidential election, Charleston County ranked among the biggest supporters for the independent candidate, Virginia's Harry Byrd. The Citizens' Councils urged support of the Byrd ticket, and the Citizens’ Council President, Micah Jenkins, then a Democrat, was instrumental in getting South Carolina Democrats to pledge their votes to Byrd. Charleston County generally continued to vote for extremely conservative candidates.110
In 1956, when South Carolina State students demanded more equitable funds for African American higher education, the Charleston County School Board voted to revoke all financial aid to Charleston students involved.111
In 1956, Charleston Senator T. Allen Legare co-sponsored the law prohibiting South Carolina municipalities or school boards from hiring members of the NAACP. The Charleston school district then fired teachers Septima Clark, Jessica Pearson Brown, and Henry P. Hutchinson for their membership in the NAACP.112
In 1957 the first citizenship schools were established on Johns Island by Bernice Robinson. Citizenship schools trained many of the most important civil rights activists. Citizenship schools taught civics and civil rights to adults in the African American community to prepare them to register to vote. Soon Robinson was supervising five citizenship schools, in Charleston Heights, Accabee, on Cannon Street in Charleston, and on Wadmalaw Island where Esau Jenkins's daughter started a citizenship school.113
In a 1957 special election for the seat of a Charleston representative who had died, African American activist and attorney John Wrighten came in second among the four candidates.114
In 1958, African Americans sued to have the municipal golf course desegregated. After various stalling tactics, the judge ordered desegregation in November 1960. The order was finally implemented in May 1961.115
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These challenges to segregation in Charleston in the 1950s disturbed the majority of whites, but the 1960s were much more turbulent. According to historian William D. Smyth, "The 1960s, beginning with the Kress demonstration and ending with the 1969 hospital workers strike, were marked by even more challenges to Charleston's segregation."116 Returning to Charleston, James Blake, an NAACP Youth leader from the 1950s, observed that except for the few changes such as the integrated golf course, the bus terminal, and the county library, Charleston was "one of the most backward cities on the map." White Charlestonians and decision makers were shaken by the Civil Rights Movement and especially by events that unfolded around them in Charleston County. After careful study of the Civil Rights Movement in Charleston, historian Stephen O'Neill has concluded "as a city also preoccupied with race throughout its history, Charleston saw its very self-identity profoundly threatened by the civil rights movement."117
On April 1, 1960, students sat down at Kress Department Store. The modern Civil Rights movement in Charleston wrought lunch counter sit-ins, regular demonstrations, and protests by African Americans. In the spring of 1960 there were at least eight separate protests involving more than 75 students, who were charged with trespassing.118
On October 11, 1960, the African American PTA, led by Herbert Fielding and others, kept their children out of school in an official boycott because of overcrowding.119 Three days later, black parents sued Charleston District 20 to allow African American children to attend white schools.120
In 1962 the NAACP boycotted businesses that refused to hire African Americans as sales clerks.121 In response, the National Association for the Preservation of White People counter-demonstrated, picketing the stores along King Street which had agreed to desegregate. Their handbills read, "If you are in favor of preserving your way of life won't you please boycott any store who favors integration. Thank you. The Charleston Chapter of the NAPWP." On October 1 the NAPWP drew a crowd of 600 to hear Red Bethea of Dillon and Lester Maddox of Georgia.122 In retrospect, Mayor J. Palmer Gaillard observed, "Our biggest problems were not with the blacks … but … with whites." Whites boycotted and sent hate mail to those merchants who desegregated or removed the offensive "Colored Only" signs.123
In May 1962, Arthur Brown sued to desegregate Charleston schools. At this same time, Civil Rights veteran and Charleston's Burke High School graduate, Harvey Gantt, was suing to desegregate Clemson University. January 1, 1963, Gantt integrated Clemson University.124
On June 5, 1963, the NAACP announced that Charleston, last large South Carolina city still to have segregated lunch counters, was targeted for demonstrations. The state and Charleston NAACP directed a campaign to "eliminate all state imposed and state upheld racial segregation and discrimination." Among nine demands was "the
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banning of racial segregation in the schools." The first arrests began June 13 and included DeQuincey Newman of the state NAACP. By July 4, over 500 African Americans were arrested in Charleston, and 229 were already tried and convicted. Fifty- five African Americans were arrested trying to integrate Hampton Park and Colonial Lake. When protesters demonstrated in front of the News and Courier to protest its reactionary editorial policy, violence broke out between angry whites and angry protesters, and rioting ensued. The National Guard and the South Carolina Law Enforcement Division occupied Charleston. On September 11, a bomb was tossed at Canaan Baptist Church and a Molotov cocktail at an African American social club. The Mayor of Charleston held firm on segregation of playgrounds and parks, but he agreed to hire more African Americans as city workers.125
During the summer of 1963 Charleston police arrested 600 African Americans; bail bonds reported to be $1.4 million.126
On August 22, 1963, Judge Robert Martin found the Charleston public schools were completely segregated and ordered the admittance of the African American children who were plaintiffs to the previously all white schools. When eleven of the children entered the white schools, District 20 in the city of Charleston was the first school district in the state to desegregate. In this desegregation case for Charleston schools, Thomas A. Carrere, school superintendent, “expressed his own belief that genetic differences accounted for Negroes' poor scores on achievement tests."127
After Judge Martin's order to desegregate, the school board initiated three responses. It reaffirmed that segregation was in the best interests of all students and instructed its attorney to try to reverse the order. In addition, it instituted a "freedom of choice plan," which required African American parents to get the school board's approval to send their children to a desegregated school.128 It also decided to participate in the State's tuition grants program to assist parents avoid integration by enrolling their children in private schools.129
Many whites chose private schools instead of Charleston city public schools. Charleston's Reverend Eugene Kelly of St. John's Catholic Church criticized the private school movement in Charleston, arguing that it would “perpetuate an evil.” He wrote that "the fundamental point is that racial discrimination is contrary to the central teaching of Christ and thus evil, and no amount of legal maneuvering or camouflaging can change that point."130
In the 1964-65 school year, the Charleston School District was told it had to totally desegregate, leading to more white flight and more students attending segregation academies.131 In 1966, only 185 African American students attended desegregated schools in Charleston.132
In 1964, Charleston was among the strongest bastions of support for Republican presidential nominee Barry Goldwater after Lyndon Johnson signed the Civil Rights Act of 1964.133 This election illustrated again that African Americans were voting, and
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voting differently than most white Charlestonians. According to Esau Jenkins, on Wadmalaw Island nearly all whites voted for Goldwater. Jenkins contended that it was the African Americans on places like Wadmalaw and Johns Islands that voted for Johnson and the Democrats in 1964. In 1966 the University of South Carolina Governmental Review confirmed Esau Jenkins's observations that in South Carolina "all of the predominantly Negro precincts, except one … gave majorities to President Johnson in 1964."134
This phenomenon of increasing black voting was noticed. The white “Charleston Citizens' Council” put out a brochure in 1965, "Why Must Greater Charleston Organize?" and their first answer as to why the Citizens' Councils should organize was "(1) that the integrationists and bloc voters are themselves organized to a dangerous pitch.” They listed as their goals, "local resistance to un-Constitutional integration," a "protest against the race-mixing mania of the times," reversal of the "‘Black Monday’ decision of 1954 and repeal of the misnamed 'Civil Rights' Act of 1964," opposition to “forced integration in the Greater Charleston area," and the "maintenance of racial integrity."135 In 1967, the News and Courier characterized the Citizens' Council as "instituted to fight for states' rights and racial integrity."136
June 1965, the Charleston County Legislative Delegation, in "a break with tradition" according to the News and Courier, "in effect appointed a Negro to the board of trustees of Charleston School District 20." The paper reported that the seventy-one year old Methodist minister, who was not a member of the NAACP, was the first African American "who has won a public school trustee post for Charleston" in the twentieth century.137
In 1965, Herbert Fielding and others formed the Democratic Party's Political Action Committee (PAC). Historian Stephen O’Neill described the PAC as the "black wing of the Broad Street machine."138
In 1967, black leaders Fred Moore, Lilliemae Marsh Doster, and Reginald Barrett formed a rival to PAC. This "Committee of 100" considered themselves more progressive than the PAC and less dependent upon white politicians' wishes.139
In April 1967, Judge Robert Martin ruled that the Charleston School Board had failed to comply with his directives, and he struck down the freedom of choice plans that required parents to make a request from the school board if they wanted to transfer their children. For the 1967-68 school year, every parent could select the school they wanted their child to attend.140
On July 30, 1967, Dr. Martin Luther King was the speaker at a voter registration drive. On the same day, about 15 miles away, near the predominantly African American community of Ravenel, the Ku Klux Klan held a rally.141
In 1967, Charleston Senator Charles Gibson introduced a bill to consolidate the Charleston County School districts. Debate over this bill dominated the South Carolina
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Legislature, set off a record filibuster, and divided both the Charleston Legislative Delegation and the people in the County. The discussion of the act included issues of race, busing of children, and transfer of teachers to different districts. The bill was approved 8 June 1967 as Act No. 340. (See the relevant discussion under "Policymakers.")
In 1968 some three thousand protesters participated in the Southern Christian Leadership Conference's Poor People's March in Charleston.142
On March 17, 1969, racial tensions festering in Charleston erupted in the 1969 Hospital Strike, described by a major labor historian as "one of the South's most disruptive and bitter labor confrontations since the 1930s."143
The effect of this history has been one of political alienation for much of the African American community. According to historian Walter J. Fraser, when Joseph P. Riley ran for mayor of Charleston in 1975, he "hoped to overcome" the alienation from government of African Americans and especially to attract those young African Americans who "see most vividly the cruel contrast of our dual society." In his first mayoral bid Riley told the newspaper, "In the city of Charleston … black people have never had a piece of the action." 144
In the midst of the turbulence of the Civil Rights Movement in Charleston, local decision makers, like politicians everywhere, had to have noticed a new phenomenon: increases in African American voter registration.
In 1956 there had been 200 African Americans registered on Johns Island; by 1960 there were 700, and "voter turn-out was often one hundred percent." Also, in 1956, in Ward 11 of the City so many African Americans had registered to vote that a few were slated and elected to Democratic Party offices in that ward.145
Many African Americans from Charleston County had attended Highlander Folk School, and in 1959 Highlander students came to Charleston to work on a voter drive before the June 1959 election. They assisted some 1,422 African Americans in registering to vote.146 Charleston Clerk of Court, A. J. Tamsberg, wrote to Charleston News and Courier editor, Thomas R. Waring, about the increasing strength of the African American vote, "Frankly I doubt the advisability of publishing this information in full, thereby making it available to negro leaders. Some of it is quite startling."147
Whereas Esau Jenkins had estimated that 5,000 African Americans were registered to vote in 1954 in Charleston County, he believed in 1960 there were more than 10,000. Jenkins and the NAACP estimated nearly 14,000 in 1964. Jenkins announced in the News and Courier March 1965 that "We are hoping to double our efforts this time."148
During the 1967 mayoral primary, the News and Courier stated, "Mayor J. Palmer Gaillard’s slate includes a Negro candidate from Ward 9, a predominantly Negro
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residential area."149 The next day, the paper reported that in "Wards 9, 10, 11: 5000 of 7000 voters are Negroes. Ward 12: Largest in city: 5299 registered voters, about half Negro."150
This interest and notice of increasing voter registration of African Americans accompanied another vivid concern: Bloc Voting. White political leaders were concerned about African Americans voting as a bloc, but not of whites doing the same. When politicians used the term bloc vote, they were not referring to the white bloc vote.
In the midst of all this turmoil about civil rights, the white people of Charleston were very concerned about the potential voting power of the African American community, what the newspaper referred to the “bloc vote.” As early as 1950, the Charleston News and Courier cautioned white South Carolinians about the increasing strength of the African American bloc vote. One editorial asked if officeholders in South Carolina would “henceforth be elected in primaries in which negroes as a bloc shall cast the deciding vote?…Shall government in South Carolina in the future be the product of election in which the colored voters will have and will exercise the balance of power?" The editorial was commenting on a dispatch from William D. Workman, Jr., correspondent of the News and Courier, published a few days earlier on the 1950 Democratic primary, where Olin Johnston beat Strom Thurmond for the Senatorial nomination. Workman had carefully analyzed voting in Columbia's Ward 9, "the population of which is overwhelmingly colored," and the home of former Charleston African American newspaper editor, John McCray. Workman's in-depth study of Columbia’s Ward 9 had to resonate with Charlestonians aware of the predominantly African American wards in Charleston. As white Charlestonians were warned by the News and Courier, "it is as well to face as certain that the herded or 'bloc' vote of negroes will be much larger in future primaries." 151
When white leaders in Charleston recognized the need to improve the African American schools in order to maintain segregation (following the recommendations of the Gressette Segregation Committee), NAACP opposition helped defeat the school bond referendum in May 1957. In this, the first demonstration of African American political power in Charleston since Reconstruction, President Arthur Brown claimed a "moral victory for the NAACP." The newspaper reported that the bond issue failed largely because of “Negro opposition” as a bloc vote.152
In 1959, the Charleston News and Courier, in an article entitled "Bloc Voting," warned that those who instructed African Americans voters to be "bloc conscious" disserviced the black community. The paper was referring to the NAACP's distributing sample ballots and identifying the lesser of evils among Democratic candidates in the primary.153
In June 1965 Albert Watson, Republican candidate for Congress, reported that he was not looking for Negro support. His political advertisements contended that the Democratic Party was “courting minority bloc votes.”154
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In 1965, when Herbert Fielding and others formed the Democratic Party's Political Action Committee (PAC), they hoped to pull the African American community together in political unity. According to historian O'Neill, PAC believed, "By speaking with one voice and delivering the 'bloc vote' of African Americans… they could wield more influence with the city's white Democratic leadership."155
In a 1966 report, The University South Carolina Governmental Review analyzed African American voting in the Democratic primary of 1964. One section of the report was entitled "Bloc Vote?" The published report explained that in the 1964 presidential election some of the predominantly African American precincts voted for President Lyndon Johnson "by overwhelming percentages of 80, 90, and even 100 percent. Evidence from other sources indicated that as many as 90 to 95 percent of the Negroes in South Carolina … voted for President Johnson."156
In 1967, one editorial in the Evening Post feared that school consolidation "is only the first payment for the bloc vote. They have others up their sleeves.”157 In the legislative debate on the Charleston County School Consolidation Bill, Republican Senator Eugene Griffith of Newberry County commented specifically on the Democrats’ “bloc Negro vote.”158 And at that time the News and Courier reported, “The Negro vote, over 96 percent Democrat, obviously played a major role in the Democrat victories.”159
In May of 1968, when an African American challenged Congressman Mendel Rivers in the primary, the newspaper wrote, "Republican sympathizers who refrain from voting in the Democratic primary might leave the decision to bloc voters."160 A little over a week later, the paper remarked, “The time has not yet come—at least, not in South Carolina—when a black man’s candidate has built in advantage.”161 Commenting that Herbert Fielding, the only African American candidate for the House, came in last of the fourteen Democratic candidates in the primary, the paper reported that a Democratic Party official "pointed out that while Fielding did well in the predominately Negro wards, he wasn’t the top vote-getter in some of the larger Negro districts.” The article also noted that no Republicans voted in "the 1st Precinct for the city of Charleston’s predominantly Negro Ward 9."162
After the general election of 1968, the newspaper attributed the Democratic victory for state and local candidates in Charleston County to the bloc vote of African Americans.163 Four days later the paper again characterized the African American community as bloc voting for Democrats and "pulling the master lever."164 Following the 1968 elections, Republican Party County Chair James Edwards reflected, “We were caught in a crossfire created by the bloc vote composed of the minorities of our county on one side and the embittered George Wallace supporters on the other.”165 In January of 1969, the newspaper editorialized against the renewal of the Voting Rights Act and the unfairness of its efforts "to enlarge the number of Negro voters."166 In May of that year, County Republican Party chairman and former councilman Micah Jenkins "denounced the 'bloc' vote.” He said that any party “which owes its election to the support of such groups cannot best serve the interest of all people.” (Jenkins was on County Council and
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was chair of the committee that recommended the change from district to at-large when the issue was first proposed.)167
It was in this context of turbulent racial considerations that the Charleston County Council recommended, and the Legislative Delegation changed, the method of election from district to at-large. All County Council members and all legislators were white men at that time. With this general background of changing racial dynamics in Charleston, especially more African American voters and the fear of minority bloc votes, this report now looks at the sequence of events leading up to the change from district elections to at- large in 1969.
II. Sequence of Events leading to Act 94, the Change of Method of Election from District to At-Large
Both the general background of race relations as well as these specific events in Charleston have impact on political decision-making. At the time when the Charleston County Council changed its method of election from a district system to at-large, there was a "heightened awareness of race."168 A review of this sequence leaves no doubt that racial considerations were very much in the mind of Council Members and members of the Legislative Delegation when the change to at-large elections was proposed in 1967 and enacted in 1969. Indeed, in the very year that the Charleston Legislative Delegation, meeting in Columbia, was proposing the change of method of election of County Council to at-large, a state Election Law Study Committee was hearing expert testimony. Under the headline, "Professor Says Constitution Anti-Negro," the Columbia State reported on Clemson University Political Science Professor Jack E. Tuttle’s explanation that "South Carolina’s 1895 constitution was tailor made to prevent Negroes from voting. ….The primary purpose of the 1895 constitution is to disfranchise the Negro,” Tuttle testified "Everything else is secondary.”169 Race was very much at the forefront of discussions in both Charleston and in the South Carolina General Assembly in 1967.
The change in Charleston County from a district method of election to an at-large system has a complex legislative history. Unlike counties controlled entirely by their Legislative Delegation, Charleston was granted a degree of home rule in 1948. Charleston was allowed an elected County Council which had some control over local affairs, including the power to set their budget.170 By the early 1960s Charleston County Council had eight council members elected under a district system. The city of Charleston constituted one district; three residents were elected from that multimember district. The area east of the Cooper River comprised a single-member district. Two council members were elected by voters from the multimember district west of the Ashley River and outside the corporate limits of Charleston. Two council members were elected from two single-member districts in the North Charleston area. "One member shall be a resident of the area of the county included in St. Philip's and St. Michael's Public Service District as constituted on March 16, 1956, and shall be elected by the qualified electors residing in that area of the county. One member shall be a resident of the remainder of the county lying between the Ashley and the Cooper Rivers and shall be elected by the qualified electors residing in that area of the county."171 In 1963, the state
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legislature amended the 1962 Act to add an additional member from North Charleston to the County Council making a total of nine council members. That third member of the North Charleston district as elected from the combined two existing North Charleston single-member districts and could live in either district. However, the other two members of the North Charleston area continued to be elected from each single-member district.172 The first county councilman elected to that at-large seat within the North Charleston "district" was John E. Bourne, Jr.
The change to at-large elections had its origins in the 1967 session of the General Assembly. In 1966, while on County Council, Bourne led a Republican charge that captured three of the four Charleston County State Senate seats in the newly apportioned Senate. Shortly after taking his seat in the 1967 legislature, Senator Bourne introduced Senate Bill S131 to amend Section 14-1162, Code of Laws of South Carolina, 1962, as amended, "to provide that members representing a certain area north of the City of Charleston shall be elected at large." In the Senate there were no objections; the bill was placed on the "Local and Uncontested Senate Calendar," and, after its third reading on 8 February 1967, it was sent to the House.173 According to the newspaper, "Bourne said the bill would put the North Charleston councilmen on the same basis as those from other areas of the county, all of whom run at large." At that time council members ran at-large only within their multimember district; the council member from East of the Cooper River was elected from a single-member district, and that would not change under Bourne’s proposal.174 On 9 February 1967, the Charleston News and Courier reported that "All three Charleston County Council members from the north of the city limits henceforth will run at large, if the House approves a bill passed yesterday by the Senate." Although the newspaper speaks of "at-large," Bourne's bill intended for the three North Charleston council members to run at-large within the district of North Charleston, just as three council members ran for election in the multimember district of the City of Charleston.175
In the meantime, another development, this one for a comprehensive change in the method of election, was unfolding in the County Council’s Legislative Study Committee. Before Bourne's Bill S131 was even sent to the House, the local newspaper indicated that the County Council's Legislative Study Committee (later referred to as the Government Study Committee) was considering changes for council, including having all County Council members elected at-large throughout the county. The newspaper reported on February 6, 1967 that the County Council's Legislative Study Committee, "headed by Republican Councilman Micah Jenkins," would soon submit a report to the Legislative Delegation asking for more authority and that the Legislative Delegation looked favorably on the proposed request.176 On 8 February the newspaper reported that Jenkins's committee would recommend a "strong county manager form of government." Under the council committee's proposed plan, Chair of the Committee Jenkins disclosed, "Six county councilmen and a chairman nominated by petition would be elected in a non- partisan election and would run at large for four year terms." According to the article, "Partisan election within districts is currently the rule. The chairman is elected by the Council."177
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On 12 April 1967, in an article subtitled "Jenkins Proposal to be submitted today," the paper explained that the number of council members would remain at nine, as it was presently constituted: "County Council shall be composed of nine members. One councilman shall represent East Cooper; City of Charleston, three; North Charleston, three; and West Ashley, two. The councilmen all would be at-large delegates." According to the newspaper, "The proposal [was] drawn up by Councilman Micah Jenkins and his Government Study Committee of County Council."178 On 13 April in an article discussing County Council's meeting with the General Assembly Delegation about their proposed request, the newspaper reported that "House members could not agree on amendments to a bill earlier introduced in the Senate by Sen. John E. Bourne Jr. Bourne’s bill would have council members from North Charleston 'run at large.' Rep. LeaMond asked that the bill be amended to have all council members run at large throughout the county—one of key items asked for by the council during its appeal to the delegation earlier in the morning."179 On 16 April 1967, The Charleston News and Courier editorialized, "the council is now asking that elections be 'at large.' Members still would come from the city, the North Area, and the regions west of the Ashley and east of the Cooper, but they would be elected in a countywide vote."180
Responding to the County Council's request, R. E. Scarborough, Chair of the House Delegation, presented an amended bill to the full House, now requiring all council members to run at-large with residency requirements and increasing the pay of council members.181 The News and Courier gave the salary issue predominance, but the newspaper also warned that "Future candidates for Charleston County Council are likely to have to seek votes throughout the county, rather than in their home districts." The newspaper reported that the "predominately Democratic Charleston County House Delegation tacked an amendment onto a bill by Charleston Republican Sen. John E. Bourne Jr. to make it mandatory that council candidates run at large. In his Senate bill, Bourne had sought to have only the three councilmen from North Charleston run at large instead of by districts. But the Democrats in the House didn’t like Republican Bourne’s proposal. Their amendment to his bill makes it mandatory that council candidates run at large throughout the county."182 This amended bill established the at-large election with the residency requirements for one representative East of the Cooper River, three from the City of Charleston, three from the North Charleston area, and two from west of the Ashley River. This was a dramatic alteration. The House amendment of Bourne’s bill changed from the idea that the two members who ran from single-member districts in North Charleston would run at-large within the North Charleston area (just like the third member of that multimember district) to the idea that all members of the County Council run at-large in the entire county.
The amended S131 bill was sent back to the Senate and considered on June 8, 1967. Senator Bourne recommended that the Bill be referred to the Charleston Senators. Then on June 28, the Senate refused "to concur in the amendments proposed by the House."183 On July 5 Representative Scarborough "insisted upon the amendments," and a Committee of Conferences was established to work out differences and come up with a compromise.184 According to the News and Courier, “Legislation changing the election process for Charleston County Council members goes to a Senate-House conference
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committee Thursday morning for an effort to reconcile differing provisions. As passed by the Senate, all three North Charleston members henceforth would run at large. At present, one is an ‘at large’ seat and the other two have a residence restriction. The House totally rewrote the bill to make all nine council members run countywide but reside in one of the four appropriate districts.”185
The Conference Report split, however, with a Majority Report recommending that the Senate concur with the House-amended Senate Bill 131. “A six-man conference committee of Charleston Senate and House members over-rode the objections of two of its members yesterday with a 4-2 favorable vote on a bill that would have all county councilmen run at large and get twice as much money.” Bourne, however disagreed; “A former member of council from North Charleston, Bourne felt all three councilmen in the area should run at large within that district.” He did not approve of the House amendment that provided “that all councilmen be elected by all the county voters.” Representative Scarborough wanted people to know that the Charleston County Council approved of the change. “Scarborough said after the meeting that Jenkins, chairman of the committee, again restated that County Council unanimously had approved the pay increase and the requirement that they run at-large.”186
The House adopted the Majority report.187 However, the next day the Senate did not: “However, both Bourne and Cabell officially will refuse to accept the report today, thus killing the bill.”188
In the next Legislative Session, an almost identical bill was introduced on 18 April 1968 as House Bill 2891, "to require members to be elected from the county at large, to designate residency requirements and increase compensation for council members." After its three readings the bill was sent to the Senate on 24 April. It was read for the first time in the Senate on 24 April, was placed on the Local and Uncontested Calendar, and received its second reading the next day.189 On 25 April the paper noted the bill "that would have Charleston County Council candidates run at-large" cleared the House. On 1 May 1968, the paper reported that the bill "would double council members’ salaries.…At the same time, the amendment would require anyone now seeking a council seat to run at-large, both in the primary and general election."190
On 1 May 1968, Republican Senators Cabell, Grice, Worsham, and Bourne made amendments about the timing of the bill, moving up its effective date. The newspaper reported, "The proposed at-large election of members of Charleston County Council would become effective this year under an amendment agreed to yesterday by Charleston’s four Republican senators." The paper elaborated on the Senators' amendments. "A bill that would require Charleston county councilmen to run for election countywide was amended yesterday by Charleston’s four Republican senators, but its Senate passage was delayed. Basically the senators’ revision of the House-passed bill would require at-large elections in this year’s four council contests. The House bill would make the effective date Jan. 1, 1969.…The senators have indicated they don’t intend passing the bill, which also includes doubling the salaries of the council members, until they learn the fate of their council measure in the House." (The Senate had sent to
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the House a separate bill strengthening the county management form of government.) The article added that the House Delegation had received a telegram from a "Republican candidate for council in the city, stating that he endorses the at-large elections this year."191
On 9 May 1968, the Charleston News and Courier described the bill to change the method of election to at-large for county council as "controversial" and "unresolved"; the House Delegation "decided to pass over another Senate-amended bill dealing with at- large elections for the Council members. The House version of the bill set the effective date at Jan. 13, 1969. However the senators would have the at-large elections go into effect immediately, which would effect [sic] up-coming elections for four council seats."192 After the third reading on June 27, 1968, amended House Bill 2891 "returned to the House with amendments of the Senate." Amendments as to the effective date of the bill did not change the method of election and residency requirements, which remained the same as the House-amended Bill S131 from 1967. The House did not act on the Senate-amended H2891 bill.193
Newspaper discussion in 1969 focused more on the salary increase for County Council members than on the change from district to at-large elections. For instance, the title of the first article to discuss the change was "Charleston County Council Seeks Big Salary Increase." Barbara S. Williams, staff reporter for the newspaper, wrote, "Charleston County Council members yesterday asked local legislators to more than double their salaries and last night agreed to indicate their willingness to run for election at-large." Chair of the House Delegation, Representative F. Julian LeaMond, "observed that last year the proposed pay raise was tied to a provision that council members run at- large." Noting that "the old council was on record as favoring elections at-large for all members, the new council was asked for some expression by the legislators." On 7 January 1969, the County Council voted "seven to one to endorse the at-large elections." The lone dissenter was a district representative from North Charleston, Councilman Miner W. Crosby.194
On 26 January 1969 in her column, "Dimensions," Barbara S. Williams noted that the County Council was now twenty-one years old. Representative Joseph P. Riley, Jr., reported for a special legislative committee and suggested that County Council should set its own salary. A long article by Williams discussed the salary issue on 5 February and only in one sentence under the heading "At-large Elections" was the change of method of election mentioned: "The lawmakers also have indicated they are willing to go that high if raising the salary ceiling is coupled with a requirement that the members run at- large."195 On 12 February 1969, Williams's column, entitled "Legislators Reach Accord on Lifting Salary Ceiling" (and then in smaller letters the subtitle, "At-Large Elections Planned for Council"), announced that "While the bill agreed to by the House hasn't yet been drafted, it was indicated yesterday that councilmen still would be required to live in about the same districts now represented. They would be voted on by all the residents of the county, however." House members who supported raising the Council salary ceiling imposed by the Legislative Delegation "pointed out that council would be responsible to
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the same persons who elected the legislators under the stipulation that the members run at large."196
On 18 February 1969, House Bill 1262 "to provide for election 'at large' in the county and to increase council members' compensation" was introduced and referred to the Charleston delegation.197 On 19 February, the newspaper reported that "A proposal that would have the effect of giving North Charleston three at-large seats on county council will be offered to local legislators here today." Discussing the bill introduced the previous day, the reporter explained that it "would put all council elections on a county- wide basis. That bill retains the current residency requirements, but allows all Charleston County residents to vote on all members of council. An amendment will be presented to the bill in a legislative delegation meeting today that would remove the district residency requirements within North Charleston and allow any resident in that area to run for any of the three allotted seats." As reported, "The existing law provides that councilmen live in a specified area and be elected by the residents of that area. The countywide election bill for council introduced yesterday retains the other district residency requirements.…All would be voted on by all residents of the county."198
House Bill 1262 received a second reading on 20 February 1969, and the Delegation proposed and adopted an amendment to alter the wording "by striking the three sentences beginning with 'one' on line eight and ending with 'Rivers' on line fifteen and inserting "Three members shall be residents of the area of the county between the Ashley and the Cooper Rivers not included in the City of Charleston." This wording for House Bill 1262 is basically the same as the 1968 House Bill 2891 and the 1967 amended Senate Bill 131 and is identical to the previous bills in the method of election and areas of residency requirements.199
After a third reading in the House, the bill was sent to the Senate on 21 February 1969, was read for the first time on 25 February, and placed on the Local and Uncontested Calendar.200 Then Senator Robert B. Scarborough asked the Senate to adjourn debate on the bill until he could read the House amendments. According to the News and Courier, "The amendment would have the effect of giving North Charleston three at-large seats on council. It removes the boundaries and allows anyone within the area to run for any of three seats designated for that section."201 Apparently Senator Scarborough was satisfied with the amendment, especially since it was basically the same as the bill he had supported and sponsored the previous two legislative years as a Representative. The bill passed on March 5, the title changed to Act 94, and on March 18, 1969 was so entered. This change in the method of election and the areas of residency requirement was the culmination of a process that had begun in 1967 with the recommendation of Micah Jenkins's county council committee and with John Bourne’s Senate Bill S131 as amended by the House.202
Motivation for Change of Election:
Ordinarily when incumbent members of a governing body propose a change of election from the method from which they themselves were successfully elected, they
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provide a reason. In this case, in April 1967 when the County Council members recommended to the Legislative Delegation that they change the method of election for County Council from district to at-large, they did not provide an explanation. A question we need to ask is why the County Council proposed in 1967 to change from a district to an at-large method of election. In my own research and the research of other historians writing about a change from district to at-large elections, there are four commonly offered explanations for such a change.203
First, proponents often argue that the move to at-large elections was motivated by a desire for good government. Second, an at-large system was perhaps selected because it was politically advantageous to participants, that is, a change from a district system to an at-large election system gave a partisan advantage. Third, the county might argue it had to adopt an at-large system to satisfy the one-person, one-vote principle. Fourth, and finally, given the timing and sequence of events, one might expect racial vote dilution to be a part of the motivation, as it was in other jurisdictions that went to at-large systems of election at that time.
First of all, in all my research in contemporary journals, newspapers, minutes of the Legislative Delegation, and minutes of the County Council, I found not a single reference by either a member of the County Council or the Legislative Delegation making the argument for at-large elections as a good government reform. Generally, decision makers who promote "good government" as an argument will state that the change from district to at-large promotes the election of a better candidate who has a broader view of the whole, and responsive to the interests of the county as a whole, rather than a merely parochial candidate who is elected by a specific district.
To the contrary, two Council members presented persuasive arguments for districts. Regarding district elections, Council member J. Mitchell Graham, long-time chair, explained in December of 1965 that Charlestonians liked districts. The existing election plan gave Charlestonians "the guarantee of representation from their own districts as the council members are elected from representative areas from the county."204 In 1967 John Bourne also liked districts. Remarking that he “studied at great length the advantages and disadvantages of county councilmen running county-wide,” he stated his conclusion for the newspaper: “many good and capable men who would like to serve in county government would be precluded because of the expense, time and work involved in a county-wide race. It is my opinion, having served on County Council, that all councilmen feel a responsibility to all county affairs and are not sectional or biased in their opinions concerning county-wide government.” Thus, Bourne’s good government argument was for districts.205 No council member nor legislator at the time offered a differing opinion. With no evidence to support this good government justification for a change, I discount it.
Second, one might hypothesize a partisan advantage in at-large elections. In this case, however, no partisan advantage was present. Neither Republicans nor Democrats in the County Council or the Legislative Delegation offered any partisan political justifications for the change. The struggle for party power between Democrats and
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Republicans did not affect the change to at-large elections in 1967-69; indeed, the Charleston Republicans controlled the Senate Delegation, the Democrats the House Delegation, and both were elected from a multimember district system. Since both Democrats and Republicans wanted at-large elections, party advantage was not a reason for the change. On 3 May 1968, reporter Barbara S. Williams wrote, "The response from the [County Council] candidates on whether they would be willing to run on an at-large basis this year, had no apparent relationship to party affiliation. Both Democrats and Republicans favor the idea, and candidates from both parties also expressed opposition."206
The third possible rationale for changing to at-large elections in the 1960s was the idea that it was necessary to satisfy the one-person, one-vote principle resulting from Reynolds v. Sims court ruling in 1964.207 As early as 1966 some jurisdictions in the South were going to at-large elections citing the one-person, one-vote ruling as their justification. However, the explanation that the move to an at-large council system was mandated by the one-person, one-vote ruling does not hold up. When the defendants in Smith v. Paris in 1966 in Alabama claimed that the purpose of the at-large election resolution was to comply with the one-person, one-vote principle, Judge Frank Johnson dismissed the excuse as "nothing more than a sham," observing that the jurisdiction kept the same malapportioned districts as residency requirements for candidates in the at-large system that replaced the district system, rather than adjusting "the population disparities between the beats [districts] themselves” while retaining the traditional district system.208
In Charleston also this reasoning seems to be a sham. When the change to at- large was first proposed in 1967 by the County Council and debated in the legislature as House-amended Senate Bill S131, neither council members nor legislators mentioned that the change had anything to do with one-person, one-vote. Since the one-person, one- vote explanation was not invoked until nearly a year later, it appears somewhat disingenuous to claim it as the rationale. When the newspaper explained on 25 April 1968, "The county Council bill was re-introduced this year in view of the recent U.S. Supreme Court decision that applies the one-man, one-vote rule to local governments,"209 it was the very first time that it mentioned the one-person, one-vote issue in relationship to the proposed change. But the change from district to at-large election system for the Charleston County Council was the same bill introduced in 1967 without any such connection to one-person, one-vote.
On 1 May 1968, the paper reported that "The House passed bill was revived here recently in view of the U.S. Supreme Court decision applying the one-man, one-vote rule to local governments. Rep. R. B. Scarborough said he believed the council’s legality could be questioned unless the members were elected at large. However, the House bill on the at-large elections would delay the effective date until Jan. 1, 1969."210 Two days later, the paper explained, “Several of the council candidates questioned the wisdom or necessity for the county-wide races. In the past, the nine-member council has been elected on a district basis." In response, House Delegation chairman Robert B. Scarborough and Senate Delegation chairman Nat W. Cabell said that "they don't believe the court decision leaves any choice in the matter." 211 But the truth is that they knew
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otherwise because of a clarification they received from the State’s Attorney General in a letter dated 15 April 1968.
In 1968, after the Supreme Court held that one-person, one-vote explicitly applied to local government in Avery v. Midland County,212 Chair of the Charleston House Delegation, Robert B. Scarborough, sent a letter of inquiry on 11 April 1968 to the South Carolina Attorney General, Daniel R. McLeod. Scarborough included a copy of the proposed 1968 House Bill 2891 (which was identical to the 1967 Amended Senate Bill 131 and basically identical to the 1969 House Bill 1262 that became law). Scarborough wrote that "Because of the recent Supreme Court's decision concerning County Government in Texas," the House Delegation was "concerned with the legality of Charleston County Council," composed of nine councilmen from four districts. He requested an opinion on the at-large system proposed for the 1968 session and asked for "your thoughts as to the constitutionality of the make up of County Council if the enclosed or similar type of Bill is not enacted."
In his response letter of 15 April 1968, Attorney General Daniel R. McLeod made several points. One, that at-large elections solved the one-person, one-vote rule. Second, that even with at-large elections, residency districts could be malapportioned. Third, that district elections were also a legal alternative if they were to meet acceptable tolerance standards. McLeod elaborated, "I would assume that greater tolerance would be permitted in county council representation than is permitted in the case of the State Legislature or in Congressional districts; but, in any event, there must be some reasonably corresponding relationship between the number of person in each district."213 In short, the South Carolina Attorney General determined, and so advised Scarborough, that Reynolds v. Sims and/or Avery vs. Midland County did not require at-large elections.
Again in 1969, Chair of the House Delegation, Representative F. Julian LeaMond, noted that, “as a result of recent court decisions, council is ‘walking a tight rope before someone attacks” the manner in which the members are elected. In early January 1969, Councilman John P. O'Keefe made a motion that "if the delegation feels it is Constitutional and necessary," that the council would agree to at-large elections.214
At this same meeting, however, Representative Joseph P. Riley, Jr., informed the County Council and the Legislative Delegation that the county council did not have to change from a district to an at-large election method because of the one-person, one-vote principle. It is very important to note a statement in the 8 January News and Courier. "Rep. Joseph P. Riley, Jr., suggested that members could either all run at-large or the body could be reapportioned every 10 years."215
From Riley's statement, County Council knew that they could keep districts as long as they reapportioned correctly. And, the Legislation Delegation had the letter from South Carolina Attorney General McLeod, explained above, that the one-person, one- vote rule did not mean district elections were no longer allowed.
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Likewise, the newspaper preferred to ignore that district elections were allowed as long as districts were apportioned correctly. In February 1969, Barbara Williams wrote about the proposed salary increase, "Council members, according to a recent court decision are going to have to run at-large," and that the legislative delegation believed that if council members "are going to have to run county-wide, an increase certainly would be warranted."216
Not long after this, political leaders in Charleston County, wanting to consolidate county and city government, chose a district method of election in a mixed plan with some at-large seats. In early November 1969, the Charleston County Charter Commission proposed twelve equal population "councilmanic" districts and three at-large seats. The newspaper reported that "The charter would require that within six months of each official federal or state census council would have to be reapportioned on the basis of population."217 So, to merge city and county government, political leaders were willing to consider a district method of election and finally did recommend a district election method for the 1974 referendum on county and city consolidation.218 Clearly, if they really thought the one-person, one-vote ruling gave them no choice in moving to an at- large method of election for county council, then it is difficult to explain why they immediately proposed districts in order to get consolidation.219 That the County was willing to go to district elections to get consolidated county government is further evidence that the one-person, one-vote was not a true reason.
The evidence at the time contradicts the claims that the county had to adopt at- large elections to satisfy the one-person, one-vote ruling. To reiterate, in 1967 when the County Council first recommended the change from district to at-large elections, and again in 1967, when the at-large system was introduced as amended Senate Bill 131, not one mention was made of the one-person, one-vote concern. The one-person, one-vote principle served as an excuse, not a valid reason. Other forces were at work in 1967-69 in Charleston County.
By dismissing these three arguments as fallacious and disingenuous, we are left with the reasoning that the at-large system was adopted for discriminatory purposes. This is the only reasonable explanation that fits the evidence for the shift from district to at- large elections in Charleston County. In addition to fitting the evidence, this explanation fits the totality of circumstances, that is the history of discrimination in Charleston and in South Carolina.
First, the at-large plan adopted was effective in diluting the increasingly large African American vote for members of the Charleston County Council because the preferred candidate of the African American community would usually have to run head- on against a white candidate supported by the white community, which was in the numerical majority. Staggered terms increased the problem for an African American candidate. In addition, as opposed to the first plan proposed by Micah Jenkins, Chair of County Council's Legislative Study Committee, as revealed to the press on 8 February 1967, these elections were partisan. This meant more time and more money for candidates who had to campaign twice, for the primary and for the general election.
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Moreover, if a candidate did not receive a majority of the votes in the primary, a runoff election was required.
At this time, the full slate law was still in effect, though there was discussion of repealing this dilution-enhancing device. A newspaper report on the full slate law in January 1969 quoted African American leader Bernard Fielding, “the law makes it virtually impossible for any minority member to be elected.”220 By calling attention to the discriminatory effects of the full slate law, Fielding was also calling into question the dilutive effects of at-large elections. The paper elaborated some weeks later that "Some Negroes take the position a member of their race would have little or no chance in a head-on race against a white opponent."221 And then, less than two weeks later, the paper explicitly linked the at-large elections with the full-slate law: "During a discussion in a State Election Law Study Committee meeting yesterday, a member of the legislative council said the full-slate law would apply to countywide council races."222
Furthermore, because Charleston County is large, a hundred miles in length, with rivers separating some of the residential areas, it is difficult to campaign throughout the entire county. African Americans are generally not as high on the socio-economic scale as whites in Charleston County, and the expenses of an at-large campaign are staggering, many times as expensive as a district election, where a candidate can win by expended time and effort canvassing door-to-door. Moreover, the centers of significant financial resources in Charleston are disproportionately controlled by whites.
Racial Bloc Voting: The problem with at-large elections is the accompanying presence of racial bloc voting. When whites have a majority of the voting-age population, and if whites deliberately vote against candidates from the African American community, as whites did in Charleston County, then they can prevent African Americans from winning office by using an at-large method of election. The dilutive effects of at-large voting are enhanced by the use of staggered terms, such as in Charleston County, and of the full-slate law that was in effect in South Carolina at the time. If voting is racially polarized, then at-large elections prevent minorities from electing candidates of their choice.
Responding to white charges of African American bloc voting in 1951, NAACP President A. J. Clement protested, "We do not like bloc-voting, but you have taught us many of its advantages. You have used it for 50 years against us….You voted for all of your political candidates as a solid bloc on a platform of racism… you put men into office and statutes on the books that make me go in side doors, sit in galleries, ride in the rear of buses."223
In 1990-91, while serving as an expert witness in a Charleston County school board case, I analyzed elections in Charleston County, South Carolina. I have also studied analyses of elections in Charleston County by Dr. James Loewen, by Dr. John C. Ruoff, and by Dr. Harold Stanley. All of these statistical analyses demonstrate that racial polarization was the dominant trend in elections when a white candidate opposed an African American. Moreover, in 1974 when the Department of Justice objected to the
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"racially motivated annexations" to the City of Charleston, it cited the dilutive effect of the city's at-large election system "with the readily apparent pattern of racial bloc voting in Charleston."224 Again in 1975, the Justice Department objected to the first three plans submitted by the city "on grounds of a potential unnecessary vote dilution of minority votes through their at-large feature, which in the context of Charleston's history of racial bloc voting," was detrimental to African Americans electing candidates of their choice.225 In 1974 the Justice Department objected to a mixed plan for the Charleston County Council with the merger of city and county government. According to the Justice Department objection, "there is a cognizable racial minority and a history of voting along racial lines." The Justice Department recommended that "methods of election such as those proposed here have an impermissible dilutive effect on black voting strength if, as is also apparent here, available alternative methods of election such as single-member districting would allow a fair opportunity for the election of representatives directly responsive to the needs of the minority population."226
III. Anticipated or foreseen effect of the change on minority citizens
During this time period members of the County Council and the Legislative Delegation were astute and savvy politicians. They understood the electoral procedures under which they ran and knew the probable electoral impact of a change from district to at-large elections. When changing the elective system, Charleston County might have adopted a single-member district or mixed plan, had it not considered the racial implications. Charleston County political leaders knew that a single-member district system raised a genuine threat of African Americans winning seats on the county governing body because the Charleston News and Courier reported on the growing strength of the African American vote. Furthermore, historians and political scientists had for some time adopted the view that at-large elections dilute minority votes. Charles A. Beard, for example, as early as 1912 in his classic American City Government, argued that at-large elections "substantially exclude minority representation."227 This view was common in standard textbooks of the 1960s, and scholars had communicated that at-large elections diluted minority representation to city and county officials through the National Civic Review.228 And even before House Bill 1262 was introduced in 1969, the Charleston News and Courier carried an article that specifically denoted that at-large elections are a discriminatory device. When Congressman William M. McCulluch, Republican from Ohio, introduced a bill in the U.S. Congress to extend the Voting Rights Act of 1965, he noted that for those who opposed African American voting, “A whole arsenal of racist weapons has been perfected.” The paper continued, "He listed among those weapons gerrymandering, consolidation of counties, at-large elections [my emphasis], full-slate voting, increased filing fees, and physical and economic intimidation.”229
The idea that an at-large system minimizes the electoral chances of minority candidates, as compared with a single-member district plan, was commonplace in the 1960s. The men on County Council and the Legislative Delegation had to have been familiar with the City of Charleston’s change in 1954 from districts to at-large elections following the elimination of the white primary and increasing African American voter
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registration. African Americans were then urging representation on city council. That year, the same year as the Brown decision, the City Council of Charleston changed from a single-member district to an at-large election system, and, according to African American leader Herbert Fielding, this change was in response to black candidates and the increasing African American black registration in certain city wards.230 Historian Walter J. Fraser, Jr. analyzed the move to at-large elections for the city council. "As in other urban areas of the state, the number of aldermen were reduced and Charleston's twenty-four City Councilmen were cut to twelve at-large aldermen. This was important for keeping the Broad Street power establishment in power in view of the continuing white flight to the suburbs, and the increasing political assertiveness of a black population approaching 50 percent in the city. At-large aldermen represented the various city wards, but did not necessarily have to reside in those wards. Henceforth the mayor could hand- pick his slate of candidates and if half lived below Broad Street and none came from the primarily black wards of the city, this was perfectly legal."231 According to historian Millicent Brown, the change for the city to at-large elections diminished "the likelihood that the four heavily black city wards (#9, #10, #11, and #12) could elect candidates to the city council unless they were endorsed by the white majority. The restructured system was implemented just as black voter awareness and participation had increased."232
According to Political Scientist Everett Carll Ladd, Jr., when he was in South Carolina in 1963 researching his book, Negro Political Leadership in the South, "At the time of my work the question of single member districts versus multiple member districts came up repeatedly. It was a very salient issue in terms of black political participation." Ladd elaborated, "These basic facts all came together in the research that I did in discussions with black and white leaders in both North and South Carolina. It was generally acknowledged that blacks had a far greater opportunity to secure equitable representation in either municipal council seats, on the one hand, or legislative seats, on the other, if one operated with a vehicle of single member districts….Indeed, there were concrete instances when the franchise was extended to blacks in the urban south in the 1940's and 1950's, of cities that elected their representatives – their councilmen, rather – on the basis of a ward or single element district system previously going to an at large system for the precise purpose of diluting black votes, preventing the election of black candidates."233
Along these same lines in Charleston County, when African American voting strength increased, the school board of trustees changed from elected to appointed positions in the predominantly African American school districts. Esau Jenkins, who ran for school trustee on Johns Island in 1956 soon after returning from Highlander Folk School in the mid-1950s, came in third of four candidates. Jenkins explained that "The reason why I ran is because I wanted the Negroes to know that it is their privilege to go into any office they're qualified to hold. They are taxpayers and they have just as much right to run for public office as the white persons. I ran because some Negroes thought that if a Negro name ever was placed on a voting machine, that person would be killed.” Jenkins actually finished ahead of one white man, and, apparently in reaction to Jenkins's unexpected showing, white policy makers decided to change the school board from
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elected to appointed so there would be no similar challenges. Referring to his able campaign, Jenkins summarized, "That scared some of the white folks here, and the man who is on the county council decided that they would change voting for trustees on the school board. They would have it be appointed because Johns Island strength was growing too much." Esau Jenkins's analysis was right on target; in 1956, the South Carolina General Assembly upon recommendation of the Charleston Legislative Delegation abolished elected school trustees and made the trustees appointed in St. John's District No. 9 and also in another predominantly African American school district No. 23, St. Paul's.234
The 1965 Voting Rights Act, and South Carolina's failed attempt to block the Act, put white Charlestonians on notice that the black vote will be counted. In response to the Voting Rights Act, a number of counties in South Carolina (such as Sumter, Edgefield, Colleton, Horry, Chester) opted for an at-large elected system to dilute the effect of the black vote (These were struck down in the 1980s through litigation because vote dilution violated the Voting Rights Act).235 Like these other South Carolina counties, the change in the method of election to the Charleston County Council was enacted when African Americans registration was increasing after the 1965 Voting Rights Act and when African Americans were gaining significant political strength and influence. In Charleston County the 1960 Voting Age population was 77,909 whites and 35,499 nonwhites. Pre-Voting Rights registration was 50,310 for whites (64.6 percent of eligible whites ) and 13,976 for nonwhites (39.4 percent of eligible nonwhite voters).236 In 1967 registration was 54,648 for whites (70.1 percent of eligible whites) and 17,991 for nonwhites (50.7 percent of eligible nonwhite voters).237 This was the year the County Council proposed to change the method of election to at-large from district.
The population figures for the City of Charleston itself, from which all eligible voters cast ballots on all three County Council seats, are instructive. In 1950, Charleston, with 70,174 citizens, was 56 percent (39,287) white.238 By 1960, with 65,925 residents, the city had become 51percent (33,612) non-white.239 By 1970, the City of Charleston had 66,945 denizens, 45.4 percent non-white (36,576 white and 30,369 non-white, of which 30,251 were African American)240 Thus, without the annexation of largely white areas, the city would have had an even higher concentration of African Americans in 1970 than it did in 1960. However, the new mayor in 1960, J. Palmer Gaillard, had promised change. According to historian Stephen O'Neill, "the change Gaillard promised was intended to preserve white electoral power in the city." Annexation preoccupied the first months of Mayor Gaillard's administration as he brought into the city white areas west of the Ashley River. "By the end of 1960, these first additions to Charleston in 111 years had added 12,521 people to the city, nearly everyone white." Working with the Mayor, Harold Petit, a founder of Charleston's Citizens' Councils, headed suburban residents who worked for Mayor Gaillard's annexation plan. The News and Courier went beyond the usual code words to warn that if whites from other areas were not annexed, “greater Charleston is headed for serious trouble….They know the College of Charleston could become dominated by votes of slum dwellers if suburban people don't join the city." Thus, according to O'Neill, "Gaillard's successful dilution of the black vote" impeded African American political advances.241
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Historian Walter J. Fraser, Jr. concurs in O'Neill's analysis. From 1959 to 1969, Gaillard tripled the size of the city from 5 to 18 square miles "through mergers and annexations that encompassed the burgeoning suburbs and growing shopping malls west of the Ashley River. Already populated by white ethnic groups who had left the city for the countryside years before, the area was adding people daily who were new to the region and employed in the expanding north area. Through such an annexation program Gaillard added thousands of white voters loyal to the city administration – thereby diminishing the effect of black voters in municipal elections – while he 'packed' the City Council with friendly black aldermen under the at-large system."242 In 1974, the U.S. Department of Justice found that City of Charleston's annexations were "racially motivated” because they “changed the majority population of the city from black to white." This Justice Department objection led to the city's 1975 change of method of election from at-large to single-member districts and the election of a number of African American candidates to the City Council.243
There is no doubt that policy makers were conscious of the importance of the African American vote and knew that its concentration in certain areas would be especially influential if district elections were used. In the same legislative session where Senator Bourne introduced Senate Bill 131, and where the House amended the bill so that all council persons run at-large in the county, the controversial Charleston school consolidation bill set off a filibuster, and the debate included a number of references to the increased strength and influence of the African American vote. Also during this same 1967 session, there arose a concern over where to place the black majority Williamsburg County with the realignment of senate districts with mandated one-person, one-vote reapportionment. According to Government Affairs Editor of the Columbia State, Philip G. Grose, this was “racially tinged." According to Grose, those supporting the move of Williamsburg, "reportedly feared a Williamsburg-Clarendon-Sumter combination would result in a Negro voting majority in the district."244 According to State reporter Paul Clancy, the legislators from different counties explained that they did not want Williamsburg as part of their Senatorial district because they "have no community of interests." But these were code words cloaking a racial purpose; "one of the reasons not given but strongly implied is fear of the county's predominantly Negro population at election time."245 Thus, the legislative session where the House Delegation amended Senator's Bourne bill so that County Council would be elected at-large was a session where legislators were concerned about aligning a black majority county so that the African American vote would be diluted.
Changes in voting patterns for local offices would also have been noticed. It could not have escaped John E. Bourne's attention that in the 1966 election in which he won the State Senate race as a Republican, that Miner Crosby, a Democrat, beat Republican Roberts for one of the district seats in North Charleston for the County Council. Crosby’s opponent won two of the three wards that voted in the district, but lost by enough votes in the one ward with a substantial African American population that he lost to Crosby.246 This would certainly help to explain Bourne's Senate Bill S131 to make the other two single-member district elections in the North Charleston area voted
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on by all the members of the North Charleston area. The North Charleston area was predominantly white and was becoming even more so. North Charleston had the one Council seat that was voted on by all residents, which Bourne had won in 1964, and now Bourne wanted to change the method of election so that it would be similar to the City of Charleston where all voters in the city of Charleston voted for all three council members, thereby diluting the heavily black wards. Savvy politicians could have foreseen that Micah Jenkins would lose his district race in his bid for re-election in 1968. He lost by 290 votes, and his district contained heavily black areas like Johns Island.247
With the high proportion of the peninsula city's population now African American, the likelihood looked promising that African Americans would capture at least one of the seats on the Charleston County Council under the multimember district plan. Moreover, as shown, the newspapers emphasized the African American growing political strength and influence. It is implausible to think that the decision makers in 1967-1969 did not know the implications of the increasing number of black voters, particularly how the increasing segregation patterns in the city and county concentrated African Americans into natural constituent voting districts.
Ironically, in the first election after the method of election was changed to at- large, the first African American, Lonnie Hamilton, III, was elected to the Charleston County Council. This was not an unusual occurrence in the South at this time. At the same time that recognition of the growing impact of the African American vote motivated elected bodies to go to at-large elections, the increased influence of African American voters meant that Southern governing bodies were becoming more willing to appoint or slate an African American for election. Since African Americans were voting primarily for Democrats, and since the Republican Party was growing in Charleston, the leaders of the Democratic Party found themselves in something of a dilemma after they recognized that 1965 Voting Rights Act was going to be enforced.
In his 1972 deposition, Dr. Everett Carll Ladd, Jr., when asked why some African Americans were elected from at-large systems, helped to clarify the particular situation of the Democratic Party in Charleston. Ladd explained that one reason "might be that a political party wished to secure black votes and made some concessions in order to secure them. Now if you have a situation of strong antipathy between blacks and whites where whites are likely to punish a party if it goes too far in courting black votes, well presumably in that context the political party is going to give just as little as it possibly can out of its self interest in order to get black votes, on the one hand, but not turn off, or turn away, white voters."248 And, in 1967, Democratic Governor Robert McNair announced his intention of appointing African Americans both to state-wide office and to local draft boards;249 thus, as shown earlier, the Charleston Legislative Delegation had recommended the appointment of an African American to the school board for District 20, and the only African American member of a draft board in South Carolina in 1967 was from Charleston.250 In a 1972 deposition, former chair of the Charleston Democratic Party (March 1968-October 1971) Dr. Gordon Stine was asked whether there were “still numbers of white voters who are reluctant to vote for black candidates in Charleston County," he responded, "I would have to say I think so, probably because of the nature of
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the individual." Attorney Armand Derfner had Dr. Stine read an article, "GOP 'Negative leadership' Is Rapped By Stine"' written by Barbara S. Williams after the 1970 general election. Derfner read, "While the white community as a whole felt it was time to have black representation, many, Stine said, felt there only should be one and Fielding was better-known." Stine acknowledged that basically this was "an accurate summary" of what he told Williams.251
Partisan politics influenced the vote, but did not change the racial polarization, and politicians had to balance between the races. The 1967 slating process of African American St. Julian F. Divine for black ward 9 in the City by Mayor Palmer Gaillard's machine is illustrative of the problems white Democrats faced with the increasing black voter registration. The Committee of 100 (see above) ran three of their own candidates in wards with the highest black registration in the primary, including one challenging St. Julian Divine. The paper reported that those "three wards that have the largest percentage of Negro voters" expected the heaviest voter turnout. The racial atmosphere was tense. The Committee of 100 sent merchants a circular encouraging them to vote for their candidates. In direct reference to the earlier protests of the Charleston Civil Rights Movement, especially the traumatic riot of 1963, they claimed Mayor Gaillard used police and force after riots started. "Would you prefer to negotiate with respected Negro leaders to stop the trouble before it starts? Thereby preventing destruction of your homes, the killing of your loved ones and the destruction and utter ruin of your business?" According to the News and Courier, this was interpreted by some merchants as "injecting racially oriented riots and their control into the primary." Despite some organized African American opposition to St. Julian Divine, Divine won in this at-large election because he was on the Gaillard slate.252
Thus in 1970, in the first at-large election to Charleston County Council, Democratic policy makers slated popular high school teacher Lonnie Hamilton, III, to represent North Charleston. The eight-year veteran of the Charleston County Council, Miner W. Crosby, the only member to vote against changing the method of election from district to at-large, lost in the primary to Hamilton. According to the News and Courier, Crosby "blamed Democratic party bosses for his defeat."253 Hamilton believes that he was able to win because Congressman Mendell Rivers, who was a noted segregationist Democratic Party leader, placed his hand on Hamilton's shoulder during a campaign rally at the auditorium and told people he was supporting Hamilton and they should vote for him.254 In a deposition in 1990, attorney Robert N. Rosen asked Hamilton, "Did you have the support of any of the political figures in the community? I mean, for example, did Gedney Howe go out of his way to support you in the primary or – " Hamilton answered, "They all – yeah, I got the support to [sic] the political figures at the time." Throughout his deposition Hamilton stressed the uniqueness of his situation in 1970 and in subsequent elections. In 1970, he explained, "I happened to have had all of the elements then of satisfying things that – those kinds of qualities that people were looking for at the time. It will probably never happen again in the history probably of the county."255 Hamilton also testified to the continuing importance of race in elections in Charleston. When asked if "racism played any role in any of your elections," Hamilton responded, "Racism was there, but the thing that helped me with the racism was the fact
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that I had – I had been working with these same racist people's children." He then gave an example, a "white man came up to me and told me that he didn't like me, and, you know, he called me the favorite word, but that he'd never lie to his daughter and he'd promised his daughter that he would vote for me." Hamilton believed that some white Charlestonians would not vote for a black candidate and some African Americans would not vote for a white. 256 Thus, Lonnie Hamilton confirmed political scientist Dr Everett Carll Ladd, Jr.'s theories as the situation in Charleston County.
IV. Views Expressed by Policymakers on Related Issues
This section of the report will examine some of the viewpoints of politicians involved in setting up the at-large elections: Micah Jenkins, John E. Bourne, Jr., Nathan Cabell, and George Grice, all members of the County Council or of the Charleston Legislative Delegation. As noted by Charleston NAACP leader J. Arthur Brown in 1964, "the local power structure can and does set the stage for whatever happens."257 I will also look at the school consolidation bill because the same Legislative Delegation enacted that bill also, and the views of the decision-makers, as expressed on this related issue, are relevant in showing that discriminatory purpose was a motivating factor.
Micah Jenkins In 1967, when the County Council's Legislative (sometimes called Government Study) Committee proposed the shift to at-large elections, that committee was chaired by Republican Micah Jenkins who had led the white citizens’ council movement in Charleston and South Carolina in the mid-1950s.258 In 1956, an article in the News and Courier discussed Jenkins’ involvement in white organizations opposed to integration, "He was chairman of the States Right League which later became the Citizens Council." According to another 1956 newspaper article, Jenkins was leader of "a third party movement in South Carolina by serving as state chairman of the Federation of Constitutional Government."259 Furthermore, Jenkins was described as a major player in white supremacist groups in Charleston, South Carolina, and in the South by historians; one historian notes that Jenkins was among the Citizenship Council "notables serving on either the executive board or the advisory board" of the Federation for Constitutional Government, which was a "'national' coordinating organization for white resistance groups."260 In addition, as the chair of the Religious Affairs Committee of the Charleston Grass Roots League, Jenkins prepared Bulletin No. 3 accusing the National Council of Churches of supporting "the Supreme Court's left-wing segregation ruling."261 One historian described the purpose of the Citizens’ Councils as the same as "other white supremacy groups….Its members wear business suits instead of bedsheets," a description echoed in the deposition of former Charleston State Senator Charles Gibson. When asked about the Citizens’ Council of Greater Charleston of 1967, Gibson replied, "I know generally citizens councils around the south were … I always considered they were members of Klan and has (sic) suits on instead of sheets."262
John E. Bourne, Jr. It was Senator John E. Bourne of North Charleston who introduced Senate Bill S131 that would have had all three members of the County Council from the North
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Charleston area run at-large within the North Charleston multimember district in 1967. In 1967 also, Senator John E. Bourne pushed for passage of a Republican bill that would have required all voters to reregister before the 1968 primary or general elections. According to press accounts, the Republicans were making a "stubborn fight to trim Negro strength in 1968 elections." As the newspaper reported, "Sen. John E. Bourne Jr. of Charleston was even more specific in spelling out GOP fears that adoption of the amendment would keep thousands of illiterate Negroes on the rolls to vote Democratic next year." In opposing a Democratic amendment to postpone implementation of reregistration until after the fall elections, Bourne protested, "If we pass this amendment it seems to me we will be slapping the federal registrars on the back and saying, 'We were glad to have you. You did a good job.'"263 Also, in 1967, as the designated "workhorse" of the 31-hour Republican filibuster against the School Consolidation bill introduced by Senator Charles Gibson, Senator Bourne made several statements that reveal his views on race at that time. According to Bourne, the Consolidation bill had "overriding political implications that have not come out and may not come out.” Bourne pointed out that District 20 was 82 percent African American, and he worried that "the Department of Health, Education and Welfare is seeking to force racial balance by breaking down school district lines.”264 Both the Columbia State and the Charleston News and Courier reported that Bourne "also raised the specter of forced racial integration by busing if the county’s eight districts are merged into one. District 20 is 82 per cent Negro, while the St. Andrews district is 84 per cent white, he stressed.” The paper quoted Bourne’s prediction that "'Orders from the great white fathers in Washington to wipe out 'these imbalances’ wuld [sic] follow consolidation.”265 About three weeks later Bourne repeated the warnings that consolidation would lead to busing and integration.266 In 1986, in the deposition of former state senator Charles Gibson, the attorney for Charleston County School District, Robert N. Rosen, asked, "And the people who were talking race, and I can use John Bourne as an example because he is in the newspaper, you know, I guess we have to assume some of the newspaper reports are vaguely correct, that he was talking about busing and using race as an issue." Gibson answered, "Right."267
In 1978, the newspaper quoted Bourne’s opponent in the North Charleston mayoral race, Miner W. Crosby. The headline read, "North Charleston mayoral candidate and others blasted John E. Bourne's administration as racist at a Democratic Breakfast Club Friday." The paper quoted Crosby as saying of Bourne, "He's very much a racist. For some reason or other, he doesn't like black people." President of the North Charleston NAACP, the Rev. Omega Newman, and NAACP political action chairman, Walter Jenkins, "cited various ways the city of North Charleston discriminates against minorities." Although more than 16,000 African Americans were North Charleston city residents, "Bourne has never appointed one black person to the North Charleston sewer district or one black in a top position in city government." Interestingly, a major issue in the 1978 North Charleston mayoral election was the African American demand for single-member district elections to City Council. Buck Miller, a white Democrat, said, "The election system in North Charleston makes it impossible for a black to be elected." Crosby, in 1969 the only member of the Charleston County Council who had voted against the move to at-large elections, proposed for the city a mixed plan with six single-
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member districts. Crosby wanted "equal representation" for the North Charleston City Council. According to the NAACP president, "Crosby and many of the challenging candidates promise to vote for single-member districts if they are elected."268 Bourne opposed this demand from the African American community in North Charleston for single-member districts.
Nathan Cabell and George Grice State Representative Nathan Cabell and then College of Charleston President George Grice were among white leaders who obtained a new charter for the College of Charleston in order to block its desegregation. Both Cabell and Grice helped establish private segregated schools in Charleston during the 1960s.269 In 1964, when five segregated private schools were established in the wake of the 1963 Charleston school desegregation order, Cabell withdrew his daughter from public school, and, according to one scholar, offered "advice to those who wanted to establish segregated academies." He arranged for the leaders of the segregation academy movement to meet with Governor Donald Russell "to secure state approval for the leasing of church property for private schools." In 1963, Senator Cabell was Chairman of the Board of Charleston Academy, Inc., an association with the purpose of organizing private “segregation” institutions.270 At a Legislative Delegation meeting in 1963, Cabell accused Charleston's Senator T. Allen Legare of attempting to appoint an African American to the school board. Legare responded, "I did not take my children out of the public schools in the City of Charleston and place them in another school district outside the city and leave my fellow citizens to face the problem alone, as Mr. Cabell did."271 In his 1986 deposition, former State Senator Charles Gibson remarked on Mr. Cabell’s quotation in an editorial of 9 January 1968 where Senator Cabell wanted to reestablish the districts before consolidation because consolidation would result in busing children between districts and the assigning of teachers. Cabell was quoted in the editorial as saying anyone who opposed him was "a racial extremist," whereupon, Gibson commented, "God knows he ought to recognize one."272
As president of the College of Charleston, George Grice resisted integration.273 Grice was the segregated academy's "educational advisor” when the College of Charleston offered refresher courses for whites teaching in private schools.274 Grice lent the resources and the prestige of the college to the private segregation school movement. He helped found “College of Charleston Prep" (8-12 grade) and let "that segregation academy use the College's facilities."275 As state senator in 1967 George Grice opposed the Gibson School Consolidation Bill and warned that the removal of district lines would be "regretted forever," and would permit the federal government to enforce "50 percent integration" in all the schools.276 He attempted to amend the bill so that District 20 (82 percent African American) was excluded from consolidation.277 In a series of articles, the paper reported on Senator's Grice's continued opposition to the consolidation bill and on his warnings against integration, specifically that the bill would "speed up" desegregation.278 The Columbia State reported, “Grice, former president of the College of Charleston, warned that public education will suffer if the school districts are consolidated. He said increased integration will result and more private schools will be established.”279 Grice argued that consolidation would “lead to bussing students from
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one school to another to accomplish 'racial balance' under Supreme Court and Washington edicts.”280
School Consolidation
The reaction of the above politicians to the Gibson School Consolidation Bill introduced in 1967 is an excellent gauge for racial attitudes by decision makers who were in the Legislative Delegation. As the newspaper coverage makes clear, and as the deposition of Gibson states explicitly, the issue behind many of the code words was race.281 Although Gibson's bill was intended to move money around, not people, he found it necessary to amend the bill to ensure against student and teacher transfers and to assure people that it would not lead to desegregating the schools in 1967. Dean of South Carolina Law School Robert Figg, who had been the counsel working for the state in the Briggs desegregation case, and Dr. G. Creighton Frampton, who as Charleston School Superintendent had worked with Figg on the state’s defense of segregated education (both Figg and Frampton were among the original members of Senator's Marion Gressette's Segregation Committee and both worked with the committee through its entire tenure until 1966), helped develop a compromise to end the Republican filibuster. They (and Senator Gressette) were brought in to help amend the bill so that it would be "more palatable."282
The Gibson School Bill was amended by the same House Delegation that amended Senate Bill S131 to change the method of electing county council to at-large. The motivation behind the amendments to the Gibson School Bill has been carefully researched by Dr. R. Scott Baker, who concludes, "The Act of consolidation was a fitting conclusion to a quarter century of shrewd white resistance, testimony to the ability of whites to limit the impact of NAACP litigation. By equalizing expenditures and maintaining constituent district boundaries, consolidation stymied the NAACP's attempt to achieve meaningful desegregation in Charleston." Baker showed that “Equalization was always a means to a larger end: the maintenance of racial separation in education. …. By blocking desegregation across district lines, consolidation embedded schools in racially segregated and economically unequal social environments."283
In March 1967 the News and Courier reported that the school board would be elected by the county at-large, but with residency requirements. A Board of trustees would head each constituent district. The legislators kept in place the appointed and elected methods that existed at the time, which meant that District 20, the City of Charleston, which had been appointed by the Governor upon recommendation of the Legislative Delegation since 1951, would continue as appointive. We have already discussed how District 9 (St. John's) and District 23 (St. Paul's) had their election of trustees abolished in 1956 after Esau Jenkins nearly won in a race for school board trustee. Following the activism of the Civil Rights Movement in Charleston, the legislature in 1964 also abolished elected school board trustees for the only other predominantly African American District (St. James-Santee). All other school district trustees were elected.
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Racial motivation is all too obvious when the trustees were to be an elected board, except in four districts, 20, 23, 9, and 1. Thus, in the Gibson School Consolidation Bill, Act 340, this racial distinction was incorporated, denying African Americans the vote where they might have the majority and determining vote for school trustees. In these four predominantly African American districts, they would be appointed. It was not until 1974 that these predominantly African American school districts were allowed to elect their trustees.284
The very same Legislative Delegation that enacted the Consolidation School Bill, Act 340, that set up elected trustees for white school districts but appointive trustees for black school districts (and an at-large system for the County Consolidated district) is the Delegation that amended Senator Bourne's Bill S131 to make the Charleston County Council elected at-large county-wide. Because the Consolidated School Act created “constituent districts” and maintained a different method of selecting trustees to those constituent districts—that is predominantly white school constituent districts elected trustees while the predominantly African American constituent districts had their trustees appointed, there is a clear racially discriminatory purpose. It is reasonable to infer, therefore, that the at-large election system for County Council by the same legislators was established, similarly, for a racially discriminatory purpose, that is, to prevent Charleston County African Americans from electing candidates of their choice to County Council. Thus, the at-large election system was a means to ensure white control of election to County Council.
Aftermath of Act 94:
In my study of the issue, there is no one clear answer as to the motivation for preserving the at-large system; for a variety of reasons the at-large system has not been changed. In the thirty years since the change from districts to at-large elections, there have been a number of times that African Americans have wanted to change to a single- member district system of election. African American legislators proposed bills to change the method of election from at-large to single-member districts, but were unsuccessful in these endeavors. I would confirm that, among a number of different factors in that history, it is clear that the desire of some people to dilute the black vote has continued to play a part in the continuation of at-large elections.285
The County Council went to great length and expense to deny Charleston County a referendum on the method of election during the implementation of the South Carolina Home Rule Act No 283. Early in 1976 during the home rule debates, Barbara S. Williams wrote, "The recent city election is an example of the fact that single-member districts do give minority groups a better chance for election."286 Charleston County Council Chair, James A. Stuckey, was adamant against single-member districts and strongly opposed having a referendum on the changes being made under Home Rule. "We would lose our method of election" if a referendum were held, Stuckey claimed. The paper reported that Stuckey believed, "if the voters select the at-large method of election, the Justice Department will disapprove it and order the single-member district method."287 Although citizens approached the County Council and asked for an election,
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Council voted to stay at-large. As provided under Act 283, Charleston citizens presented a petition with 14,115 signatures; according to Representative Wheeler M. Tillman the petition was originally spearheaded by "black members on the delegation."288 However, when the Board of Voter Registration examined the signatures, they rejected over two- fifths, thus finding the petition short of the 10 percent needed for a referendum.289 The petitioners quickly gathered additional signatures, but the Election Committee would not accept them because the deadline had passed. Native Charlestonian, Republican Governor James Edwards, intervened and also supported a referendum on the method of election.
In late 1976, the newspaper reported there were three lawsuits on home rule from Charleston County.290 The Election Commission successfully sued to extend the deadline for the referendum on the method of election. However, County Council appealed that decision, and the State Supreme Court sided with the County Council’s rejection of the referendum. House Representative Wheeler Tillman then initiated a second petition for a referendum and got more than 17,000 signatures. County Council sued Tillman and again the Court sided with County Council that the second petition for a referendum was invalid as it was after the deadline.291 In June 1977 the Justice Department rejected Charleston's implementation of home rule, declaring that "the council's present method of election is invalid." The newspaper cited a Justice Department official who said "the decision was based on the department's belief that the present election method dilutes black voting strength and therefore violates the Voting Rights Act of 1965."292 The County again appealed its case to the Justice Department, but Justice objected again. The paper quoted a letter by Assistant Attorney General Drew S. Days, "There is substantial support for single-member district elections in the county but this sentiment … has not even been brought to a vote." Moreover, he contended that in Charleston County, "we are presented with a serious problem of potential dilution of minority voting strength through continuation of the old election system in a context where change and improvement seemed to be promised to the electorate." The paper noted that "County Council, insistent that the at-large method of election now used is better, has resisted the referendum attempts."293
Despite the Justice Department's objection, the Charleston County Council proceeded to hold elections under the at-large system. Thus, in 1978, both the Justice Department and African American plaintiffs filed a case against the County Council for not having sought preclearance for their Home Rule change. County Council claimed that, although some of the County Council's powers had been changed, they did not change the method of election from that established under Act No. 94 in 1969 and therefore they could still use at-large elections. The Court agreed with the County Council.294 One argument that County Council had used against holding a referendum on Home Rule was that it would be too costly, yet they willingly went to the huge expense involved in defending the at-large method of election.
Finally in 1989, the county did have a referendum on the method of election. The referendum to change to district elections did not pass, but African Americans strongly supported the change to single-member district in this close vote. Lonnie Hamilton
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concurred that he had supported the referendum for single-member districts and that the African American community wanted district elections.295
Conclusion:
Section I of this report examined the general background of discrimination in South Carolina and in Charleston. The report then turned to specific events in Charleston to ascertain the climate of race relations prior to Act 94. This was the local context for the change in Method of Election. A look at this chronology has demonstrated that the decision makers during this time were very concerned about increased African American voting strength and were fearful that African Americans would vote as a “bloc.” Section II of the report presented the sequence of events in the Charleston County Council and the South Carolina General Assembly leading to the change from districts to at-large elections for the Charleston County Council. This section also questioned the rationale for this change. My research has persuaded me that the goal of hindering African American office holding played a substantial role (along with other, non-racial factors) in the introduction of the issue in 1967 and in the passage of Act No. 94 in spring 1969. The clear explanation for the change is that it was intended to dilute the growing strength of the African American vote. At-large elections occasioned by this statute were accompanied by a significant pattern of racial bloc voting in Charleston County. This combination is, to a significant degree, racially discriminatory.
Section III examined the anticipated and foreseen effects on minority citizens of the change from districts to an at-large method of election. This section included an analysis of the racially motivated annexations to the City of Charleston. Section IV looked at the views expressed by policy makers on related issues, especially school consolidation. Racial motivation is all too obvious in the school consolidation issue because racial distinction was incorporated. The constituent district trustees were to be an elected board if the school district was white and an appointed board if the school district was predominantly African American.
In conclusion, in Charleston County, South Carolina, as in other Southern communities I have investigated, at-large elections have served as a device to dilute the African American vote, to deny them the opportunity to elect candidates of their choice, and thus minimize the impact of the 1965 Voting Rights Act.
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Notes: 1 Village of Arlington Heights v. Metropolitan Housing Corp., 429 U.S. (1977) 252, 265-68, 97 Supreme Court Reporter, pp. 555-68. 2 South Carolina v. Katzenbach, 383 U.S. 301 (1966). South Carolina filed the original complaint. At the Court's invitation, Alabama, Georgia, Louisiana, Mississippi, and Virginia filed briefs as amicus curiae supporting South Carolina's claim that certain provisions of the Voting Rights Act were unconstitutional. Numerous other states filed briefs supporting the constitutionality of the act. 383 U.S. 301, 308-309, 310n, 329-330 (1966). 3 I. A. Newby, Black Carolinians: A History of Blacks in South Carolina, 1865- 1968 (Columbia: University of South Carolina Press, 1973), 15. 4 Kirby concluded that while the upper South practiced some moderation and restraint in race relations, in South Carolina, and especially in low country counties like Charleston, the tone was much more racist. Jack Temple Kirby, Rural Worlds Lost: The American South, 1920-1960 (Baton Rouge: Louisiana State University Press, 1987), p. 247. 5 Francis Butler Simkins, "Race Legislation in South Carolina since 1865,” South Atlantic Quarterly, XX (June 1921), pp.177, 168. 6 See James M. Banner, Jr., "The Problem of South Carolina," in Stanley Elkins and Eric McKitrick, eds., The Hofstadter Aegis: A Memorial (New York: Alfred A. Knopf, 1974), pp. 76-80. 7 Orville Vernon Burton, "'The Black Squint of the Law': Racism in South Carolina" in David R. Chesnutt and Clyde N. Wilson eds., The Meaning of South Carolina History: Essays in Honor of George C. Rogers, Jr. (Columbia: University of South Carolina Press, 1991), p. 166; Laughlin McDonald, "An Aristocracy of Voters: The Disfranchisement of Voters in South Carolina." South Carolina Law Review 37 (1986): 558. 8 Joel Williamson, After Slavery: The Negro in South Carolina During Reconstruction, 1861-1877 (Chapel Hill: University of North Carolina Press, 1965), 72- 79; Eric Foner, Reconstruction: America's Unfinished Revolution, 1863-1877 (New York: Harper and Row, 1988), 200; Burton, “Black Squint,” pp. 166-167; Orville Vernon Burton, et al., "South Carolina," p. 192 in The Quiet Revolution: The Impact of the Voting Rights Act in the South, 1965-1990, edited by Chandler Davidson and Bernard Grofman (Princeton: Princeton University Press, 1994). 9 McDonald, "An Aristocracy of Voters,” p. 560. 10 Bernard E. Powers, Jr., Black Charlestonians: A Social History 1822-1885 (Fayetteville: University of Arkansas Press, 1994 ); and “Community Evolution and Race Relations in Reconstruction Charleston, South Carolina” South Carolina Historical Magazine, 95:1 (January 1994), 27-34; William Hine, "Frustration, Factionalism, and Failure: Black Political Leadership and the Republican Party in Reconstruction Charleston, 1865-1877" (Ph.D. dissertation, Kent State University, 1979); Foner, Reconstruction, pp. 352-354, 357, 538; Thomas Holt, Black Over White: Negro Political Leadership in South Carolina During Reconstruction. (Urbana: University of Illinois Press, 1977), esp. 97; Williamson, After Slavery, esp. 363-417; Burton, "Whence Cometh
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Rural Black Reconstruction Leadership: Edgefield County, South Carolina," The Proceedings of the South Carolina Historical Association, 1988-1989 (Aiken: The South Carolina Historical Association, 1989), pp 27-38. 11 James L. Underwood, The Constitution of South Carolina, II: The Journey Toward Local Self-Government (Columbia: University of South Carolina Press, 1989), pp. 47-50; McDonald, "An Aristocracy of Voters,” p. 560. 12 Walter B. Edgar, ed., Biographical Directory of the South Carolina House of Representatives, Volume 1: 1692-1973. Columbia: University of South Carolina Press, 1974), 141, 407, 409, 420-422; Emily Bellinger Reynolds and Joan Reynolds Faunt, eds., Biographical Directory of the Senate of the State of South Carolina, 1776-1964 (Columbia: South Carolina Archives Department, 1964), 62. 13 Foner, Reconstruction, pp. 352-354, 357, 538; Holt, Black Over White, esp. 97; Williamson After Slavery, esp. 363-417; Orville Vernon Burton, "Race and Reconstruction: Edgefield County, South Carolina." Journal of Social History 12, 1978, pp. 27-38; George C. Rable, But There Was No Peace: The Role of Violence in the Politics of Reconstruction (Athens: University of Georgia Press, 1984), pp. 165-172. 14 William J. Cooper, Jr. The Conservative Regime: South Carolina, 1877-1890 (Baltimore: The Johns Hopkins University Press, 1968), p. 89. Burton, et.al., “South Carolina,” pp. 192-94; See also Orville Vernon Burton, In My Father's House Are Many Mansions: Family and Community in Edgefield, South Carolina (Chapel Hill: University of North Carolina Press, 1985), pp. 228, 290. 15 Foner, Reconstruction, pp. 573-74. 16 Burton, "Race and Reconstruction," pp. 42-44; Foner, Reconstruction, pp. 570-575; Richard M. Gergel, "Wade Hampton and the Rise of One Party Racial Orthodoxy in South Carolina," The Proceedings of the South Carolina Historical Association, 1977, 7-8; Robert J. Kaczorowski, The Politics of Judicial Interpretation: The Federal Courts, Department of Justice and Civil Rights, 1866-1876 (New York: Oceana, 1985), pp. 57-61; Kermit L. Hall, “Political Power and Constitutional Legitimacy: The South Carolina Ku Klux Klan Trials, 1871-1872,” Emory Law Journal 33: 1984, 936-941; Simkins and Woody, South Carolina During Reconstruction; Williamson, After Slavery; Burton, "Ungrateful Servants? Edgefield's Black Reconstruction: Part I of the Total History of Edgefield County, South Carolina." (Ph.D. dissertation, Princeton University, 1976). 17 George B. Tindall, South Carolina Negroes, 1877-1900 (Columbia: University of South Carolina Press, 1952), pp. 309-10. 18 Tindall, South Carolina Negroes, pp. 54, 69; J. Morgan Kousser, The Shaping of Southern Politics: Suffrage Restriction and the Establishment of the One-Party South, 1880-1910 (New Haven: Yale University Press, 1974), pp. 32, 49-50, 85-87, 89, 91-92. 19 Tindall, South Carolina Negroes, pp. 31, 39. 20 Current law allowed congressional regulation of elections to national office, and Democratic reliance on violence, intimidation, and fraud to carry state and local elections would not bear federal scrutiny. 21 Tindall, South Carolina Negroes, p. 54; Kousser, Shaping of Southern Politics, p. 32 and "The Voting Rights Act and the Two Reconstructions," in Bernard Grofman and Chandler Davidson, eds., Controversies in Minority Voting: The Voting Rights Act
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in Perspective (Washington, D.C.: The Brookings Institute, 1992), pp. 598-602; McDonald "Aristocracy of Voters,” p. 568. Kousser shows that the proportion of the five other districts was also black majority and probably the sixth as well. Dilutive and disfranchising methods allowed Democrats to control the outcome of the other districts. 22 Journal of the Constitutional Convention of the State of South Carolina ... 1895 (Columbia, 1895), p. 469. While in the U.S. Senate Tillman declared, "We have done our level best. We have scratched our heads to find out how we could eliminate every last one of them. We stuffed ballot boxes. We shot them. We are not ashamed of it." Richard Maxwell Brown, Strain of Violence: Historical Studies of American Violence and Vigilantism (New York: Oxford University Press, 1975), pp. 85-86, 89; Francis Butler Simkins, Pitchfork Ben Tillman: South Carolina (Baton Rouge: Louisiana State University Press, 1944), 407, 531-534; and Simkins, "Ben Tillman's View of the Negro," Journal of Southern History 3 (May 1937), p. 161, 167-168; Stephen Kantrowitz, Ben Tillman and the Reconstruction of White Supremacy (Chapel Hill: University of North Carolina Press, 2000); James G. Banks , "Strom Thurmond and the Revolt Against Modernity" (Ph.D. dissertation, Kent State University, 1970), pp. 26, 29-30, 60-73. C. Vann Woodward, Origins of the New South, 1877-1913 (Baton Rouge: Louisiana State University Press, 1951), p. 333. One of Tillman's native Edgefield County political lieutenants was J. Strom Thurmond's father. 23 J. C. Sheppard to the General Assembly in Journal of the S. C. House (1886), p. 50. Underwood, The Constitution of South Carolina, pp. 67-69, 73, 80-81, 265. 24 Powers, Black Charlestonians and “Community Evolution and Race Relations in Reconstruction Charleston, South Carolina” South Carolina Historical Magazine, 95:1 (January 1994), 27-34; Hine, "Frustration, Factionalism, and Failure"; Williamson, After Slavery; Burton, "Ungrateful Servants?” See also My Father's House, “Race and Reconstruction,” 31-56, and "The Rise and Fall of Afro-American Town Life: Town and Country in Reconstruction Edgefield County, South Carolina," in Toward a New South? Studies in Post-Civil War Southern Communities, edited by Orville Vernon Burton and Robert C. McMath, Jr., pp. 152-92 (Westport, Conn: Greenwood Press, 1982). 25 First Request for Judicial Notice: Document List Regarding Historic Racial Discrimination in South Carolina in U.S. v. Charleston County (C.A. 2-01 01155 11), Moultrie v. Charleston County Council. (C.A. 9-01 562 11) (hereinafter referred to as First Request for Judicial Notice), II. Court Decision, 109: Vander Linden v. Hodges 193 F. 3d 268 (4th Cir. 1999), p. 73; Underwood, The Constitution of South Carolina, pp. 67, 265. 26 Underwood, The Constitution of South Carolina, pp. 67, 265. 27 John Gary Evans shepherded Tillman's legislation through the General Assembly in 1893 (Acts 1893, 481ff ). Evans, state senator from Aiken County, colleague of Tillman's since the Farmers' Movement days of the 1880s, and Tillman's successor in the Governorship in 1894, was the nephew of Confederate General Martin Gary and lived at Gary's home, Oakley Park, from which Gary had directed the Red Shirt paramilitary movement. The home was made a "Shrine" and was noted in the local Edgefield paper as "the only shrine to the Red Shirt movement in the world.” The Citizen News, Thursday, 30 November 1995, p. 3, "Tour of Homes set this Sunday."
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28 Tindall, South Carolina Negroes, pp. 309-10. This helps explain why there are so many exceptions and variances in the Act; counties like Charleston and Beaufort where there were large African American populations were exempt from parts of the law. That variance was allowed at all in the County Government Act is suspect in itself. Underwood, The Constitution of South Carolina, see pp. 68-104, esp. p. 92-95; Columbus Andrews, Administrative County Government in South Carolina, (Chapel Hill: University of North Carolina Press, 1933), pp. 34-40, esp. p. 37. See The Charleston News and Courier, "Vengeance on Charleston," Dec. 9, 1893; "Tillmanites Grow Tired," Feb. 13, 1894; "Home Folk in Washington," March 9, 1894; "The Negro in Politics," March 25, 1894; "Under Negro Rule Again," Jan. 11, 1895; "The Republican Challenge," Jan 8, 1895; "Who separated `The Decent White People,' Governor?," Jan 6, 1895; "A Dangerous Experiment," Dec. 18, 1893; "A Delusion and a Snare," April 19, 1894. 29 The history of the 1895 Disfranchising Convention is well known. See especially Burton, "Black Squint," pp. 161-185. 30 Tindall, South Carolina Negroes, p. 82; Kousser, Shaping of Southern Politics, pp. 150-151; McDonald, "Aristocracy of Voters,” p. 571; Burton, “Black Squint,” pp. 1991, 161, 170. 31 Quote from Burton, "Black Squint," p. 171. 32 Simkins, Pitchfork Ben Tillman, pp. 289-291; Kousser, Shaping of Southern Politics, p 147; Burton, “Black Squint,” pp. 169-170; Tillman, "Message of Benjamin R. Tillman to the General Assembly ...1892," (Columbia, 1892), p. 24. 33 In 1876 three counties, Anderson, Pickens, and Oconee, adopted a primary system. In 1878 Martin Gary proposed that African Americans be excluded from the political process by barring them from the Democratic party primary. Charleston News and Courier, 4 June 1878. Eight more counties followed in 1878, nine in 1880, and four in 1882. In 1886 the Democratic party held the first primary for Congress. 34 Tindall, South Carolina Negroes, 1952, 89; Frederic Ogden, The Poll Tax in the South (University, Alabama: University of Alabama Press, 1958), pp. 42, 123, 188. 35 Smith v. Allwright, 321 U.S. 649 (1944). 36 V. O. Key, Jr., Southern Politics in State and Nation (New York: Alfred A. Knopf, 1949), p. 627. 37 Rules Adopted by State Convention, May 15, 1946 (Columbia: Democratic Party of South Carolina), p. 2. 38 Tinsley E.Yarbrough, A Passion for Justice: J. Waties Waring and Civil Rights (NY: Oxford University Press, 1987, pp. 65-66; Elmore v. Rice, 72 F.Supp. 516, 527 (E.D.S.C. 1947), aff'd sub nom Rice v. Elmore, 165 F.2d 387 (4th Cir. 1947), cert. denied, 333 U.S. 875 (1948). 39 Brown v. Baskin, 78 F.Supp. 933 (E.D.S.C. 1948), 80 F.Supp. 1017 (E.D.S.C. 1948), aff'd, 174 F.2d 391 (4th Cir. 1949). Key, Southern Politics, pp. 628-632. Fraser, Charleston! pp. 398-99. 40 S.C. Acts (1950), No. 858. In addition to restoring previously eliminated provisions of the state's election code, the statute includes numerous revisions. Debate over the bill was infused with racial comments. "The white primary is gone," lamented a legislator from Chesterfield County, and "we have a problem of biracial voting in our state." Charleston News and Courier, 9 February 1950, 11A; see also 24 February, 1B; 15
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March, 1A; 14 April 1950, 1A. The newspaper also commented that the regulation of primary elections had been removed in 1944 "to avoid having the white primary outlawed in the courts." Charleston News and Courier, 14 April 1950, 1A. Under the full-slate requirement, Section 7(13), "if a voter marks more or less names than there are persons to be elected or nominated to an office...his ballot shall not be counted for such office." Section 10 provided that "no candidate shall be declared nominated in a first primary election unless he received a majority of the votes cast for the office for which he was a candidate," and Section 11 required a runoff primary in the event that candidates failed to secure the requisite majority. Both the full-slate and runoff requirements date from the days of the white primary; see South Carolina Code (1942), Sec. 2365-2367. The first adoption of both devices seems to have been in S.C. Acts (1915), No. 118, Sec. 1. 41 Charleston News and Courier, 12 February 1950, 4B. 42 Burton, "Black Squint," pp. 170-171. 43 Gunnar Myrdal, An American Dilemma: The Negro Problem and Modern Democracy (New York: Harper and Brothers, 1944), p. 488n. Historian I. A. Newby puts registration at 3,000 (0.8 percent of voting age African Americans in South Carolina). Newby, Black Carolinians, p. 291. 44 Journal of the House of Representatives of the Second Session of the 85th General Assembly of the State of South Carolina being the Regular Session, Beginning Tuesday, January 11, 1944, resolution dated February 29, 1944, pp. 569-570. 45 Burton, "Black Squint," pp. 175-177, see table 9.2; Orville Vernon Burton, “Foreword” to Benjamin E. Mays, Born to Rebel (Athens: University of Georgia Press, Brown Thrasher Edition, 1987), p. xxiii, Table 2. School expenditures are calculated from the Annual Reports of the South Carolina Department of Education. 46 Duvall v. School Board, C.A. No. 1082 (E.D.S.C.); R. Scott Baker, "Ambiguous Legacies: The NAACP's Legal Campaign Against Segregation in Charleston , South Carolina, 1935-1975," (Ph.D. dissertation, Columbia University, 1993), pp. 69, 80-93; Millicent Ellison Brown, "Civil Rights Activism in Charleston, South Carolina, 1940-1970," (Ph.D. dissertation, Florida State University, 1997), p. 38. 47 The Byrnes statement on “gerrymandering of districts” from the 1950 radio address is in a file pertaining to the 1950 gubernatorial campaign, in the Papers of James F. Byrnes, Cooper Memorial Library, Clemson University. Interview with Dr. Marcia Synott, March 3, 2001; Deposition of Dr. Marcia Synott, U.S. Plaintiffs, Richard Ganaway, et al., Plaintiffs-Intervenors v. Charleston County School District and State of South Carolina; Plaintiffs’ Proposed Post-Trial Findings of Fact,” in U.S. Plaintiffs, Richard Ganaway, et al., Plaintiffs-Intervenors v. Charleston County School District and State of South Carolina, C.A. No. 81-50-8; pp. 24-36; Baker, "Ambiguous Legacies," p. 176, 265-66; 48 Burton, "Black Squint," p. 177; Newby, Black Carolinians, pp. 274-313; John G. Sproat, "Firm Flexibility: Perspectives on Desegregation in South Carolina," in Robert H. Abzug and Stephen E. Maizlish, eds., New Perspectives on Race and Slavery in America: Essays in Honor of Kenneth M. Stampp (Lexington: University of Kentucky Press, 1986), pp. 164, 166-169. 49 "Negro Leaders Jubilant Over Court Decision," Charleston Evening Post, 17 May 1954, 2A; "S.C. Now in Position to End Public Schools," (7A) and "Byrnes is
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'Shocked' at Court's Decision," (1 and 6A) 18 May 1954, 7A, both Charleston News and Courier. 50 1952 Code of Laws of South Carolina, Section 21-2 (1960 Supplement); Plaintiffs’ Proposed Post-Trial Findings of Fact, United States of America, Plaintiff, Richard Ganaway, et al., Plaintiff-Intervenors, v. Charleston County School District and State of South Carolina, C.A. No. 81-50-8, p. 195. 51 Walter Edgar, South Carolina: A History (Columbia: University of South Carolina Press, 1998), p. 523; Stephen O'Neill, "From the Shadow of Slavery: The Civil Rights Years in Charleston," (Ph.D. dissertation, University of Virginia, 1994), pp. 154- 58. 52 Sproat, "Firm Flexibility." 53 Brown, "Civil Rights Activism," p. 272. 54 Fowler, Presidential Voting, pp. 43-47; Donald R. Matthews and James W. Prothro, "Social and Economic Factors and Negro Voter Registration in the South," American Political Science Review, 57 (1963): 4-44; Michael Ray Cline, "The South Carolina Negro Vote in the Presidential Elections of 1952 through 1964” (M.A. thesis Political Science, University of South Carolina, 1966). 55 Camden Chronicle, 19 February 1965, p. 1. 56 This was a higher proportion than other states of the deep South. U.S. Commission on Civil Rights 1968, 222-23; Columbia Record, 16 March 1965, 1B. The U. S. Commission on Civil Rights. Other sources suggest that there were a few African American elected officials in black majority districts. Burton, et al., "South Carolina," pp. 197-8, 200-201. 57 O'Shields v. McNair, 254 F. Supp. 708 (D.S.C. 1966). 58 See Burton, et al. "South Carolina," pp. 202-205; Underwood, The Constitution of South Carolina, pp.116-75; Walter A. Edgar, South Carolina in the Modern Age (Columbia: University of South Carolina Press, 1992), pp. 117-119; Michael A. Maggiotto, "Reapportionment and Voting Rights," in Graham and Tyler, eds., Local Government in South Carolina, Vol. II, pp. 87-106; Bryant Simon, “The Devaluation of the Vote: Legislative Apportionment and Inequality in South Carolina, 1890-1962, The South Carolina Historical Magazine, 97 No. 3 (July 1996), pp. 227-245. 59 383 U.S. 301, 308-309, 310n, 329-330 (1966). 60 Columbia State, 14 December 1965, 14B; 26 December 1965, 3D. 61 U.S. Commission on Civil Rights 1968, 61-64, 72-73, 86-87, 95-96, 117-118, 167-168. 62 Columbia State, 26 December 1965, 3D and 18 October 1987, 9B; Columbia Record, 16 March 1965, 1B. Burton, et al., "South Carolina," pp. 200-01. Whites as well as blacks registered at a higher rate after the passage of the Voting Rights Act. 63 Quoted in Jack Bass and Jack Nelson, The Orangeburg Massacre (1970; 2nd ed. Macon: Mercer University Press, 1984), p. 197. 64 Fraser, Charleston! pp. 279-80, 363; Arthur I. Waskow, From Race Riot to Sit- In: 1919 and the 1960s (Garden City, NY: Doubleday and Co., 1966), pp. 12-16, 180, 210; O'Neill "From the Shadow of Slavery," p. 43. 65 Edgar, South Carolina, p. 540.
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66 Anthony Harrigan, ed. The Editor and the Republic: Papers and Addresses of William Watts Ball (Chapel Hill: University of North Carolina Press, 1954), pp. 18-19; Howard H. Quint, Profile in Black and White: A Frank Portrait of South Carolina (Washington, D.C.: Public Affairs Press, 1958), p. v. 67 "Before You South Carolinians," Charleston News and Courier, 9 December 1950. Judge Waring’s quote is from 1954 and cited in Stephen O'Neill, “To Endure, but Not Accept: The News and Courier and School Desegregation,” The Proceedings of the South Carolina Historical Association, 1990, p. 87. 68 See O’Neill, “To Endure, but Not Accept,” pp. 87-89. 69 "Paper Curtain," Time Magazine, 22 May 1962, in Integration File, Vertical Files, South Carolina Room, Charleston Public Library. 70 O'Neill, “To Endure, but Not Accept,” pp. 87-94; William D. Smyth, "Segregation in Charleston in the 1950s: A Decade of Transition," South Carolina Historical Magazine, p. 99. 71 "Mr. Esau Jenkins: 'Here's A Man Being Shot For A Dog,'" and "We didn't have a chance when we go into court." in Carawan, Ain't You Got a right to the Tree of Life?, pp. 145-46, 154. 72 In 1950 and 1960, 99 percent of Charleston County’s non-white population was black. U. S. Department of Commerce. Bureau of the Census, Census of Population: 1950, Volume 2, Characteristics of the Population, Part 40, South Carolina (Washington, D.C., 1952), pp. 46-51, 74, 140, 192; U.S. Census of Housing 1950, Part 40, p. 26; O'Neill, "From the Shadow of Slavery," pp. 84-85; 73 U. S. Department of Commerce. Bureau of the Census, Census of Housing: 1950, Volume 1, General Characteristics, Part 40, South Carolina (Washington, D.C., 1953), pp. 45, 48, 54. 74 Eighty-Third Annual Report of the State Superintendent of Education of the State of South Carolina 1951 (Columbia, 1951), pp. 240-245, 248-249, 270-277. 75 U. S, Department of Commerce. Bureau of the Census, Census of Population: 1960, Volume 1, Characteristics of the Population, Part 42, South Carolina (Washington, D.C., 1961), pp. 150, 162, 1666, 170. 76 Ninety-Third Annual Report of the State Superintendent of Education, State of South Carolina 1960-1961 (Columbia, 1961), pp. 116-119, 124-131, 148, 170; Stephen Lowe, "Brown on Trial: School Desegregation in Charleston, South Carolina, 1960- 1964," The Avery Review III:1 (Spring 2000), p. 34. 77 Ninety-Fourth Annual Report of the State Superintendent of Education, State of South Carolina 1961-1962 (Columbia, 1962), pp. 116-119, 124-131, 142, 162. 78 U. S. Department of Commerce. Bureau of the Census, 1970 Census of Population, Volume 1, Characteristics of the Population, Part 42, South Carolina (Washington, D.C., 1973), p. 293; Leon Fink and Brian Greenberg, Upheaval in the Quiet Zone: A History of Hospital Workers' Union, Local 1199 (Urbana: University of Illinois Press, 1989), p. 130. 79 U. S. Department of Commerce. Bureau of the Census, 1980 Census of Population, Volume 1, Characteristics of the Population, Part 42, South Carolina (Washington, D.C, 1983), pp. 384, 410, 423; Pockets of Poverty in Charleston County,
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South Carolina; Berkley-Charleston-Dorchester Council of Governments, Report on Economically Less Developed Areas in the Berkeley-Charleston-Dorchester Region. 80 U. S. Department of Commerce. Bureau of the Census, 1990 Census of Population and Housing, Population and Housing Characteristics for Census Tracts and Block Numbering Areas, Charleston, SC MSA (Washington, D.C., 1993), pp. 245, 261, 277, 294, 375, 407. 81 All school expenditures and ratios were calculated from the Annual Reports of the State Superintendent of Education. For 1959-60, from the Ninety-Second Annual Report of the State Superintendent of Education, State of South Carolina, 1959-1960 (Columbia, 1960), pp. 156, 160, 274-77. Per student spending for 1961-62 from Cox, "1963—The Year of Decision," p. 168; 82 Bruce Smith, Associated Press writer, "Racial Divide Smaller, but Persistent," Greenwood Index-Journal, 19 August 2001, 1, 5 A; "Race an Issue throughout State's History," Greenville News, 19 August 2001, 1, 4 G. 83 Donald L. Fowler, "Negro Voting—1966, S.C. Democratic Primary," The University of South Carolina Governmental Review (Bureau of Governmental Research and Service) No. 3, August, 1966, quotations from pp. 3, 4. 84 William Julius Wilson, When Work Disappears: The World of the New Urban Poor (New York: Alfred A. Knopf, 1996) and Wilson, The Truly Disadvantaged: The Inner City, the Underclass, and Public Policy (Chicago: University of Chicago Press, 1987); Joe R. Feagin, Racist America: Roots, Current Realities, Future Reparations (New York: Routledge, 2000); Cheryl Harris, “Whiteness as Property,” Harvard Law Review, 106:8(June 1993), pp.1707-1791; Douglas S. Massey and Nancy A. Denton, American Apartheid (Cambridge: Harvard University Press, 1993); Charles Abrams, Forbidden Neighbors: A Study of Prejudice in Housing (NY: Harper, 1955). 85 Duvall v. School Board, C.A. No. 1082 (E.D.S.C.); O'Neill, "From the Shadow of Slavery," p. 100; Brown, "Civil Rights Activism," p. 41; Baker, "Ambiguous Legacies,” pp. 80-81. 86 Brown, "Civil Rights Activism," pp. 47-49; O'Neill, "From the Shadow of Slavery," p. 100. 87 Brown, “Civil Rights Activism,” p. 49. 88 Elmore v Rice, 72 Supp. At 528; Brown v. Baskin, 78 F.Supp. 933 (E.D.S.C. 1948), 80 F.Supp. 1017 (E.D.S.C. 1948), aff'd, 174 F.2d 391 (4th Cir. 1949). Key, Southern Politics, pp. 628-632. Fraser, Charleston!, pp. 398-99. 89 O'Neill, “From the Shadow of Slavery,” p. 110; Brown, "Civil Rights Activism," pp. 237-46. Brown gives the numbers as 3,036 Charlestonians and 1,001 North Charlestonians for a total of 4,727 newly registered African American voters. On McCray and the Progressive Democrats see Patricia Sullivan, "Southern Reformers, The New Deal, and the Movement's Foundation," in Armistead Robinson and Patricia Sullivan, eds., New Directions in Civil Rights Studies (Charlottesville: University of Virginia Press, 1991), pp. 87, 88; and Days of Hope: Race and Democracy in the New Deal Era (Chapel Hill: University of North Carolina, 1996) pp. 8, 170-71, 189-91; Robert A. Garson The Democratic Party and the Politics of Sectionalism, 1941-1948 (Baton Rouge: Louisiana State University Press, 1974), p. 117; Orville Vernon Burton,
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“South Carolina Democratic Party (PDP),” in Waldo E. Martin and Patricia Sullivan, eds., Civil Rights in the United States, vol 2 (NY: Macmillan, 2000), pp. 693-94. 90 O'Neill, "From the Shadow of Slavery," p. 106. 91 Underwood, The Constitution of South Carolina, p. 265 n. 224. Citing Gaud v. Walker, 214 S.C. 451, 464, 53 S.E. 2d 316, 321 (1949). 92 Brown, "Civil Rights Activism," p. 250. 93 "Four Negro Policemen Go on the Beat Today," Charleston News and Courier, 29 August 1950. 94 Brown, "Civil Rights Activism," pp. 250-52. 95 Ibid. 96 Smyth, "Segregation in Charleston in the 1950s," pp. 110-11. 97 O'Neill, "From the Shadow of Slavery," p. 117; Brown, "Civil Rights Activism," p. 254. 98 Brown, "Civil Rights Activism," pp. 72-77. 99 "Local Voters Ballot Today," 8 July 1952 and Bryan Collier, "Negroes Eliminated; 10 Men Apparently win House Seats," 9 July 1952, both in Charleston News and Courier, cited in Brown, "Civil Rights Activism," pp. 264-67. 100 “Lincolnville to Celebrate 64th Anniversary," Charleston News and Courier, 23 April 1953. 101 Charleston News and Courier, 14 February 1954; Brown, "Civil Rights Activism," pp. 270-71. 102 O'Neill, "From the Shadow of Slavery," p. 90. 103 Charleston News and Courier, 18 May 1954, quoted in Brown, "Civil Rights Activism," p. 76. 104 Edgar, South Carolina, p. 523. 105 Smyth, "Segregation in Charleston in the 1950s," pp. 110-11, 127; Cox,"1963—The Year of Decision," p. 303; O'Neill, "From the Shadow of Slavery," p. 138. 106 For Byrnes’ explanation of the gerrymandering, see his quoted radio address in the above Section: History of Discrimination in South Carolina. "Byrnes Withholds Specific Comment," Charleston News and Courier, 18 May 1954, 6A; Brown, "Civil Rights Activism," p. 67; O'Neill, "From the Shadow of Slavery," p. 96; Baker, "Ambiguous Legacies," p. 176, 265-66. Dr. Gordon was the expert witness for the plaintiffs in U.S., Plaintiff, Richard Ganaway, et.al., Plaintiffs-Intervenors v. Charleston County School District and State of South Carolina, C.A. No. 81-50-8. 107 Smyth, "Segregation in Charleston in the 1950s," pp. 110-11; Cox, "1963- The Year of Decision," p. 352. 108 O'Neill, "From the Shadow of Slavery," pp. 152, 155-56; Brown, "Civil Rights Activism," p. 76-77. 109 Brown v. South Carolina State Forestry Commission, 226 F. Supp., 646 (E.D.S.C. 1963), afff'd, 331 F. 2d 142 (4th Cir. 1964); W.D. Workman, "S.C. May Eliminate State parks as Result of Negroes Court Action," Charleston News and Courier, 26 July 1955 cited in Brown, "Civil Rights Activism," p. 150; Cox, “1963—The Year of Decision," pp. 342-45, 263-64. O'Neill, "From the Shadow of Slavery," pp. 154-55, 158, 166. See also Robert F. Morrison, "Beach for Negroes," Letters to the Editor, 27 April
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1952, "Possible Court Action Hinted in Negro Park Controversy," 24 November 1952, "Negro Spokesmen Dislike Park Site," 17 December 1952, "Negroes Threaten Court Fight to Open State Parks," 2 July 1953, "Court Action to Open State Parks to Negroes Advocated,"3 July 1953, "Negroes Seek Use of Edisto State Park," 17 August 1953, "Entry to Edisto Park or Court, NAACP Writes" and "Legislators to Consider Request That Edisto Be Opened to Negroes," both 28 August 1953, all in Charleston News and Courier. 110 "Man in the News: Independence Key to Micah Jenkins,” Charleston News and Courier, 28 August 1956 and Charleston Evening Post, "Micah Jenkins, Conservative," 23 June 1956, both in Micah Jenkins file, Vertical Files, South Carolina Room, Charleston Public Library; Fowler, Presidential Voting in South Carolina; Cline, "The South Carolina Negro Vote.” 111 Brown, "Civil Rights Activism, " p. 79. 112 O'Neill, "From the Shadow of Slavery," p. 169; Brown, "Civil Rights Activism," p. 78; Baker, "Ambiguous Legacies," pp. 177-78; Smyth, "Segregation in Charleston in the 1950s," p. 112. See the Minutes of the County Board of Education, May 24, 1956, exhibit in U.S. and Ricahrd Ganaway, et al. v. Charleston County. 113 Simon Cuthbert-Kerr, "'You Don't Have to Make the X for Me, Because I can Write my Own Name': Septima Clark, Citizenship Education, and Voter Registration in the South Carolina Sea Islands, 1954-1963," The Avery Review, III:1 (Spring 2000), 56- 80; Smyth, "Segregation in Charleston in the 1950s," p. 113; Brown, "Civil Rights Activism," p. 124. 114 "Special Election Results," Charleston News and Courier, 4 December 1957 cited in Brown, "Civil Rights Activism," p. 274. 115 Cummings v. City of Charleston, 288 F.2d 817 (4th Cir. 1961); O'Neill, "From the Shadow of Slavery," pp. 212-14; Brown, "Civil Rights Activism," p. 151-57; Baker, "Ambiguous Legacies," p. 192. 116 Smythe, "Segregation in Charleston in the 1950s," p. 122. 117 O'Neill, "From the Shadow of Slavery,” pp. 2, 90. 118 Cox, "1963—The Year of Decision," p. 352; O'Neill, "From the Shadow of Slavery," p. 198; Brown, "Civil Rights Activism," pp. 81, 166; Baker, "Ambiguous Legacies," pp. 198-201. 119 Brown, "Civil Rights Activism," p. 82; Baker, "Ambiguous Legacies," pp. 204-5. 120 Brown, "Civil Rights Activism," p. 84; O'Neill, "From the Shadow of Slavery," p. 224; Lowe, "Brown on Trial," pp. 34-6. 121 Brown, "Civil Rights Activism," pp. 170-75. 122 Cox, “1963—The Year of Decision,” pp. 416, 419-20. 123 Edgar, South Carolina, p. 540. 124 Brown v. Charleston District Twenty School Board, 226 F. Supp. 819 (E.D.S.C. 1963); Brown, "Civil Rights Activism," p. 102. 125 O’Neill, "From the Shadow of Slavery," pp. 218, 225-38; Cox, “1963 – The Year of Decision,” pp. 404-18; Brown, "Civil Rights Activism," pp. 176-216; "Baker, "Ambiguous Legacies," pp. 213-18; Alada Shinault-Small, "Several Rungs Up the Ladder—The Struggle for Civil Rights in Charleston Summer 1963," The Avery Review,
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2:1(Spring 1999): 8-29, see p. 22-25 for a chronology of the events of the 1963 Charleston movement; see files on the Charleston Movement of 1963 and particularly the riot at the Avery Research Center, College of Charleston. 126 Cox, "1963—The Year of Decision," p. 421. 127 Cox, "1963—The Year of Decision," p. 168; “Fund to Aid District 20 in Court Battle is Cut,” Charleston News and Courier, 29 April 1965, 1B.. 128 Brown, "Civil Rights Activism," p. 96. 129 Lowe, "Brown on Trial,” pp. 33-55; Cox "1963—The Year of Decision," pp. 161, 230-31, 243-44; O'Neill, "From the Shadow of Slavery," pp. 239-40; Baker, "Ambiguous Legacies," p. 225; Brown, "Civil Rights Activism," pp. 90, 93. 130 Cox, ,"1963 –The Year of Decision," pp. 186, 217-230, 235-37, 240-43. 131 Cox, ,"1963—The Year of Decision," p. 169. 132 Gary Orfield, Public School Desegregation in the US, 1968-1980 (Washington: Joint Center for Political Studies, 1983), p. 23; Brown, "Civil Rights Activism," p. 98. 133 Fowler, Presidential Voting in South Carolina. 134 Carawan, Ain’t you got a right to the tree of life? p. 150. Fowler, "Negro Voting ," p. 1. 135 "Why Must Greater Charleston Organize?" Prepared by: Organization Committee, Greater Charleston Citizens' Council in Associations file, Vertical Files, South Carolina Room, Charleston Public Library. 136 News and Courier, 31 January 1967, 1B. 137 "Negro Named to School Board," Charleston News and Courier," 9 June 1965, 1B. 138 O'Neill, "From the Shadow of Slavery," pp. 290-91, Brown, "Civil Rights Activism," pp. 275-76. 139 Brown, "Civil Rights Activism," p. 276-77. 140 Baker, "Ambiguous Legacies," p. 255-56. 141 “Dr. King Will Speak Here Today,” and “Klan Holds Rally Near Ravenel,” Charleston News and Courier, July 30, 1967. 142 O'Neill, "From the Shadow of Slavery," p. 248-249. 143 Leon Fink and Brian Greenburg, Upheaval in the Quiet Zone: A History of the Hospital Workers' Union, Local 1199 (Urbana: University of Illinois Press, 1989), chap. 7, pp. 129-58, quotation from p. 130; Leon Fink, "Union Power, Soul Power: The Story of 1199B and Labor's Southern Strategy," Southern Changes 5:2 (1983), 9-20; for the background of the racial atmosphere, see the excellent documentary, "You Got to Move." On the conditions leading to the strike and the strike itself, see Steve Estes, "'I Am Somebody': The Charleston Hospital Strike of 1969," The Avery Review 3:1 (Spring 2000), 8-32; 144 Fraser, Charleston!, p. 428. 145 Smyth, "Segregation in Charleston in the 1950s," p. 113; Brown, "Civil Rights Activism," p. 124; Carawan, Ain’t you got a right to the tree of life? p. 150, 152. See also the excellent documentary on politics and African American life in Charleston in the 1960s, "You Got to Move." Bernice Robinson and Bill Saunders are interviewed about
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politics and discrimination in Charleston at the time the County Council method of election is changed to at-large. 146 Baker, "Ambiguous Legacies," p. 114. 147 A. J. Tamsberg to Thomas R. Waring, 1959, in the Papers of Thomas R. Waring, South Carolina Historical Society, Charleston, South Carolina. 148 Brown, "Civil Rights Activism," p. 124; "Negro Leaders Call Local Voter Registrations Fair," Charleston News and Courier, 25 March 1965, 10B; Carawan, Ain’t you got a right to the tree of life? p. 2. 149 Editorial, "City Election," Charleston News and Courier, 12 June 1967, p. 8A. 150 "Three Aldermanic Seats up for Grabs in Primary," News and Courier, 13 June 1967, 1A, 2A. 151 "Before You South Carolinians," Charleston News and Courier, 8 August 1950 commenting on earlier published article, "Johnston and the Negro Vote." 152 Baker, "Ambiguous Legacies," p. 188-89. 153 "Bloc Voting," Charleston News and Courier, 11 and 12 March 1959, cited in Brown, "Civil Rights Activism, " p. 126, n. 30 p. 132. 154 “Favored to Win,” Charleston News and Courier, 15 June 1965, 3A. 155 O'Neill, pp. 290-91; Brown, "Civil Rights Activism," pp. 275-76. 156 Fowler, "Negro Voting," p. 2. 157 “Figg Wrote School Bill,” Evening Post, 15 March 1967. 158 Charleston News and Courier, 22 February 1967. 159 Charleston News and Courier, 17 February 1967. 160 Charleston News and Courier, 8 May 1968. 161 Charleston News and Courier, 19 May 1968. 162 "County Officials Suffer Defeat," Charleston News and Courier, 12 June 1968, 1A, 6A. 163 Charleston News and Courier, November 20, 1968. 164 Charleston News and Courier, November 24, 1968. 165 "Edwards Says Rivers Reneged," Charleston News and Courier, 4 January 1969. 166 Editorial: "Stop Discrimination," Charleston News and Courier, 26 January 1969. 167 "County Republicans Name Jenkins Party Chairman," News and Courier, 13 May 1969, 1B. 168 O'Neill, "From the Shadow of Slavery,” pp. 2, 90. 169 "Professor Says Constitution Anti-Negro," Charleston News and Courier, 11 January 1967, 8A. 170 Underwood, The Constitution of South Carolina, see chap. 4 "Prelude to Home Rule: Charleston County, 1948," pp. 106-115. 171 Charleston County, Section 14-1162, 1975 Cumulative Supplement, chap. 26, pp. 455-56. 172 No. 304, "An Act to Amend Sections 14-1162 and 14-1163 of the 1962 Code….," S.C. Statutes at Large, pp. 570-73.
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173 Journal of the Senate of the First Session of the 97th General Assembly …1967, (February 2, 7, 8), pp. 226, 304-5, 317. (Hereinafter referred to as Senate Journal) The bill received its second reading on February 7, and third reading February 8. pp. 304-305, 317. Journal of the House of Representatives of the First Session of the 97th General Assembly …, 9 June 1967, p. 340 (hereinafter referred to as House Journal). 174 "Bourne Seeks Change In Election of Council," Charleston News and Courier, 3 February 1967, p. 8A. Bourne intended the three members from North Charleston to be elected by all members of the North Charleston area, not at-large by the entire county. Later newspaper accounts, however, simply talk about electing the North Charleston council members at-large. 175 "Senate Gives Nod to Council Bill," Charleston News and Courier, 9 February 1967, 1B. The South Carolina Department of Archives and History was unable to locate the initial S131 proposed by Senator Bourne. Interview with John E. Bourne, Jr. August 15, 2001. 176 "Delegation Favors More Authority to Council," Charleston News and Courier, 6 February 1967 1B. 177 "Council Desires Are Spelled Out," Charleston News and Courier, 8 February 1967, 10A. 178 "County Council Request Expansion of Powers" Charleston News and Courier, 12 April 1967, p. 1-2A. Previously the newspaper referred to the Committee as the Legislative Study Committee. 179 "Council Proposal May Face Delay," Charleston News and Courier, 13 April 1967, pp. 1-2A. 180 "Changing County Council," Charleston News and Courier, 16 April 1967, 14A. 181 House Journal, 1 June 1967, p. 1508. 182 "Delegation Prepares Council Bill," 1 June 1967, 17C. 183 Senate Journal June 8, p. 1462, June 29, p. 1906. 184 Senate Journal July 5, 1967, pp. 2221-2, 243-44; House Journal, July 5 1967, p. 2083. 185 “Disputed Bill Goes to Committee,” Charleston News and Courier, July 6, 1967, 1B. 186 “Committee Gives Nod to Bill,” Charleston News and Courier, July 11, 1967, 1B, 6B. 187 House Journal July 13, 1967, pp. 2356-2357. 188 Senate Journal July 14, 1967, pp. 2240-41, House Journal, 1967, July 14, p. 2361. “Delegation Fails to Agree on County Council Legislation,” Charleston News and Courier, 14 July 1967, 1B, 6B. 189 House Journal 1968, April 18, 1968, p. 1079, April 23, p.1136, April 24, p. 1157; Senate Journal 1968, April 24, p. 940, April 25, p. 962, May 1, p. 1019. 190 "Senators Agree to Amend At-Large Election Bill,” Charleston News and Courier, 1 May 1968, 1B. 191 "Council Bill is Delayed in Senate," Charleston News and Courier, 2 May 1968, 2B.
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192 "House Group Holding Up Two Bills," Charleston News and Courier, 9 May 1968, 22A. 193 Senate Journal 1968, April 24 (p. 940), April 25 (p. 962), May 1 (p. 1019). Read in the House April 18, 23, 24, 1968 and read in the Senate April 24, 25 and June 27, 1968. Jacket Cover of House Bill 2891, South Carolina Department of Archives and History (hereinafter referred to as SCDAH). 194 "Charleston County Council Seeks Big Salary Increase," Charleston News and Courier, 8 January 1969. 195 "Council Asks Delegation to Put Ceiling on Salary," Charleston News and Courier, 2 February 1969, 1B. 196 "Legislators Reach Accord On Lifting Salary Ceiling: At Large Elections Planned for Council," Charleston News and Courier, 12 February 1969. 197 House Journal 18 February 1969, p. 318. 198 "Change to Be Proposed On Council Seats," Charleston News and Courier, 19 February 1969, 1B. 199 House Journal 1969, Feb. 20, p. 50. See the House Amended Bill in House Journal 1967, June 6, "S. 131—Amended…", pp. 1545-46; and the draft for House Bill 2891 dated April 9, 1968 attached to letter from R. B. Scarborough to Honorable Daniel R. McLeod, Attorney General, April 11, 1968, in the South Carolina, Attorney General's Office, Opinions, 1878-1994, Box 114, File Reapportionment, S110031, SCDAH. The two bills are identical, and the wording for the area of North Charleston read, "Three members shall be residents of the area of the county lying north of the City of Charleston, as now constituted, between the Ashley and Cooper Rivers extending to the Dorchester and Berkeley County lines." 200 House Journal February 21, 1967, p. 357; Senate Journal February 25, 1969, p. 313. 201 "Council Bill Hits Snag in Senate," Charleston News and Courier, 27 February 1969, 11C. 202 House Reading were Feb. 18, 20, 21 and Senate Reading Feb. 25, March 4 and 5, 1969. Jacket Cover to House Bill 1262, Acts, Legislative Records, SCDAH; House Journal February 18 1969, p. 318, February 19, p. 333, February 20, p. 350, February 21, p. 357, March 18, p. 532; Senate Journal February 25, 1969, p. 313, March 4, p. 383, March 5, p. 393, March 18, p. 459. 203 See for example, the essays in Chandler Davidson, ed. Minority Vote Dilution (Washington, D.C. Howard University Press, 1984) and Chandler Davidson and Bernard Grofman, eds., Quiet Revolution in the South: The Impact of the Voting Rights Act, 1965-1990 (Princeton: Princeton University Press, 1994) and the books by J. Morgan Kousser, Colorblind Injustice: Minority Voting Rights and the Undoing of the Second Reconstruction (Chapel Hill: University of North Carolina Press, 1999); Frank R. Parker, Black Votes Count: Political Empowerment in Mississippi after 1965 (Chapel Hill: University of North Carolina Press, 1990); Steven F. Lawson, In Pursuit of Power: Southern Blacks and Electoral Politics, 1965-1982 (New York, Columbia University Press, 1985); see articles by Peyton McCrary, "The Dynamics of Minority Vote Dilution: The Case of Augusta Georgia, 1945-1986," Journal of Urban History, 25:2 (January 1999): 199-224; McCrary and Steven F. Lawson, "Race an Reapportionment, 1962: The
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Case of Georgia Senate Redistricting, Journal of Policy History, 12:3 (2000): 293-320; J. Morgan Kousser, "How to Determine Intent: Lessons from L. A.," Journal of Law and Politics 7: 591-732. Several articles have appeared in law journals, for example, Peyton McCrary and J. Gerald Hebert, "Keeping the Courts Honest: The Role of Historians as Expert Witnesses in Southern Voting Rights Cases," 16 (1989): 101-28 and McCrary, "Discriminatory Intent: The Continuing Relevance of 'Purpose" Evidence in Vote- Dilution Lawsuits," Howard Law Journal 28 (1985): 463-93; and McCrary "Yes, But What Have They Done to Black People Lately? The Role of Historical Evidence in the Virginia School Board Case,” Chicago-Kent Law Review 70:3 (1944): 1275-305. 204 Columbia State and Record, combined Sunday edition, 5 December 1965, D3. Graham served seventeen years on County Council and served longer than any other member as the Chair of the Council. He had been chair from 1957-65, but had given up the chairmanship for health reasons briefly in 1965. He was chair again in 1967 when the Council recommended changing to an at-large election method. Charleston News and Courier, "Graham to Quit Chairmanship," 19 December 1964, 1B and "County Council Getting New Look," 28 February 1974, 15E. 205 “Committee Gives Nod to Bill,” Charleston News and Courier, 11 July 1967, 1B, 6B. Ironically for a “good government” argument, in 1974, several members who had supported the change to at-large election were accused of embezzlement. "Price, Balliet Indicted," 9 January 1974; "It's A Sticky Problem," 28 April 1974, p. 21C; "County Council Getting New Look," 28 July 1974, p. 15E, all in Charleston News and Courier. 206 "Majority of Candidates Favor At-Large Election," Charleston News and Courier, 3 May 1968. It appears at least two of the candidates who supported district elections won over candidates who supported the at-large system. 207 377 US 533 (1964). 208 257 F. Supp. 905; see discussion in Peyton McCrary, Jerome A. Gray, Edward Still, and Huey L. Perry, “Alabama,” in Chandler Davidson and Bernard Grofman, eds., Quiet Revolution, pp. 40, 399 (n. 25). 209 "2 More Local Bills Cleared by House," Charleston News and Courier, 25 April 1968, 1B. 210 "Senators Agree to Amend At-Large Election Bill, Charleston News and Courier, 1 May 1968, 1B. 211 "Majority of Candidates Favor At-Large Election," Charleston News and Courier, 3 May 1968. 212 390 US 474 (1968). 213 R. B. Scarborough, Chairman to Honorable Daniel R. McLeod, Attorney General, 11 April 1968, and Daniel R. McLeod, Attorney General to Honorable R. B. Scarborough, Member, House of Representatives, 15 April 1968, and "A Bill: To amend Section 14-1162 and 14-1165, Code of Laws… to require members to be elected from the county at Large, to Designate Residency Requirements and Increase Compensation for Council Members," House, Attorney: Lipton; Stenographer: Ballinger; Date: 4-9-68, all in South Carolina, Attorney General's Office, Opinions 1878-1994, Box 114 File Reapportionment s110031, SCDAH. See also the letter of Grady L. Patterson, Jr., Assistant Attorney General to Hon. W. O'Dell Venters (House Representative from
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Florence), 16 February 1966, on his inquiry as to the constitutionality of Senate Bill No. 524 on the application of Reynolds v. Sims. 214 "Charleston County Council Seeks Big Salary Increase," Charleston News and Courier, 8 January 1969, 1,7A.. 215 Ibid. 216 "County Council Reaching Manhood," Charleston News and Courier, 26 January 1969, 10A. 217 "Twelve Council Districts Outlined," Charleston News and Courier, 9 November 1969. 218 See the File on City-County Consolidation, in the Vertical Files, Charleston County Public Library. 219 The 1966 Public Administration Service, "Local Government in Charleston County, South Carolina," (1313 East Sixtieth Street, Chicago Il) recommended county- city merger, and in their report they also recommended that the consolidated government adopt at-large elections. They included no discussion nor rationale for this election system, and at no point in this report did consultants ever say that it required one- person, one-vote. For newspaper coverage of the city-county merger, see the Charleston City- County Consolidation file, Vertical Files, South Carolina Room, Charleston Public Library. Apparently the referendum was defeated by the areas outside the city who voted against merger. The two areas used for comparisons were Jacksonville, Florida and Nashville, Tennessee. Jacksonville adopted a mixed plan (district and at-large) and Nashville adopted a district election system. Don H. Doyle, Nashville Since the 1920s (Knoxville: University Tennessee Press, 1985), pp. 190, 207-9, Richard Martin, Consolidation: Jacksonville Duval County, The Dynamics of Urban Political Reform (Jacksonville, Florida: Crawford Publishing Company, 1968). 220 "Controversial full-slate law recommendations," Charleston News and Courier, 4 January 1969. 221 "Opposition Mounting to Repeal of Full Slate Law,” Charleston News and Courier, 31 January 1969. 222 "Legislators Reach Accord on Lifting Salary Ceiling," Charleston News and Courier, 12 February 1969. 223 A. J. Clement, "Letter to the Editor, Charleston News and Courier, 21 July 1951; Brown, “Civil Rights Activism," p. 256. 224 "First Request for Judicial Notice," III. Objections Under Section 5 of the Voting Rights Act, 16, Charleston City Council, September 20, 1974, p. 78. 225 "First Request for Judicial Notice," III. Objections Under Section 5 of the Voting Rights Act, 20, Charleston City Council, February 18, 1975, pp. 79-80. 226 "First Request for Judicial Notice," III. Objections Under Section 5 of the Voting Rights Act, 16, Charleston County Council, September 24, 1974, pp. 78-79. Ladd Deposition, 10 March 1972, pp. 3, 10,12, 23 discusses in general the inability of African American candidates in the South to attract white voters. For South Carolina and racial bloc voting see, Burton, et al., "South Carolina," pp. 212-13; James W. Loewen, "Racial Bloc Voting and Political Mobilization in South Carolina," Review of Black Political Economy 19 (1990): 23-37; John C. Ruoff, "Racial Polarization and Participation in Voting in South Carolina Elections, 1992-2000," June 26, 2001 Presented to Election
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Laws Subcommittee, Judiciary Committee, S.C. House of Representatives, Prepared on Behalf The Southern Poverty Law Center. 227 Charles A. Beard, American City Government: A Survey of Newer Tendencies (New York: The Century Company, 1912), pp. 95-97. 228 A 1960s standard political science textbook, Edward C. Banfield and James Q. Wilson, City Politics (Cambridge: Harvard University Press, 1963), pp. 87-96, develop this argument in more detail. See Paul T. David, "1 Member vs. 2, 3, 4 or 5," National Civic Review, LV (February 1966), pp. 75-81. 229 “Bill Would Extend Voting Rights Act,” Charleston News and Courier, 31 January 1969, 15A. 230 Acts and Joint Resolutions of the General Assembly of the State of South Carolina, Regular Session of 1954, Second Part of Forty-Eighth Volume of Statutes at Large, No. 721 (R848m H2121), pp. 1795-96; House Journal 1954, March 16 (pp. 987- 88, 1005-6), March 17 (p. 1039), March 24 (p. 1323), March 27 (p. 1372); Senate Journal 1954, March 17 (pp. 718, 720), March 23 (p. 930), March 24 (pp. 934, 953), March 26 (p. 989); Interview with Herbert Fielding, August 11, 2001; 14 February, "Session Opens in Secrecy, Adjourns in Controversy," 4 March, "Delegation Favors Council Reduction Plan," 17 March, "General Assembly Directs $1 Million Bond Issue for Bridge Construction Here," 26 March, all 1954, Charleston News and Courier; Brown, "Civil Rights Activism," pp. 270-71. 231 Fraser, Charleston! p.408. 232 Brown, "Civil Rights Activism," p. 250. Brown has the date wrong, she has the City Council going at-large in 1950. 233 Deposition of Professor Everett Carll Ladd, Jr. 10 March 1972, pp. 5, 8 in Stevenson v. West, CA 72-45; Everett Carll Ladd, Jr., Negro Political Leadership in the South (Ithaca, NY: Cornell University Press, 1966). 234 Carawan, Aint You Got a Right to the Tree of Life?, p. 152; Act. No. 890 (R1103, H2252), "An Act to Amend Section 21-1631 of the Code of Laws of South Carolina, 1952, Relating to the Election or Appointment of Trustees of School Districts in Charleston County, So as to Make Further Provision for the Appointment of the Trustees of St. John's School District No. 9 and St. Paul's School District No. 23, in the County," 19 April 1956, Statutes at Large of South Carolina: General and Permanent Laws – 1956, pp. 2143-44. 235 Burton, et al. "South Carolina," Table 7.8A, pp. 207-11, 228-30. 236 According to unofficial figures published in the Charleston News and Courier, 1 November 1964. 237 U.S. Commission on Civil Rights, Political Participation (Washington, D.C. 1968), pp. 252-53. 238 U.S., Census of Population: 1950 Volume 2 Characteristics of the Population, Part 40 South Carolina (Washington, D.C., 1952), p. 47 239 U.S., Census of Population: 1960 Volume 1 Characteristics of the Population, Part 42 South Carolina (Washington, D.C., 1961), p. 38. 240 U.S., 1970 Census of Population Volume 1, Characteristics of the Population Part 42 South Carolina (Washington, D.C.,1973), pp. 39, 55, 67, 77, 200. One historian has the 1970 old peninsula city population as 46,575, of whom nearly two-thirds were
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non-whites and another argues that 42 percent of whites left the old peninsula city in the 1960s. See O'Neill, "From the Shadow of Slavery," pp. 209-212 and Baker, “Ambiguous Legacies,” pp. 235-36. 241 O'Neill, "From the Shadow of Slavery," pp. 209-212. 242 Fraser, Charleston! pp. 420-21. 243 First Request for Judicial Notice, III. Objections Under Section 5 of the Voting Rights Act, No. 16, p. 78 (September 24, 1974); Burton, et al., “South Carolina,” p. 207. 244 Columbia State, 26 April 1967, 1, 13A. 245 Columbia State, 30 April 1967, 3D. 246 "Election Returns from Charleston County," Charleston News and Courier, 9 November 1966. Interviews with Lonnie Hamilton, 3 and 15 August 2001; Interview with Rev. LeRoy Fayell, 3 August 2001. Using the 1970 registration data for those precincts north of the City of Charleston and east of the Ashley and west of the Cooper rivers, there were a total of 14,391 whites and 4,235 non-whites registered to vote. In St. Michael and St. Phillip precinct, there were 1,008 African American and 334 whites. Azalea precinct had 759 non-white voters. 247 "Election Changes Council," Charleston News and Courier, 7 November 1968, 9B. 248 Ladd Deposition, 10 March 1972, p. 15; "Study: Race Important in South Carolina Voting," Associated Press Newswires, Wednesday, July 25, 2001. 249 "Appointment of Negroes Suggested," Charleston News and Courier, 19 April 1967, 4C; Columbia State, 14 April (p. 1) and 9 (p. 7B) and 24 (p. 3B) June 1967. 250 "Negro Named to School Board," Charleston News and Courier, 9 June 1965, 1B; "Appointment of Negroes Suggested," Charleston News and Courier, 19 April 1967, 4C. 251 Deposition of Dr. Gordon Stine, March 9, 1972, in Leverne Stevenson, et al, v John C. West, etc., C.A. No. 72-45, pp. 3-4, 32, 36-38. 252 "Voters Urged to Cast Ballots," Charleston News and Courier 12 June 1967, 1B; County Officials Suffer Defeat," Charleston News and Courier, 12 June 1968, 1A, 6A; O'Neill, "From the Shadow of Slavery," pp. 295-97. 253 "Challenger Crosby," Charleston News and Courier, 16 April 1978, 1E. 254 Interview with Lonnie Hamilton, III, 3 and 15 August 2001. 255 Deposition of Lonnie Hamilton, 5 June 1990, pp. 16, 19, 23, 26, 34, 45,55-56, 58-59, 63 Charleston, S.C. NAACP v. Charleston County School Board, C.A. No. 2:88- 2938-1. 256 Hamilton Deposition, pp. 21-2, 45. 257 Columbia State, 28 August 1964; Baker, "Ambiguous Legacies," p. 231. 258 Especially relevant to Micah Jenkins's role as chair of the County Council committee that recommended in 1967 the change to at-large elections is the 1965 Citizens' Council’s answer to "What can a Citizens' Council do?" According to a brochure the Council distributed, "Through its own committees and individual members it can identify and disseminate lawful ways of resisting destructive applications of statutes and edicts." Brochure entitled “Why Must Greater Charleston Organize?"
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Prepared by: Organization Committee, Greater Charleston Citizens' Council in Associations file, Vertical Files, South Carolina Room, Charleston Public Library. 259 "Man in the News: Independence Key to Micah Jenkins, Charleston News and Courier, 28 August 1956 and Charleston Evening Post, "Micah Jenkins, Conservative," 23 June 1956, both in Micah Jenkins file, Vertical Files, South Carolina Room, Charleston Public Library. 260 Quint, Profile in Black and White, pp. 44-45, 47-48, 137-38, quotation p. 45; Neil R. McMillen, The Citizens' Council: Organized Resistance to the Second Reconstruction, 1954-64 (Urbana: University of Illinois Press, 1972), pp. 75-6, 78, 117- 18, 313, quotation note 6, pp. 117-18; Smyth, "Segregation in Charleston in the 1950s," p. 127. 261 Quint, Profile in Black and White, p. 44. 262 Ibid., p. 46 and Deposition of Charles M. Gibson, 16 December 1986, pp. 68- 69, U.S. v. Richard Ganaway, et al., CA No. 81-50-8. 263 " GOP Loses Fight to Cut Negro Vote," Charleston Post and Courier, 2 June 1967, 1A, 13A. 264 "School Bill Clears Senate," Charleston News and Courier, 8 June 1967, 1, 8A; “County School Bill Passes Senate, 23-5,” Charleston Evening Post, 1 March 1967. 265 “GOP To Caucus On Bill Today,” Charleston News and Courier, 2 March 1967; "School Merger: Charleston Bill Passes," Columbia State, 2 March 1967. 266 Charleston Evening Post, 23 March 1967, 2B; Gibson deposition, pp. 113-14. 267 Gibson Deposition, p. 128. 268 Quotations from "Crosby Blasts Bourne Administration as 'Racist'," 29 April 1978, 3A; see also "Challenger Crosby," 16 April 1978 1E, both in Charleston News and Courier. 269 R. Scott Baker, "Ambiguous Legacies,” pp. 232-3; Brown, "Civil Rights Activism," p. 93; see also, "College Issue May Cost Charleston Unit Charter," Baltimore African American, 20 August 1949. 270 Charleston News and Courier, 10 November 1963; Baker, "Ambiguous Legacies," p. 233; Cox, "1963—Year of Decision," p. 233, 235. 271 Columbia State, 24 (p. 8B) and 25 (p. 1B) September 1963 quoted in Cox, "1963—Year of Decision," p. 236. 272 Editorial, Charleston Evening Post, 9 January 1968, 2B; Gibson deposition, p. 109. 273 See for example, President Grice's Statement to the Trustees, n.d. (probably 1965), Box 45, folder 8, the Papers of George Grice, College of Charleston. 274 Baker, "Ambiguous Legacies," p. 233 citing Charleston News and Courier, 3, 4, 7, 8,9, 10, 11, 12, 22 September, 25 October, and 11 December 1963; Edmund L. Drago, Initiative, Paternalism, and Race Relations: Charleston's Avery Normal Institute (Athens: University of Georgia Press,1990), pp. 274-75. 275 Baker, "Ambiguous Legacies," p. 234; Drago, Initiative, Paternalism, and Race Relations, 274-75. 276 Charleston News and Courier, 4 March 1967; Baker, “Ambiguous Legacies,” p. 268.
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277 “School Consolidation Bill May Go To House Today: Delay In Debate Expected,” Charleston News and Courier, 19 April 1967. 278 “By House Members: School Bill Given Key 2nd Reading,” Charleston Evening Post, 20 April 1967. 279 “Charleston School Bill Passes House,” The State, 21 April 1967. 280 “Foes Fail to Stall School Bill,” Charleston News and Courier, 21 April 1967. 281 In a meeting reported in the Charleston News and Courier, Senator Worsham used the code words of states’ rights, "There's a lot of talk today about states rights. Now the city rights have been taken away and the majority should rule." Charleston News and Courier, 20 February 1967. See Gibson Deposition, pp. 63, 70, 87-93, 158-59. 282 Gibson Deposition, pp. 51-53, 56, 63 “palatable” quotation; Deposition of Dr. Creighton Frampton, 14 March 1986, US, Richard Ganaway, et al. v. Charleston County School District, Case Number 81-50-8, pp.39, 68; Baker, "Ambiguous Legacies," pp. 267-70; Plaintiffs’ Proposed Post-Trial Findings of Fact, U.S. and Richard Ganaway, et al. v. Charleston County School District, pp. 211-12. 283 Baker, "Ambiguous Legacies," p. 270. 284 Act 844 (R294, H1931), "An Act to make Additional Provisions …," 22 March 1952, pp. 2085-87, and Act 379 (R256, H1150), pp. 546-661, both in Statutes at Large of South Carolina,; Article 4, 1960 Cumulative Supplement, pp. 53, 185; Act 890 (R1103, H2252) "An Act to Amend Section 21-1631 of the Code of Laws of South Carolina, 1952, Relating to the Election or Appointment of Trustees of School Districts in Charleston County, So as to Make Further Provision For the appointment of the Trustees of St. John's School District No. 9 and St. Paul's School District No. 23, in the County, 19 April 1956, Statutes at Large of South Carolina: General and Permanent Laws – 1956, pp. 2144; Article 4, Charleston County, ch 27, S.C. Code 1962, 1975 Cumulative Supplement, pp. 211-12, 371-74; Act 1037 (R1272, S838) "An Act to Amend Section 21-1631 of the 1962 Code, Relating to the Elective or Appointment of Trustees of School Districts in Charleston County, So As to Make Further Provision for the Appointment of the Trustees of St. James Santee School District No. 1,.24 April 1964, Statutes at Large of South Carolina: General and Permanent Laws – 1964, p. 2368; Act No. 340 (R472, S20) "An Act to Abolish the School District of Charleston County and to Abolish the County Board of Education of Charleston County," Statutes at Large of South Carolina: General and Permanent Laws – 1967, 8 June 1967, pp. 470-476; Act No. 936 (R983, S612) "An Act to Amend Act No. 340 of 1967 …, 13 March 1970, Statutes at Large: General and Permanent Laws – 1970, pp. 2032-4; Act No. 397 (R644, H1870) "An Act to Amend Section 21-1631 …So as to Provide that All Trustees Shall Be Elected," Statutes At large: General and Permanent Laws –1973, pp. 692-93; Act No. 914 (R945, H2556) "An Act to Amend Section 21-1631, As Amended …To Delete References to Appointments of the Trustees of School District No. 20 of Charleston County ….," Statutes At Large: General and Permanent Laws –1974, pp. 1978-79; “Editorial: Break with the Past,” "School Bill Clears Senate," Charleston News and Courier, 19 February, 24 March, and 8 June 1967.
285 Interview with Herbert Fielding, August 11, 2001. Mr. Fielding stated that several bills were introduced to change the election of County Council to single member
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district. See House Journal, 1978 House Bill 3661 introduced by Reps. Robert R. Woods, Tillman, Kohn, Bradley, Washington and Rawl, p. 3747; February 21, p. 856, March 14, p. 1210, March 15, p. 1264, March 16, p. 1308. 286 "Blacks and Republicans Pushing Home Rule," Charleston News and Courier, 11 January 1976, 15C. 287 "Stuckey Raps Bourne on Home Rule Vote," Charleston News and Courier, 19 April 1976, 1B. 288 "Home Rule Election Target Date," Charleston News and Courier, 21 January 1976, 1B. 289 "Home Rule Vote Clouded," Charleston News and Courier, 1 June 1976, 1A. 290 "Home Rule – Pick Your Question," Charleston News and Courier, 12 December 1976, 31B. 291 "Decision Due Soon," Charleston Evening Post, 10 September 1977, 1A. 292 "Justice Department Rejects County's Home Rule, Charleston News and Courier, 15 June 1977, 1A; "Local Home rule Plan is Rejected, Charleston Evening Post, 15 June 1977, 1, 2A. 293 "Justice Still Objects to County Home Rule," Charleston News and Courier, 23 December 1977, 1A. 294 See Woods v. Hamilton, CA. No. 78-873, 473 F. Supp. 641 (D.S.C. 1979); U.S. v. County Council of Charleston County, South Carolina, C.A. No. 78-905; Hamilton v. Tillman (April 18, 1977; Infinger v. Edwards; Dodds v. Stuckey, 234 S.E. 2d 214 (S.C. 1977); County Council Minutes, 20 April, 18 May, 6 July 1976 in South Carolina Room, Charleston Public Library. The tangled web of the home rule debate in Charleston County can be followed through the newspaper articles in the Home Rule File, (Government County), in the Vertical files in the South Carolina Room, Charleston Library. See especially, "Home Rule Referendum is Debated," 31 July, 1,3A, "Decision on County Council's Future Must Be Faced, " 28 September 15E, "Choice of Local Government Bill Unlikely to Pass," 20 November 1,8B all 1975, "Blacks and Republicans Pushing Home Rule," 11 January 15-C, "Home Rule Election Target Date," 21 January 1B, "Bourne Backs Home Rule Petition Drive, 18 April 1,2A; "Stuckey Raps Bourne on Home Rule Vote," 19 April, 1B, "Home Rule Could Be Traumatic Experience Here," 2 May 27E, "Home Rule: A Chinese Puzzle," 6 May 1,7B, "Home Rule Vote Clouded," 1 June 1A, "Home Rule – Pick Your Question," 12 December 31B all 1976, "Justice Department Rejects County's Home Rule, Charleston News and Courier, 15 June 1A, "Council Seeks Reconsideration," 22 June 1A, "County Appeals Decision," 14 July 1A, "Home Rule Decision Soon," 10 September 1A; "Hamilton, Woods Debate Forms of Government," 16 September 11A, "Justice Still Objects to County Home Rule," 23 December 1A all 1977, all in Charleston News and Courier. Referendum Still Strong Possibility," 14 April 1A, "Local Home Rule Plan I Rejected," 15 June 1A, and "Decision Due Soon," 10 September 1A all in Charleston Evening Post, 1977. 295 Hamilton Deposition, p. 55; Interviews with Lonnie Hamilton, 3 and 15 August 2001; Interview with Rev. LeRoy Fayell, 3 August 2001; Interview with Herbert Fielding, August 11, 2001.
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APPENDIX C 2011-2012 Bill 3003: Voter ID - www.scstatehouse.gov - South Carolina ... http://www.scstatehouse.gov/sess119_2011-2012/bills/3003.htm Case 1:12-cv-00203-CKK-BMK-JDB Document 157-5 Filed 08/08/12 Page 143 of 151
South Carolina General Assembly 119th Session, 2011-2012
Download This Bill in Microsoft Word format
A27, R54, H3003
STATUS INFORMATION
General Bill Sponsors: Reps. Clemmons, Harrell, Lucas, Bingham, Harrison, Cooper, Owens, Sandifer, Allison, Ballentine, Bannister, Barfield, Bowen, Cole, Crawford, Daning, Delleney, Forrester, Frye, Gambrell, Hamilton, Hardwick, Hiott, Horne, Huggins, Limehouse, Loftis, Long, Lowe, Merrill, V.S. Moss, Norman, Parker, G.M. Smith, G.R. Smith, Sottile, Stringer, Toole, Umphlett, Viers, White, Crosby, Thayer, Simrill, Ryan, McCoy, Murphy, Atwater, Henderson, Quinn, Tallon, Patrick, J.R. Smith, Hixon, Taylor, Young, Bedingfield, Corbin, Pitts, Chumley, Spires, Pope, Bikas, Pinson, D.C. Moss, Erickson, Willis, Brady, Herbkersman, Nanney, Brannon and Whitmire Document Path: l:\council\bills\ms\7070zw11.docx Companion/Similar bill(s): 1, 3961
Introduced in the House on January 11, 2011 Introduced in the Senate on January 27, 2011 Last Amended on May 11, 2011 Passed by the General Assembly on May 11, 2011 Governor's Action: May 18, 2011, Signed
Summary: Voter ID
HISTORY OF LEGISLATIVE ACTIONS
Date Body Action Description with journal page number ------12/7/2010 House Prefiled 12/7/2010 House Referred to Committee on Judiciary 1/11/2011 House Introduced and read first time (House Journal-page 3) 1/11/2011 House Referred to Committee on Judiciary (House Journal-page 3) 1/12/2011 House Member(s) request name added as sponsor: Atwater 1/18/2011 House Member(s) request name added as sponsor: Henderson, Quinn, Tallon, Patrick, J.R.Smith, Hixon, Taylor, Young, Bedingfield, Corbin, Pitts, Chumley, Spires, Pope, Bikas, Pinson 1/19/2011 House Committee report: Favorable with amendment Judiciary (House Journal-page 2) 1/20/2011 House Member(s) request name added as sponsor: D.C.Moss 1/25/2011 House Member(s) request name added as sponsor: Erickson, Willis 1/25/2011 House Objection by Rep. Cobb-Hunter and Sellers (House Journal-page 32) 1/25/2011 House Requests for debate-Rep(s). Clemmons, Crawford, JE Smith, Hart, Govan, McEachern, Erickson, Brantley, King, Jefferson, Munnerlyn, Forrester, Parker, Allison, Mack, Mitchell, Bikas, DC Moss, JR Smith, Hixon, Taylor, Young, RL Brown, GA Brown, Anderson, Clyburn, Hosey, Brannon, Hayes, Battle, Gilliard, McCoy, Stringer, Sandifer, Whitmire, VS Moss, Nanney, Bedinfield, Henderson, Allen, Hearn, Dillard, Corbin, Hardwick, Loftis, Pope, Whipper, Ott, and Vick (House Journal-page 32) 1/26/2011 House Member(s) request name added as sponsor: Brady,
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Herbkersman, Nanney, Brannon, Whitmire 1/26/2011 House Amended (House Journal-page 28) 1/26/2011 House Read second time (House Journal-page 28) 1/26/2011 House Roll call Yeas-74 Nays-45 (House Journal-page 28) 1/27/2011 House Read third time and sent to Senate (House Journal-page 34) 1/27/2011 Senate Introduced and read first time (Senate Journal-page 17) 1/27/2011 Senate Referred to Committee on Judiciary (Senate Journal-page 17) 2/3/2011 Scrivener's error corrected 2/8/2011 Senate Motion For Special Order Failed (Senate Journal-page 14) 2/8/2011 Senate Roll call Ayes-25 Nays-15 (Senate Journal-page 14) 2/9/2011 Senate Motion For Special Order Failed (Senate Journal-page 23) 2/9/2011 Senate Roll call Ayes-26 Nays-14 (Senate Journal-page 23) 2/10/2011 Senate Special order, set for February 10, 2011 (Senate Journal-page 19) 2/10/2011 Senate Roll call Ayes-26 Nays-17 (Senate Journal-page 19) 2/15/2011 Senate Debate interrupted (Senate Journal-page 24) 2/16/2011 Senate Debate interrupted (Senate Journal-page 23) 2/17/2011 Senate Debate interrupted (Senate Journal-page 12) 2/22/2011 Senate Debate interrupted (Senate Journal-page 23) 2/23/2011 Senate Committee Amendment Amended and Adopted (Senate Journal-page 36) 2/23/2011 Senate Read second time (Senate Journal-page 36) 2/23/2011 Senate Roll call Ayes-26 Nays-15 (Senate Journal-page 36) 2/24/2011 Scrivener's error corrected 2/24/2011 Senate Read third time and returned to House with amendments (Senate Journal-page 11) 2/24/2011 Senate Roll call Ayes-24 Nays-15 (Senate Journal-page 11) 2/24/2011 Scrivener's error corrected 2/25/2011 Scrivener's error corrected 3/2/2011 House Debate adjourned until Thursday, March 3, 2011 (House Journal-page 49) 3/3/2011 House Debate adjourned until Tuesday, March 8, 2011 (House Journal-page 28) 3/8/2011 House Debate adjourned until Wednesday, March 9, 2011 (House Journal-page 73) 3/9/2011 House Debate adjourned on amendments (House Journal-page 27) 3/10/2011 House Debate adjourned on amendments (House Journal-page 30) 3/29/2011 House Debate adjourned on Senate amendments until Wednesday, March 30, 2011 (House Journal-page 30) 3/30/2011 House Debate adjourned on Senate amendments until Thursday, March 31, 2011 (House Journal-page 33) 3/31/2011 House Debate adjourned on amendments (House Journal-page 35) 4/5/2011 House Debate adjourned on Senate amendments until Wednesday, April 6, 2011 (House Journal-page 22) 4/6/2011 House Senate amendment amended (House Journal-page 36) 4/6/2011 House Returned to Senate with amendments (House Journal-page 36) 4/13/2011 Senate Non-concurrence in House amendment (Senate Journal-page 35) 4/13/2011 Senate Roll call Ayes-28 Nays-15 (Senate Journal-page 35) 4/14/2011 House House insists upon amendment and conference committee appointed Reps. Clemmons, Lucas, and Merrill (House Journal-page 2) 4/14/2011 Senate Conference committee appointed McConnell, Campsen, and Scott (Senate Journal-page 21) 4/26/2011 House Conference report received and adopted (House Journal-page 38) 4/26/2011 House Roll call Yeas-71 Nays-36 (House Journal-page 38) 5/11/2011 Senate Conference report received and adopted (Senate Journal-page 35) 5/11/2011 Senate Roll call Ayes-26 Nays-16 (Senate Journal-page 35) 5/11/2011 Senate Ordered enrolled for ratification (Senate Journal-page 47)
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5/17/2011 Ratified R 54 5/18/2011 Signed By Governor 5/24/2011 Effective date See Act for Effective Date 5/24/2011 Act No. 27 View the latest legislative information at the LPITS web site
VERSIONS OF THIS BILL
12/7/2010 1/19/2011 1/26/2011 2/2/2011 2/3/2011 2/23/2011 2/24/2011 2/25/2011 4/6/2011 5/11/2011
(Text matches printed bills. Document has been reformatted to meet World Wide Web specifications.)
(A27, R54, H3003)
AN ACT TO AMEND SECTION 7-1-25, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE DEFINITION OF "DOMICILE", SO AS TO PROVIDE FACTORS TO CONSIDER IN DETERMINING A PERSON'S INTENTION REGARDING HIS DOMICILE FOR VOTING PURPOSES; TO AMEND SECTION 7-5-125, RELATING TO WRITTEN NOTIFICATION OF REGISTRATION, SO AS TO PROVIDE THAT IF AN ELECTOR LOSES OR DEFACES HIS REGISTRATION NOTIFICATION, HE MAY OBTAIN A DUPLICATE NOTIFICATION FROM HIS COUNTY BOARD OF REGISTRATION; TO AMEND SECTION 7-5-230, AS AMENDED, RELATING TO LEGAL QUALIFICATIONS OF APPLICANTS FOR REGISTRATION AND CHALLENGES OF QUALIFICATIONS, SO AS TO REVISE WHAT THE BOARD OF REGISTRATION MUST CONSIDER WHEN A CHALLENGE IS MADE REGARDING RESIDENCE OR DOMICILE OF AN ELECTOR; BY ADDING SECTION 7-5-675 SO AS TO PROVIDE THAT THE STATE ELECTION COMMISSION SHALL IMPLEMENT A SYSTEM TO ISSUE VOTER REGISTRATION CARDS WITH A PHOTOGRAPH OF THE ELECTOR, AND TO PROVIDE WHEN THE PROVISIONS OF THIS SECTION TAKE EFFECT INCLUDING A REQUIREMENT THAT IMPLEMENTATION IS CONTINGENT ON FUNDING TO IMPLEMENT THIS REQUIREMENT; TO AMEND SECTION 7-13-710, AS AMENDED, RELATING TO PROOF OF THE RIGHT TO VOTE, SO AS TO REQUIRE CERTAIN PHOTOGRAPH IDENTIFICATION IN ORDER TO VOTE, TO PROVIDE THAT ONE OF THE POLL MANAGERS SHALL COMPARE THE PHOTOGRAPH CONTAINED ON THE REQUIRED IDENTIFICATION WITH THE PERSON PRESENTING HIMSELF TO VOTE AND SHALL VERIFY THAT THE PHOTOGRAPH IS THAT OF THE PERSON SEEKING TO VOTE, TO PERMIT PROVISIONAL BALLOTS IF THE PHOTOGRAPH IDENTIFICATION CANNOT BE PRODUCED OR IF THE POLL MANAGER DISPUTES THE PHOTOGRAPH, TO PROVIDE EXCEPTIONS FOR A RELIGIOUS OBJECTION TO BEING PHOTOGRAPHED OR IF THE ELECTOR SUFFERS FROM A REASONABLE IMPAIRMENT THAT PREVENTS HIM FROM OBTAINING PHOTOGRAPH IDENTIFICATION, TO PERMIT THE CASTING OF A PROVISIONAL BALLOT IN THESE CASES UPON SPECIFIC REQUIREMENTS INCLUDING AN AFFIDAVIT, TO PROVIDE FOR THE MANNER IN WHICH THE COUNTY BOARD OF REGISTRATION AND ELECTIONS SHALL PROCESS THESE PROVISIONAL BALLOTS, AND TO PROVIDE THAT THE IDENTIFICATION REQUIRED
3 of 9 6/19/2012 6:46 PM 2011-2012 Bill 3003: Voter ID - www.scstatehouse.gov - South Carolina ... http://www.scstatehouse.gov/sess119_2011-2012/bills/3003.htm Case 1:12-cv-00203-CKK-BMK-JDB Document 157-5 Filed 08/08/12 Page 146 of 151 ABOVE IS FOR THE PURPOSE OF CONFIRMING THE IDENTITY OF THE ELECTOR AND TO PROVIDE FOR THE MANNER IN WHICH THE ELECTOR'S DOMICILE SHALL BE DETERMINED FOR PURPOSES OF VOTING; TO AMEND SECTION 56-1-3350, AS AMENDED, RELATING TO SPECIAL IDENTIFICATION CARDS ISSUED BY THE DEPARTMENT OF MOTOR VEHICLES TO RESIDENTS OF THIS STATE TEN YEARS OF AGE OR OLDER, SO AS TO REDUCE THIS AGE TO FIVE YEARS OF AGE OR OLDER, TO PROVIDE THAT THESE CARDS MUST BE ISSUED FREE OF CHARGE TO PERSONS SEVENTEEN YEARS OF AGE AND OLDER AND FOR THE FEE TO BE CHARGED TO PERSONS BETWEEN THE AGES OF FIVE AND SIXTEEN, TO DELETE LANGUAGE OF THE SECTION RELATING TO RENEWAL FEES AND WAIVER OF FEES, AND TO REVISE PROVISIONS OF THE SECTION PERTAINING TO USE OF THE FEES COLLECTED; TO PROVIDE THAT THE STATE ELECTION COMMISSION SHALL ESTABLISH AN AGGRESSIVE VOTER EDUCATION PROGRAM CONCERNING THE PROVISIONS OF THIS ACT TO EDUCATE THE PUBLIC IN CERTAIN PARTICULARS OF THIS ACT AND THE COMMISSION ALSO MAY IMPLEMENT ADDITIONAL EDUCATIONAL PROGRAMS IN ITS DISCRETION; TO PROVIDE THAT THE STATE ELECTION COMMISSION IS DIRECTED TO CREATE A LIST CONTAINING ALL REGISTERED VOTERS OF SOUTH CAROLINA WHO ARE OTHERWISE QUALIFIED TO VOTE BUT DO NOT HAVE A SOUTH CAROLINA DRIVER'S LICENSE OR OTHER FORM OF IDENTIFICATION CONTAINING A PHOTOGRAPH ISSUED BY THE DEPARTMENT OF MOTOR VEHICLES AS OF DECEMBER 1, 2011, AND TO PROVIDE THAT THE DEPARTMENT OF MOTOR VEHICLES MUST PROVIDE THE LIST OF PERSONS WITH A SOUTH CAROLINA DRIVER'S LICENSE OR OTHER FORM OF IDENTIFICATION CONTAINING A PHOTOGRAPH ISSUED BY THE DEPARTMENT OF MOTOR VEHICLES AT NO COST TO THE COMMISSION.
Be it enacted by the General Assembly of the State of South Carolina:
Factors to consider
SECTION 1. Section 7-1-25 of the 1976 Code, as added by Act 103 of 1999, is amended to read:
"Section 7-1-25. (A) A person's residence is his domicile. 'Domicile' means a person's fixed home where he has an intention of returning when he is absent. A person has only one domicile.
(B) For voting purposes, a person has changed his domicile if he (1) has abandoned his prior home and (2) has established a new home, has a present intention to make that place his home, and has no present intention to leave that place.
(C) For voting purposes, a spouse may establish a separate domicile.
(D) For voting purposes, factors to consider in determining a person's intention regarding his domicile include, but are not limited to:
(1) a voter's address reported on income tax returns;
(2) a voter's real estate interests, including the address for which the legal residence tax assessment ratio is claimed pursuant to Section 12-43-220(C);
(3) a voter's physical mailing address;
(4) a voter's address on driver's license or other identification issued by the Department of Motor Vehicles;
(5) a voter's address on legal and financial documents;
(6) a voter's address utilized for educational purposes, such as public school assignment and determination
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(7) a voter's address on an automobile registration;
(8) a voter's address utilized for membership in clubs and organizations;
(9) the location of a voter's personal property;
(10) residence of a voter's parents, spouse, and children; and
(11) whether a voter temporarily relocated due to medical care for the voter or for a member of the voter's immediate family."
Duplicate registration
SECTION 2. Section 7-5-125 of the 1976 Code, as added by Act 507 of 1988, is amended to read:
"Section 7-5-125. (A) Any person who applies for registration to vote and is found to be qualified by the county board of registration to whom application is made must be issued a written notification of registration. This notification must be on a form prescribed and provided by the State Election Commission.
(B) If an elector loses or defaces his registration notification, he may obtain a duplicate notification from his county board of registration upon request in person, or by telephone or mail."
Consideration of challenges
SECTION 3. Section 7-5-230 of the 1976 Code, as last amended by Act 103 of 1999, is further amended to read:
"Section 7-5-230. (A) The boards of registration to be appointed under Section 7-5-10 shall be the judges of the legal qualifications of all applicants for registration. The board is empowered to require proof of these qualifications as it considers necessary.
Once a person is registered, challenges of the qualifications of any elector, except for challenges issued at the polls pursuant to Sections 7-13-810, 7-13-820, and 7-15-420 must be made in writing to the board of registration in the county of registration. The board must, within ten days following the challenge and after first giving notice to the elector and the challenger, hold a hearing, accept evidence, and rule upon whether the elector meets or fails to meet the qualifications set forth in Section 7-5-120.
(B) When a challenge is made regarding the residence or domicile of an elector, the board must consider the provisions of Section 7-1-25(D).
(C) Any person denied registration or restoration of his name on the registration books shall have the right of appeal from the decision of the board of registration denying him registration or such restoration to the court of common pleas of the county or any judge thereof and subsequently to the Supreme Court."
System to be implemented
SECTION 4. Article 7, Chapter 5, Title 7 of the 1976 Code is amended by adding:
"Section 7-5-675. The State Elections Commission shall implement a system in order to issue voter registration cards with a photograph of the elector. This voter registration card may be used for voting purposes only."
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SECTION 5. Section 7-13-710 of the 1976 Code, as last amended by Act 459 of 1996, is further amended to read:
"Section 7-13-710. (A) When a person presents himself to vote, he shall produce a valid and current:
(1) South Carolina driver's license; or
(2) other form of identification containing a photograph issued by the Department of Motor Vehicles; or
(3) passport; or
(4) military identification containing a photograph issued by the federal government; or
(5) South Carolina voter registration card containing a photograph of the voter pursuant to Section 7-5-675.
(B) After presentation of the required identification described in subsection (A), the elector's name must be checked by one of the managers on the margin of the page opposite his name upon the registration books, or copy of the books, furnished by the board of registration. One of the managers also shall compare the photograph contained on the required identification with the person presenting himself to vote. The manager shall verify that the photograph is that of the person seeking to vote. The managers shall keep a poll list which must contain one column headed 'Names of Voters'. Before a ballot is delivered to a voter, the voter shall sign his name on the poll list, which must be furnished to the appropriate election officials by the State Election Commission. At the top of each page, the voter's oath appropriate to the election must be printed. The signing of the poll list or the marking of the poll list is considered to be an affirmation of the oath by the voter. One of the managers shall compare the signature on the poll list with the signature on the voter's driver's license, registration notification, or other identification and may require further identification of the voter and proof of his right to vote under this title as he considers necessary. If the voter is unable to write or if the voter is prevented from signing by physical handicap, he may sign his name to the poll list by mark with the assistance of one of the managers.
(C)(1) If the elector cannot produce the identification as required in subsection (A), he may cast a provisional ballot that is counted only if the elector brings a valid and current photograph identification to the county board of registration and elections before certification of the election by the county board of canvassers.
(2) If the manager disputes that the photograph contained on the required identification is the person presenting himself to vote, the elector may cast a provisional ballot. A determination of that provisional ballot must be made in accordance with Section 7-13-830.
(D)(1)(a) If an elector does not produce a valid and current photograph identification due to a religious objection to being photographed, he may complete an affidavit under penalty of perjury at the polling place and affirm that the elector: (i) is the same individual who personally appeared at the polling place; (ii) cast the provisional ballot on election day; and (iii) has a religious objection to being photographed. Upon completion of the affidavit, the elector may cast a provisional ballot. The affidavit must be submitted with the provisional ballot envelope and be filed with the county board of registration and elections before certification of the election by the county board of canvassers.
(b) If an elector does not produce a valid and current photograph identification because the elector suffers from a reasonable impediment that prevents the elector from obtaining photograph identification, he may complete an affidavit under the penalty of perjury at the polling place and affirm that the elector: (i) is the same individual who personally appeared at the polling place; (ii) cast the provisional ballot on election day;
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(2) If the county board of registration and elections determines that the voter was challenged only for the inability to provide proof of identification and the required affidavit is submitted, the county board of registration and elections shall find that the provisional ballot is valid unless the board has grounds to believe the affidavit is false.
(3) If the county board of registration and elections determines that the voter has been challenged for a cause other than the inability to provide proof of identification as required by subsection (A), the county board of registration and elections shall:
(a) note on the envelope containing the provisional ballot that the voter complied with the proof of identification requirement; and
(b) proceed to determine the validity of the remaining challenges before ruling on the validity of the provisional ballot.
(E) The purpose of the identification required pursuant to subsection (A) is to confirm the person presenting himself to vote is the elector on the poll list. Any address listed on the identification is not determinative of an elector's domicile for the purpose of voting. An elector's domicile for the purpose of voting is determined pursuant to the provisions of Section 7-1-25."
Special identification card provisions revised
SECTION 6. Section 56-1-3350 of the 1976 Code, as last amended by Act 277 of 2010, is further amended to read:
"Section 56-1-3350. (A) Upon application by a person five years of age or older who is a resident of South Carolina, the department shall issue a special identification card as long as:
(1) the application is made on a form approved and furnished by the department; and
(2) the applicant presents to the person issuing the identification card a birth certificate or other evidence acceptable to the department of his name and date of birth.
(B)(1) The fee for the issuance of the special identification card is five dollars for a person between the ages of five and sixteen years.
(2) An identification card must be free to a person aged seventeen years or older.
(C) The identification card expires five years from the date of issuance.
(D) Special identification cards issued to persons under the age of twenty-one must be marked, stamped, or printed to readily indicate that the person to whom the card is issued is under the age of twenty-one.
(E) The fees collected pursuant to this section must be credited to the Department of Transportation State Non-Federal Aid Highway Fund."
Voter education program
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(1) Post information concerning changes contained in this legislation in a conspicuous location at each county board of registration and elections, each satellite office, the State Elections Commission office, and their respective websites.
(2) Train poll managers and poll workers at their mandatory training sessions to answer questions by electors concerning the changes in this legislation.
(3) Require documentation describing the changes in this legislation to be disseminated by poll managers and poll workers at every election held following preclearance by the United States Department of Justice or approval by a declaratory judgment issued by the United States District Court for the District of Columbia, whichever occurs first.
(4) Coordinate with each county board of registration and elections so that at least two seminars are conducted in each county prior to December 15, 2011.
(5) Coordinate with local and service organizations to provide for additional informational seminars at a local or statewide level.
(6) Place an advertisement describing the changes in this legislation in South Carolina newspapers of general circulation by no later than December 15, 2011.
(7) Coordinate with local media outlets to disseminate information concerning the changes in this legislation.
(8) Notify each registered elector who does not have a South Carolina issued driver's license or identification card a notice of the provisions of this act by no later than December 1, 2011. This notice must include the requirements to vote absentee, early, or on election day and a description of voting by provisional ballot. It also must state the availability of a free South Carolina identification card pursuant to Section 56-1-3350.
In addition to the items above, the State Elections Commission may implement additional educational programs in its discretion.
Registered voter list
SECTION 8. The State Election Commission is directed to create a list containing all registered voters of South Carolina who are otherwise qualified to vote but do not have a South Carolina driver's license or other form of identification containing a photograph issued by the Department of Motor Vehicles as of December 1, 2011. The list must be made available to any registered voter upon request. The Department of Motor Vehicles must provide the list of persons with a South Carolina driver's license or other form of identification containing a photograph issued by the Department of Motor Vehicles at no cost to the commission. The commission may charge a reasonable fee for the provision of the list in order to recover associated costs of producing the list.
Findings
SECTION 9. The General Assembly finds that all the provisions contained in this act relate to one subject as required by Section 17, Article III of the South Carolina Constitution in that each provision relates directly to or in conjunction with other sections to the subject of election reform as stated in the title. The General
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Time effective
SECTION 10. Except for SECTION 4, the provisions of this act are effective upon approval by the Governor.
Approval and funding
SECTION 11. SECTION 4 takes effect upon preclearance approval by the United States Department of Justice or approval by a declaratory judgment issued by the United States District Court for the District of Columbia, whichever occurs first. However, the implementation of the procedures provided for in this SECTION is contingent upon the State Election Commission's receipt of funds necessary to implement these provisions. Until the provisions of this SECTION are fully funded and executed, implementation of the provisions of this SECTION shall not prohibit the State Election Commission from issuing voter registration cards by the methods allowed prior to the implementation of this SECTION.
Ratified the 17th day of May, 2011.
Approved the 18th day of May, 2011.
______
This web page was last updated on August 19, 2011 at 10:42 AM
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Supplemental Expert Report on South Carolina’s Voter Identification Law, Act R54
Orville Vernon Burton
Director, Clemson CyberInstitute
Professor of History and Computer Science
Clemson University
July 26, 2012 Case 1:12-cv-00203-CKK-BMK-JDB Document 157-6 Filed 08/08/12 Page 3 of 21
Table of Contents
Page
I. Introduction ...... 1
II. Key Pieces of New Evidence Demonstrating South Carolina’s Discriminatory Purpose ...... 2
A. The legislative histories of the Voter ID Law and its predecessor bill were characterized by procedural irregularities that suggest the presence of a discriminatory purpose...... 2
1. Passing a Voter ID Law was an Urgent, Top Priority for the South Carolina Legislature ...... 2
2. The Legislature Used a Rare Senate Procedure Twice to Advance Voter ID Legislation ...... 4
3. The House Circulated the Voter ID Bill’s Conference Report without Full Approval ...... 5
4. Certain Senators Cast Rare Votes for Cloture to End Debate in 2011...... 6
B. The Legislature repeatedly rejected a provision to expand early voting, an amendment that would have ameliorated the Law’s disparate impact...... 7
C. Key decision-makers were made aware of the disparate impact the Voter ID Law would have on African American voters, but made no effort to address this issue; instead, they showed an utter disregard for minority viewpoint and impact...... 11
D. No bill sponsors, election administrators or members of the testifying public could identify any verified instances of voter fraud that would be addressed by the Voter ID law, strongly suggesting that the stated reason for the Law is a pretext...... 14
III. Corrections to My Initial Report ...... 16
A. Correction to Page 24...... 16
B. Clarification to Pages 23 and 35 ...... 16
C. Correction to Page 35...... 17
i
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I. INTRODUCTION
In this case, Defendant-Intervenors asked me to form an opinion about whether the South
Carolina legislature passed Act R54 (as H.3003), the government-issued photo identification law that Governor Nikki Haley signed into law in 2011 (hereinafter, the “Voter ID Law,” “ID Law,” or the “Law”), with a racially discriminatory intent.
As detailed in my initial report, my review of the Arlington Heights factors1 and other relevant evidence led me to conclude that the Law was motivated by a discriminatory purpose.
Specifically, the goal of suppressing the African American vote played a substantial role in the legislature’s introduction of the Voter ID Law’s predecessor legislation in 2009 (the “Voter ID
Bill” or “H. 3418”) immediately following President Obama’s inauguration. That same discriminatory motivation was present in 2011 when the South Carolina Legislature introduced
— and ultimately passed — the current Voter ID Law.
Since submitting my initial report to the Plaintiffs on June 19, 2012, additional facts have become available to me. Specifically, South Carolina has located key pieces of legislative history — including recordings from the Senate Floor debate on the 2009 Voter ID Bill and from several Senate subcommittee and committee hearings, which have since been transcribed — that shed light on the Arlington Heights factors that I have considered. In addition, South Carolina
1 According to the United States Supreme Court, when evaluating whether a governmental act was motivated by a discriminatory purpose, one should consider a range of facts and circumstances. See Village of Arlington Heights v. Metropolitan Housing Corp., 429 U.S. 252, 265-68 (1977). In the Arlington Heights case, the Court identified four factors as relevant circumstantial evidence of discriminatory intent: (1) the historical background of the decision; (2) the views expressed by decision- makers on related issues; (3) the specific sequence of events leading to the decision (including whether there has been a departure from the usual practices or procedures of the decision-making body); and (4) the anticipated or foreseen effect of the change on minority citizens. Id. These factors are consistent with the inquiries a historian makes to draw conclusions about discriminatory purpose, and that I discuss fully in my initial report.
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has produced hundreds of new documents and counsel for Defendant-Intervenors have taken several additional depositions in the past weeks.
Together, this additional evidence provides further support for my ultimate conclusion:
The South Carolina legislature was motivated by an unlawful, racially discriminatory purpose in passing the Voter ID Law. Below, I highlight some of the most compelling pieces of new evidence, and explain how these facts advance my conclusions. Then, in Part III, supra, I provide some minor clarification of my initial report.
II. KEY PIECES OF NEW EVIDENCE DEMONSTRATING SOUTH CAROLINA’S DISCRIMINATORY PURPOSE
A. The legislative histories of the Voter ID Law and its predecessor bill were characterized by procedural irregularities that suggest the presence of a discriminatory purpose.
New evidence emphasizes some of the procedural irregularities in the passage of the
Voter ID Law noted in my initial report, such as the urgency and importance that the South
Carolina legislature attributed to passing a photo ID Law and the Senate’s reliance upon a rare form of the Special Order motion. Further discovery has unearthed some additional procedural irregularities during debate over the Voter ID Bill, including the legislature’s decision to circulate the H. 3418 conference committee report before the Senate had an opportunity to give meaningful input and all committee members had the opportunity to provide signatures. I briefly discuss these irregularities below.
1. Passing a Voter ID Law was an Urgent, Top Priority for the South Carolina Legislature
As I explained in my initial report, a Republican majority pushed forward the Voter ID
Law with an unusual urgency following the 2008 presidential election — a fact that new
2
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evidence repeatedly reinforces.2 During Senate Floor debates in 2010, for example, Senator
Floyd Nicholson, an African American Democrat from Greenwood, voiced his suspicions about the bill’s timing and motivation.3 As Senator Nicholson explained, prior to the 2008 presidential election, lawmakers focused on ways to address voter apathy. After the 2008 presidential election, however, South Carolina lawmakers suddenly claimed a pressing need to combat voter fraud — despite a total lack of credible evidence of such fraud presented on the Senate Floor.
Senator Nicholson further stated:
I know a lot of my constituents back home when I told them what we’re going to be debating this week, they were saying with the tough economic times, a lot of people out of work, we need to be creating jobs and everything, do you think this is an issue that we need to spend a lot of time on right now, especially after the 2008 election we had the highest turnout of voters to ever occur in the state. Why is this coming about at this time?4
Recent deposition testimony further illustrates this point. Wesley Donehue, a well- known political consultant who worked for the Senate Republican Caucus when the legislature considered voter ID legislation, testified that “this issue was pushed greater than any other issue that we have worked on” in roughly ten years of working with Republican lawmakers in the
State.5 Lt. Governor Glenn McConnell, an influential white Republican from Charleston who served as President Pro Tempore of the Senate when the Law was enacted, testified that he could not recall another bill being introduced in the House and sent to the Senate as quickly as the
Voter ID Law.6
2 See also Burton Initial Report at 36 (June 19, 2012). 3 SC_00161127-30 (South Carolina Senate Session, Jan. 27, 2010). 4 SC_00161129- 30 (South Carolina Senate Session, Jan. 27, 2010). 5 Donehue 6/20/12 Tr. at 34:25 – 35:1; see also id. at 29:4 – 29:19 (explaining that Republican party activists deemed voter ID their number one issue). 6 McConnell 7/17/12 Tr. at 238-39.
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2. The Legislature Used a Rare Senate Procedure Twice to Advance Voter ID Legislation
In my initial report, I also discussed the unusual use of a Special Order motion — a procedure for bringing a contested bill to the floor for prompt consideration — by a majority vote instead of the supermajority that is typically required.7 In 2010, and again in 2011, the Law twice failed to achieve supermajority approval to proceed from the full Senate. In both years, the legislation was ultimately advanced through a rarer, alternative method for achieving a Special
Order motion — obtaining special approval from the Rules Committee and then pushing the law forward through a majority vote on the Senate floor.
Senator John Land, a white Democrat from Clarendon, and Senator Larry Martin, a white
Republican from Pickens and chair of the Rules Committee in 2010, engaged in a heated discussion about this procedural irregularity in 2010.8 Senator Land referred to it as a “little trick move” and stated the “president pro tempore [Glenn McConnell] even said this is a little used approach, we don’t normally do this.”9 He added:
But we had to [use this device] this time because we needed to disenfranchise 178,000 people as quickly as we can because last November they turned out in droves and droves and droves and voted, and we got to stop that.10
Notably, on the Senate floor in 2010, then-Senator McConnell justified this rare procedural move by the importance of adding the early voting days that were part of the original bills.11 But in
2011, after again twice failing to achieve a Special Order motion by supermajority vote to advance the voter ID Law, Senate leadership used the same tactic.12
7 See also Burton Initial Report at 28, 35-36. 8 SC_00161283-86 (South Carolina Senate Session, Jan. 27, 2010). 9 Id. at SC_00161284. 10 Id. at SC_00161284-85. 11 SC_00160993 (South Carolina Senate Session, Jan. 26, 2010). 12 See McConnell 7/17/12 Tr. at 288:4-289:2.
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Deposition testimony further underscores the irregularity of this Special Order procedural move.13 After thirty years in the General Assembly, Lt. Governor McConnell could not name another instance when the legislature pushed a Special Order motion through the Rules
Committee after failing to achieve supermajority approval on the Senate Floor.14 Senator John
“Jake” Knotts, a white Republican from Lexington and the current chair of the Rules Committee, claimed that “some chairmen” use this device “a lot,” without providing any concrete instances of that being so.15 Senator Knotts also acknowledged that he had not relied upon this procedural tactic since chairing the Rules Committee.16
3. The House Circulated the Voter ID Bill’s Conference Report without Full Approval
New evidence shows that House members of the Voter ID Bill conference committee circulated a final conference committee report before the Senate had any meaningful opportunity for input.17 The House excluded some committee members from the deliberative process, such as Senator Gerald Malloy, an African American Democrat from Darlington. According to
Senator Malloy, “The Senate really never spoke…on this bill” because “the House signed the conference report before the next meeting started,” referring to the afternoon meeting where
Senate members of the committee were scheduled to voice their concerns about the Voter ID
Bill.18 As a result, Malloy refused to sign the committee report. This unusual occurrence jarred many members of the Senate; when Senator George “Chip” Campsen, a white Republican from
13 Id. at 363:11-12. 14 Id. at 245:17 – 247:11. 15 Knotts 7/17/12 Tr. at 43:22 – 44:10. 16 Id. 17 As explained on page 24 of my initial report, House representatives to the 2010 conference committee on H. 3418 included Alan Clemmons and Harry Cato, both white Republicans, and Harold Mitchell, an African American Democrat. Senate conference members were Chip Campsen, a white Republican, Gerald Malloy, an African American Democrat, and Phillip Shoopman, a white Republican. (Representative Clemmons and Senator Campsen were also members of the conference committee that considered H. 3003 one year later.) 18 SC_00161881-84 (South Carolina Senate Session, June 15, 2010).
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Charleston, reported that Malloy had not signed the report, the President Pro Tempore (then-
Senator McConnell) had to call the Senate to order twice, apparently due to chaos in the chamber.19
Moreover, Representative Harold Mitchell, an African American Democrat from
Spartanburg, did not sign the conference committee report either. Thus, the conference report was finalized with just two signatories from the Senate and two from the House — and meaning that the only signatories were the white Republicans on the committee, and that neither of the
African American Democrats signed the report.20 Subsequently, on the Senate floor, Senator
Malloy explained, “I realize [that two signatories from each chamber is all] that is required; but again, I submit that it was there only for political purposes to assist one of the members from the conference committee….The way that this one was done is not right. It’s just not right.”21
Senator Land added, “I’ve been [in the Senate] a long time. I can’t remember – I can’t remember another time where a conference committee report came back with one signature missing.”22
4. Certain Senators Cast Rare Votes for Cloture to End Debate in 2011
There is additional evidence of the extreme party pressure to pass the Voter ID Law. In
February 2011, certain members of the Senate voted for cloture to end a Senate filibuster and push forward the legislation, even though the Senate typically refuses to vote for cloture as a matter of principle.23 In general, the use of cloture in the South Carolina Senate is rare.24 In the
19 Id. at SC_00161821. 20 Id. at SC_00161897-98. 21 Id. at SC_00161898. 22 Id. at SC_00162101. 23 See Legislative History for H. 3003, 119th Reg. Sess. (S.C. 2011-2012), available at http://www.scstatehouse.gov/sess119_2011-2012/sj11/20110216.htm; McConnell 6/14/12 Tr. at 106-07. 24 Cleary 6/14/12 Tr. at 186; Burton Initial Report at 21.
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words of Lt. Governor McConnell, “my experience [in the Senate] is that people don't vote cloture on you and you don’t vote it on them.”25
B. The Legislature repeatedly rejected a provision to expand early voting, an amendment that would have ameliorated the Law’s disparate impact.
As I discussed in my initial report, lawmakers repeatedly and systemically rejected proposed amendments, including provisions allowing for early voting, that would have ameliorated the Law’s disparate burden on minorities.26 The decision to pass the Voter ID Law without early voting provisions is particularly significant. Early voting enjoyed widespread support from voters, local election officials, many lawmakers, and the State Election
Commission (“SEC”), and the record shows no legitimate, nondiscriminatory reason behind the
House Republican’s strong opposition to this reform.
Before the start of the 2009-2010 legislative session, there was strong interest in passing early voting legislation in both the Senate and the House.27 Moreover, Senate hearing testimony and floor debate underscored significant support for early voting as a way to boost turnout.28 For instance, before the Senate Judiciary Sub-Committee in 2009, Director of the Charleston County
Election Commission, Joseph Debney, testified that the phone lines in his office were flooded by calls from voters during the 2008 presidential election — both Democrats and Republicans — who supported early voting.29 At another 2009 Senate committee hearing, Marilyn Bowers, speaking on behalf of the South Carolina Association of Registration and Election Officials (and
25 McConnell 6/14/12 Tr. at 107. 26 See also Burton Initial Report at 37. 27 See Andino 7/17/12 Tr. at 286 (recalling several General Assembly members calling to express interest in early voting after 2008 election). 28 See, e.g., SC_00160855-68 (South Carolina Senate Judiciary Subcommittee, April 16, 2009); SC_00160995-96, SC00161002 (South Carolina Senate Session, Jan. 26, 2010); SC_00161823 (South Carolina Senate Session, June 15, 2010); SC_00162479-81 (South Carolina Senate Session, June 16, 2010). 29 S&CTR_000017 (Debney’s testimony to Senate Judiciary Sub-Committee on March 26, 2009); see also Debney 7/16/12 Tr. at 110-11.
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now of SEC), described the many benefits of early voting, including shorter lines at the polls, greater flexibility for voters and decreased administrative costs, and voiced election officials’ support for that reform.30 Indeed, in 2010, Senator Campsen, a proponent of voter ID legislation, argued on the Senate floor that early voting and voter ID are connected, because early voting would increase voter participation while voter ID would make elections more secure.31
That support persisted in the Senate into the next legislative session. As Senator John
Scott, an African American Democrat from Richmond, explained on the Senate floor in February
2011 (just before the Senate passed an amended Voting ID Law with early voting provisions), early voting is necessary “to expand this process so that those who live long distances, who want to participate in this process . . . can vote early. I think that’s a good thing for this bill.”32
Senator McConnell argued that early voting allows “the average South Carolinian that works an opportunity to go in on a Saturday . . . and vote without having to take time off from their job, or stand in a line.”33
Nevertheless, the Republican majority in the Senate ultimately yielded to political pressures and passed the so-called “clean” version of the Voter ID Law in 2011 — without expanding early voting.34 Notably, a majority of the Senate passed the Law even though several key Senators, including then-Senator McConnell and Senator Campsen, expressed concern that the Department of Justice would not pre-clear the Law without an early voting provision.35
30 See Bowers 7/19/12 Tr. at 40-42. 31 SC_00161125-26 (South Carolina Senate Session Jan. 27, 2010). 32 Tr. of Senate Floor Debate, Feb. 24, 2011, at 103. 33 Id. at 131. 34 Tr. of Senate Floor Debate, May 6, 2011, at 127, 143-44 (McConnell discussing intense “media campaign” directed toward Senate Republicans to vote for the “clean” voter ID bill). 35 See, e.g., Campsen 6/18/12 Tr. 137:12 – 137:25; McConnell 6/14/12 Tr. at 192:9 – 192:11; 204:10 – 204:15.
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In fact, Republican Party pressure to pass “clean” voter ID legislation was so strong it strained relationships between lawmakers. During the conference committee debate in 2011,
Representative Alan Clemmons, a white Republican from Horry County who was the Law’s lead sponsor, assured then-Senator McConnell that the House would handle early voting under a separate bill.36 From that exchange, McConnell assumed that the House would send an early voting bill to the Senate soon thereafter, but the House never did.37 At his deposition,
McConnell could not recall another time in his legislative career when the House promised to send a bill to the Senate but failed to do so.38 According to McConnell, “the House had set up a political front that it wanted a clean voter ID bill. And internally, what [was] going on over there, I can’t be sure.”39
New evidence, however, underscores a widespread perception, particularly salient among
House Republicans, that early voting facilitates the African American vote and, thus, helps the
Democratic Party — suggesting that Republican lawmakers actually objected to early voting because they did not want to promote early voting by minority voters. Patricia Calkins, who has extensive experience working at the polls in York County, testified that African American churches used busses to transport voters to the polls to cast in-person, absentee votes in 2008.40
According to Wesley Donehue, this trend concerned members of the State’s Republican Party, who worried that expanding early voting would “allow Democrats to do some things that
36 McConnell 7/17/12 Dep. Tr. at 260. 37 Id. 38 Id. 39 Id. at 262-63. 40 Calkins 7/16/12 Tr. at 57-60 (discussing specific incidents in 2008 where Democratic Party worked with African American churches to bus voters to polls to vote early).
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Democrats often get accused of doing and it would help them.”41 Asked to define “some things,”
Donehue explained:
I mean there are often movements within African American churches to — for absentee voting drives and to bus African Americans to the polls. And a lot of people believe that early voting would give the African American community a chance to do those things. And I believe that because it’s in writing. I mean, that’s just not a hidden belief here. That’s a very public belief here.42
Older deposition testimony further confirms this “very public belief” among white
Republican lawmakers. For instance:
Senator Raymond Cleary identified specific counties where, in 2008, “there were buses provided by the minority community for absentee ballots, for early voting absentee ballots.”43
Representative Clemmons acknowledged “[t]he perception is that the Democrats do bussing a lot more so than do Republicans.”44
Representative Phillip Lowe recalled a discussion he had with one African American individual on this topic: “He told me they would go into a certain area over there, meaning a project-type area, and that he was assisting them in picking people up and bringing them over to vote. So he was an African American. He was going to African American areas; but he was going to the projects, which would have included some white people, too, I’m sure.”45
Lowe also testified that “I just witnessed and was told by activists that they were driving to certain areas and picking up people and bringing them to the polls to vote. After they voted, if they had the sticker on that said, I voted, that they could — that was their entrance into the tent where liquor and beer and chicken bog and all was available to them.”46
41 Donehue 6/20/12 Tr. at 115. As discussed in my initial report and re-affirmed by McConnell’s recent deposition testimony, “most people [in the] Senate, both Democrat and Republican, know that the majority of minority voters vote Democrat.” McConnell 7/17/12 Tr. at 284. 42 Donehue 6/20/12 Tr. at 115-16. 43 Cleary 6/14/12 Tr. at 207. 44 Clemmons 6/11/12 Tr. at 206:11-14; see also Burton Initial Report at 25 (describing email exchange during which Clemmons responds, in part, “[w]e thought that we saw a great deal of bussed liberals and fraudulent early votes in the 2008 election, but with these kinds of early voting provisions it has the potential to be even worse!”). 45 Lowe 6/13/12 Tr. at 126:21-127:3. 46 Id. at 27:2-8.
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C. Key decision-makers were made aware of the disparate impact the Voter ID Law would have on African American voters, but made no effort to address this issue; instead, they showed an utter disregard for minority viewpoint and impact.
Lawmakers’ awareness of the anticipated or reasonably foreseen disparate impact of voter ID measures on minority citizens is a key factor in determining discriminatory intent consistent with Arlington Heights. In my initial report, I cited a recent study on South Carolina’s so-called “Corridor of Shame,” and appended my expert report in a 2003 Charleston County
Council case where I detailed the persisting socioeconomic disparities between white and
African American South Carolinians. These materials support my opinion that, because of these well-documented socioeconomic disparities, the burdens of voter ID legislation would inevitably have a disproportionate impact on the minority electorate.47 Since submitting my initial report, I have received and read other expert witness reports in this litigation, specifically those of Drs.
Andrew Martin, Theodore Arrington, and Charles Stewart III. All three discuss the disparities in socioeconomic data for black and white South Carolinians, and Dr. Arrington touches on the social science literature concerning the relationship between socioeconomic indicators and political involvement.
As discussed in my initial report, the evidence overwhelmingly shows that lawmakers foresaw, or reasonably should have foreseen, the disparate and discriminatory effects of the
Voter ID Law. Therefore, they knew, or should have known, that they were making voting more difficult for African American citizens. For example, the evidence demonstrates that the legislators’ debate on voter ID overlapped with their debates on redistricting. This is meaningful because legislators had before them documentation concerning the socioeconomic and political
47 TOBY MOORE & SARA LAWRENCE, CREATING GREATER OPPORTUNITY IN SOUTH CAROLINA’S I-95 CORRIDOR: A HUMAN NEEDS ASSESSMENT 39 n. 170 (2009); see also Burton Initial Report at App’x B (Report of Dr. Orville Vernon Burton for Moultrie v. Charleston County Council, No. 9-01 562 11, October 5, 2001).
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characteristics of various jurisdictions, state voter registration and turnout data disaggregated, and census data. Furthermore, opponents of the Law repeatedly emphasized these socioeconomic disparities during legislative debate and hearings.48
The record provides additional evidence that lawmakers were acutely aware of the disparate racial impact of voter ID laws generally, and of South Carolina’s proposed law particularly. For instance, on the Senate floor in 2010, several opposing lawmakers gave impassioned speeches about the State’s long history of discrimination against minority voters and their fear that photo ID was the most recent example of such discrimination. Specifically,
Senator Robert Ford, an African American Democrat from Charleston and a leader in the 1960s civil rights movement, spoke about racial disfranchisement in the South until the passage of the
Voting Rights Act in 1965 and the State’s general history of discrimination.49 He expressed concern that the Voter ID Bill would turn back the clock on African American voters.50 Senator
Ralph Anderson, an African American Democrat from Greenville, warned, “[t]he legislation has potential of suppressing the African American votes, along with other minorities and the aged people within our community . . . [The] legislation helps to legalize intimidation of our people.”51
Senator Michael Rose, a white Republican from Dorchester, and Senator Land discussed at length the data evidencing a disparate impact on minority voters.52 Land argued that the Law would impact a higher proportion of the African American community, thereby constituting “a greater disenfranchisement of the African American vote than the white vote.” Rose retorted that, because the white population is larger than the African American population, a larger
48 See, e.g., Burton Initial Report at 29, 32, 40. 49 SC_00160985-89 (South Carolina Senate Session, Jan. 26, 2010). 50 Id. 51 SC_00161251 (South Carolina Senate Session, Jan. 27, 2010). 52 Id. at SC_00161415-17.
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number of white individuals would be affected.53 As their debate continued, Land asked, “So you’re conceding the fact that there is going to be an impact on them [referring to African
American voters] and it’s going to be a disenfranchisement of their vote, and a watering down of their vote or taking their vote away or causing them to do more to vote than the other folks, right?”54 Rose responded, “Right,” thereby ending that portion of the debate.55
The next day, Senator Joel Lourie, a white Democrat from Richland, presented the data on the disproportionate impact the Law would have on minority voters on the Senate floor:
And then I’ve heard today and other days that this is not targeted at minority voters, but yet the statistics will tell you that’s exactly where it’s targeted when 25 percent of the registered voters in this state, the election committee list them as non-white. That’s how they say, white, non-white. Twenty-five percent of the registered voters are non-white. But yet close to 31 percent of the 178,000 are listed as non-white. There you can see how it disproportionately affects minority voters.56
Following Senator Lourie’s reference to this data, the President Pro Tempore ordered that the data on ID ownership that was compiled by Senate staff and the SEC be distributed to all
Senators.57 Even the Law’s main supporters, such as Senator Campsen, acknowledge that information about the Law’s disparate impact was well known.58
53 Id. 54 Id. at SC_00161417. 55 Id. 56 SC_00160172 (South Carolina Senate Session, Jan. 28, 2010). 57 See id. at SC_00160184-86. 58 See Campsen 6/18/12 Tr. at 97, 100 (recalling floor discussion on percentage of non-white persons lacking ID) & 178-180 (recalling concerns from African-American lawmakers and statements that Law would supress minority voting). In addition, during floor debate, Campsen admitted to reviewing county- by-county data of persons lacking identification. SC_00161168-70 (South Carolina Senate Session, Jan. 27, 2010).
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D. No bill sponsors, election administrators or members of the testifying public could identify any verified instances of voter fraud that would be addressed by the Voter ID law, strongly suggesting that the stated reason for the Law is a pretext.
There continues to be no evidence of actual impersonation fraud or any reasonable perceptions of widespread impersonation fraud, strongly suggesting that the stated reason for the
Law is a pretext.
Indeed, Senate debate on the Voter ID Bill contains some vague allegations of impersonation fraud, but no credible accounts. For instance, one Senator described an election day when he traveled from precinct to precinct and witnessed one van traveling to various polling places, full of voters. He suspected fraud, but admitted that no charges were brought.59
Of course, as another Senator explained, while there are vans that transport groups of people to different polling places, this provides no proof that the same people vote at multiple precincts.60
Similarly, during the April 16, 2009 Senate judiciary subcommittee hearing, Mr. Rusty
DePass, former State Election Commission Chairman and a well-known Republican political figure who made national news after joking that an escaped gorilla was one of Michelle Obama’s ancestors,61 was one of the very few who testified in favor of photo ID. Mr. DePass claimed to know of “at least six or eight very, very old people who were still on the books who were still voting [but] were found not to exist.” When pressed, however, he could not give any details of these alleged incidents, nor is there any evidence on the record to support Mr. DePass’ claims.62
Notably, at that same hearing, Kent Lesesne, an African American staff member from the South
Carolina Association of Counties, opposed the Voter ID Bill because, “again, as you’ve heard
59 SC_00160151-53, 55 (South Carolina Senate Session, Jan. 28, 2010). 60 SC_00160203-4 (South Carolina Senate Session, Jan. 28, 2010). 61 Helen Kennedy, GOP Activist DePass Apologizes After Joking on Facebook that Gorilla is Related to Michelle Obama, N.Y. DAILY NEWS, June 14, 2009, http://articles.nydailynews.com/2009-06- 14/news/17925944_1_gop-activist-south-carolina-republicans-facebook. 62 SC_00160848-50 (South Carolina Senate Judiciary Subcommittee, April 16, 2009).
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from a number of the testimony, [local election officials who] actually are doing this simply don’t see the necessity for this and; in fact, any good that might come out of [the Bill] we believe would be overset by the detriment in disenfranchising voters.”63
And indeed, during the 2010 Senate floor debates, Senator Nicholson credibly recounted his wife’s experience working for the SEC for four years. He explained that “there was never a complaint [of] voter fraud,” instead, there were problems with attempts to suppress the voting of low-income and minority residents.64 Senator Matthews commented, “I can just tell you in the testimony before the subcommittee, our own election commission said they have no record in recent history of anybody showing up to vote that was not who they say they were.”65
In short, as highlighted in my initial report and as repeatedly confirmed, there is no evidence of impersonation fraud.66 In my original report, I explained that if the Voter ID Law were a genuine attempt to combat potential voter fraud, it would apply to voting by mail, where incidents of fraud actually have occurred. But as Professor Martin reports—based on readily available public data—whites were approximately twice as likely as blacks to vote by mail in
2004 and 2008.67 That the legislature chose not to impose a photo ID requirement on the method of voting that poses a greater risk of fraud but that is disproportionately utilized by white voters is further evidence of the Law’s discriminatory purpose.
63 Id. at SC_00160867-68. 64 SC_00161357-58 (South Carolina Senate Session, Jan. 27, 2010). 65 SC_00161302 (South Carolina Senate Session, Jan. 27, 2010). 66 For new deposition testimony on this topic, see Campsen 6/18/12 Tr. at 65-66 (not aware of any credible allegations of voter impersonation in South Carolina); Debney 7/16/12 Tr. at 46 (never encountered instance of voter impersonation, including in years as Director of Charleston County Election Commission); Calkins 7/16/12 Tr. at 42-43 (never encountered instance of voter impersonation during many years as poll worker, nor has she heard of voter impersonation occurring anywhere else in South Carolina). 67 Expert Report of Andrew D. Martin, Ph.D at 9 (June 19, 2012).
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III. CORRECTIONS TO MY INITIAL REPORT
Below, I correct two minor mistakes from my initial report, and offer one clarification.
None of these issues undercut or otherwise affect my ultimate conclusions.
A. Correction to Page 24
On page 24 of my initial report, I mistakenly identified Senator Knotts as the Chair of the
Senate Rules Committee. In fact, Knotts did not become Chair of the Senate Rules Committee until this year.68 On June 15, 2010, Senator Larry Martin was the Committee Chair.69
B. Clarification to Pages 23 and 35
As I note in my initial report, the Legislative Black Caucus staged a walk-out during consideration of H. 3418, because the Republicans would not allow serious discussion of
Democrats’ proposed amendments. I wanted to clarify what occurred in response to the walk- out. The House voted to quickly advance the Bill to a final vote, foreclosing any further amendments. Representative G. Murrell Smith, a white Republican from Sumter and a co- sponsor of H. 3418, then made a motion to reconsider that vote (a “clinching” motion).70 This motion precluded the bill’s opponents from later making a clinching motion themselves, and ultimately prevented the debate that such a motion would have entailed, had it been allowed before the full General Assembly. That this motion was made immediately after the walk-out of the Legislative Black Caucus—which was itself in protest of limited debate on amendments to the bill—showed a lack of respect for the minority position that was, in itself, unusual.
68 Knotts 7/19/12 Tr. at 9:11 – 12. 69 Martin 6/13/12 Tr. at 21:10 – 14. 70 See Legislative History for H. 3418, 118th Reg. Sess. (S.C. 2009-2010), available at http://www.scstatehouse.gov/sess118_2009-2010/hj09/20090226.htm.
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C. Correction to Page 35
On page 35 of my initial report, I stated that there have been five instances of a Special
Order motion achieved by a majority vote in the last decade. This statement was inaccurate:
Subsequent research shows that this procedural tactic was used three additional times after it was last used to advance voter ID legislation; thus it has been used seven times in the last decade, including the two times a majority-vote Special Order motion was used to advance voter ID legislation.71 Notably, before this procedure was used to advance the 2009 Voter ID Bill and then to advance the 2011 Voter ID Law, the tactic had only been used twice — once on April 17,
2008 concerning a bill to increase the cigarette tax, H. 3567, and once on February 3, 2005 concerning a medical malpractice bill, S. 83.
71 Special Order motion through a majority vote have been achieved on the following dates (please note the correction to the dates of Special Order motions on the Voter ID Bill and Voter ID Law that were mistakenly reported as 2008 and 2010 on p. 35 of my initial report): May 12, 2011 on S. 1437 (concerning roll call voting) March 15, 2011 on H. 3375 (concerning tort reform) March 1, 2011 on S. 20 (concerning immigration) Feb. 10, 2011 on H. 3003 (the Voter ID Law) Jan. 26, 2010 on H. 3418 (the Voter ID Bill) April 17, 2008 on H. 3567 (concerning increasing cigarette taxes) Feb. 3, 2005 on S. 83 (concerning medical malpractice)
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Camoni, Sean August
From: Steve Potenza
Categories: Voting Rights - SC v. Holder
Garrard and Brad:
We are able to rearrange schedules on our end and can use this schedule (which is consistent with Garrard’s understanding outlined below):
June 29: Arrington; Quinn
July 2: Burton; Hood
July 3: Martin; Stewart
All depositions in Washington. Please confirm that this works.
Regards, Steve
From: Beeney, Garrard R. [mailto:[email protected]] Sent: Friday, June 22, 2012 4:26 PM To: 'Heard, Bradley (CRT)'; Michael McGinley; Meza, Catherine (CRT); Baldwin, Anna (CRT); Slade, Jared (CRT); Velandy, Erin (CRT); [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; McCombs, Theodore A.B.; Camoni, Sean August; [email protected]; [email protected]; [email protected]; [email protected]; [email protected] Cc: Christopher Bartolomucci; Paul Clement; Conor Dugan; Steve Potenza; Brian Field Subject: RE: South Carolina v. United States, No. 12-cv-203 (CKK-BMK-JDB)
Here is what I understand to be the current state of the schedule for expert depositions (all in Washington): June 29: Arrington and Quinn July 2: Hood
1 Case 1:12-cv-00203-CKK-BMK-JDB Document 157-7 Filed 08/08/12 Page 3 of 11 July 3: Stewart July 2 or 3 (at the option of SC): Burton and Martin Thanks, Garrard
From: Heard, Bradley (CRT) [mailto:[email protected]] Sent: Friday, June 22, 2012 4:08 PM To: Michael McGinley; Meza, Catherine (CRT); Baldwin, Anna (CRT); Slade, Jared (CRT); Velandy, Erin (CRT); [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; Beeney, Garrard R.; McCombs, Theodore A.B.; Camoni, Sean August; [email protected]; [email protected]; [email protected]; [email protected]; [email protected] Cc: Christopher Bartolomucci; Paul Clement; Conor Dugan; Steve Potenza; Brian Field Subject: RE: South Carolina v. United States, No. 12-cv-203 (CKK-BMK-JDB)
Michael:
It appears that Dr. Arrington is available on June 29, as noticed. Thanks.
‐‐ Bradley E. Heard Trial Attorney U.S. Department of Justice Civil Rights Division, Voting Section Phone: (202) 305‐4196
From: Heard, Bradley (CRT) Sent: Friday, June 22, 2012 3:09 PM To: Michael McGinley; Meza, Catherine (CRT); Baldwin, Anna (CRT); Slade, Jared (CRT); Velandy, Erin (CRT); '[email protected]' ([email protected]); '[email protected]' ([email protected]); '[email protected]' ([email protected]); '[email protected]' ([email protected]); '[email protected]' ([email protected]); '[email protected]' ([email protected]); [email protected]; '[email protected]' ([email protected]); [email protected]; [email protected]; [email protected]; '[email protected]' ([email protected]); '[email protected]' ([email protected]); '[email protected]' ([email protected]); Sean Camoni ([email protected]); Elisabeth Genn ([email protected]); Keecia Gaskins ([email protected]); Mimi Marziani ([email protected]); Wendy Weiser ([email protected]); Armand Derfner ([email protected]) Cc: Christopher Bartolomucci; Paul Clement; Conor Dugan; Steve Potenza; Brian Field Subject: RE: South Carolina v. United States, No. 12-cv-203 (CKK-BMK-JDB)
Dear Michael:
Dr. Stewart is unavailable for a deposition on June 28, due to other prior professional commitments. We can make him available in DC on July 3. Please confirm that date will work for you, and we’ll let Dr. Stewart know. Thanks.
Also, we are still checking on Dr. Arrington’s availability on June 29.
Regards, Brad
2 Case 1:12-cv-00203-CKK-BMK-JDB Document 157-7 Filed 08/08/12 Page 4 of 11 ‐‐ Bradley E. Heard Trial Attorney U.S. Department of Justice Civil Rights Division, Voting Section Phone: (202) 305‐4196
From: Michael McGinley [mailto:[email protected]] Sent: Thursday, June 21, 2012 9:08 PM To: Heard, Bradley (CRT); Meza, Catherine (CRT); Baldwin, Anna (CRT); Slade, Jared (CRT); Velandy, Erin (CRT); '[email protected]' ([email protected]); '[email protected]' ([email protected]); '[email protected]' ([email protected]); '[email protected]' ([email protected]); '[email protected]' ([email protected]); '[email protected]' ([email protected]); [email protected]; '[email protected]' ([email protected]); [email protected]; [email protected]; [email protected]; '[email protected]' ([email protected]); '[email protected]' ([email protected]); '[email protected]' ([email protected]); Sean Camoni ([email protected]); Elisabeth Genn ([email protected]); Keecia Gaskins ([email protected]); Mimi Marziani ([email protected]); Wendy Weiser ([email protected]); Armand Derfner ([email protected]) Cc: Christopher Bartolomucci; Paul Clement; Conor Dugan; Steve Potenza; Brian Field Subject: South Carolina v. United States, No. 12-cv-203 (CKK-BMK-JDB)
Counsel,
Please find attached South Carolina’s Notice of Expert Depositions for Orville Vernon Burton, Charles Stewart III, Theodore S. Arrington, Kevin M. Quinn, and Andrew D. Martin.
Please let us know if you require subpoenas for these individuals’ attendance at the depositions. If so, please advise whether you would accept service on their behalf.
Regards,
Michael H. McGinley Associate BANCROFT PLLC 1919 M Street, N.W., Suite 470 Washington, DC 20036 Tel: (202) 234‐0090
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Gosewehr, Kaitlyn A.
From: Beeney, Garrard R. Sent: Sunday, July 08, 2012 10:49 AM To: 'Steve Potenza'; Bradley E. Heard ([email protected]); Baldwin, Anna (CRT); Christopher Bartolomucci Subject: RE: Intervenors' experts' depositions
Thanks Steve: August 6 will work for Intervenors if you agree to serve any rebuttal report Dr. Hood may provide no later than Friday August 3. If that does not work for you, please provide other dates for Dr. Hood during August 8‐10. Thanks
From: Steve Potenza [mailto:[email protected]] Sent: Friday, July 06, 2012 1:51 PM To: Beeney, Garrard R.; Bradley E. Heard ([email protected]); Baldwin, Anna (CRT); Christopher Bartolomucci Subject: RE: Intervenors' experts' depositions
Garrard: Prof. Hood is not available for deposition on August 7. But he is available on August 6.
Regards, Steve
From: Beeney, Garrard R. [mailto:[email protected]] Sent: Friday, July 06, 2012 12:28 PM To: Beeney, Garrard R.; Bradley E. Heard ([email protected]); Baldwin, Anna (CRT); Christopher Bartolomucci; Steve Potenza Subject: RE: Intervenors' experts' depositions
Confirming our request for Dr. Hood on August 7th. We would appreciate a response from the State to the e‐mail below as soon as possible. Thanks, Garrard
From: Beeney, Garrard R. Sent: Wednesday, July 04, 2012 10:57 AM To: Bradley E. Heard ([email protected]); Baldwin, Anna (CRT); Christopher Bartolomucci ([email protected]); Steve Potenza Subject: Intervenors' experts' depositions
Counsel: we wanted to let you know that two of our three experts have very little flexibility in their schedule so that you can plan well ahead for their depositions. Professor Burton is not available the week of August 6. We do not anticipate that he will submit a rebuttal report and ask that his deposition occur on August 2. We do anticipate that he will submit a supplemental initial report on July 28. We will let you know no later than July 29 If our plan for Professor Burton to not submit a rebuttal report changes as a result of any supplemental report that Dr. Hood may submit on July 28. Otherwise, we will plan for a deposition on August 2 . If Professor Burton does submit a rebuttal report we may have to seek the Court’s approval to have his deposition the week of August 13. Professor Martin is only available commencing at 11:00 AM on August 10.
1 Case 1:12-cv-00203-CKK-BMK-JDB Document 157-7 Filed 08/08/12 Page 6 of 11 Professor Quinn is available at your convenience the week of August 6, but ask that you select a date as soon as possible so we can fix schedules. We will confirm tomorrow, but would like to depose Dr. Hood on August 7. I hope you are all enjoying the 4th holiday. Best, Garrard
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2 Case 1:12-cv-00203-CKK-BMK-JDB Document 157-7 Filed 08/08/12 Page 7 of 11
Dvorkis, Taly
From: Beeney, Garrard R. Sent: Thursday, July 12, 2012 12:48 PM To: Christopher Bartolomucci; Heard, Bradley (CRT); Steve Potenza; Conor Dugan; [email protected]; Brian Field; Michael McGinley Cc: Steciuk, Peter A.; Camoni, Sean August; Dvorkis, Taly; McCombs, Theodore A.B.; Baldwin, Anna (CRT); Slade, Jared (CRT); Meza, Catherine (CRT); Velandy, Erin (CRT); Dellheim, Richard (CRT) Subject: RE: SC v. US - Deposition Stipulation
Chris: this works for Intervenors, thanks. So as I understand it we have a deal as follows: July 26 Burton Supplemental Report August 2 Burton Deposition August 3 Hood Rebuttal Report August 6 Hood deposition August 7 Quinn Deposition August 9 Stewart Deposition August 10 Martin Deposition August 10 Arrington Deposition
I suggest all depositions in Washington, D.C. at 10 AM in the office of the deposing counsel (happy to do anything on these issues that others may prefer).
Thanks
From: Christopher Bartolomucci [mailto:[email protected]] Sent: Wednesday, July 11, 2012 5:35 PM To: Beeney, Garrard R.; Heard, Bradley (CRT); Steve Potenza; Conor Dugan; [email protected]; Brian Field; Michael McGinley Cc: Steciuk, Peter A.; Camoni, Sean August; Dvorkis, Taly; McCombs, Theodore A.B.; Baldwin, Anna (CRT); Slade, Jared (CRT); Meza, Catherine (CRT); Velandy, Erin (CRT); Dellheim, Richard (CRT) Subject: RE: SC v. US - Deposition Stipulation
Garrard,
I responded yesterday about Burton and asked why he is not available at all during the week that your own proposed schedule contemplated for expert depositions. Thank you for letting us know. We can try accommodate Dr. Burton’s schedule and depose him on August 2 if you will agree that he will serve any supplemental report by Thursday, July 26, instead of the Saturday, July 28 deadline. If so, we can similarly agree to serve any rebuttal report by Dr. Hood on Friday, August 3, so you can depose him on Monday, August 6.
Assuming that is acceptable for Burton and Hood, we can depose Martin on Friday, August 10, at 10 a.m., and will depose Quinn on Tuesday, August 7, at 10:00 a.m.
Please let us know.
Thanks,
1 Case 1:12-cv-00203-CKK-BMK-JDB Document 157-7 Filed 08/08/12 Page 8 of 11 Chris
From: Beeney, Garrard R. [mailto:[email protected]] Sent: Wednesday, July 11, 2012 5:13 PM To: Christopher Bartolomucci; Heard, Bradley (CRT); Steve Potenza; Conor Dugan; [email protected]; Brian Field; Michael McGinley Cc: Steciuk, Peter A.; Camoni, Sean August; Dvorkis, Taly; McCombs, Theodore A.B.; Baldwin, Anna (CRT); Slade, Jared (CRT); Meza, Catherine (CRT); Velandy, Erin (CRT); Dellheim, Richard (CRT) Subject: RE: SC v. US - Deposition Stipulation
Chris: while we’re getting all this settled, I gather you and The DOJ have confirmed Dr. Stewart for August 9 and Dr. Arrington for August 10. I want to ask for the third time (see e‐mails of July 4 and July 9) about other experts. Dr. Burton has long standing plans to care for his grandchildren the week of August 6 –10; hence my offer regarding him. I also have made proposals for Dr Hood and for Professor Martin and Professor Quinn on two prior occasions. Can I get a response ? Thanks, Garrard
From: Christopher Bartolomucci [mailto:[email protected]] Sent: Wednesday, July 11, 2012 4:59 PM To: Heard, Bradley (CRT); Beeney, Garrard R.; Steve Potenza; Conor Dugan; [email protected]; Brian Field; Michael McGinley Cc: Steciuk, Peter A.; Camoni, Sean August; Dvorkis, Taly; McCombs, Theodore A.B.; Baldwin, Anna (CRT); Slade, Jared (CRT); Meza, Catherine (CRT); Velandy, Erin (CRT); Dellheim, Richard (CRT) Subject: RE: SC v. US - Deposition Stipulation
We are fine with a limit of 4 hours or time remaining for re‐depositions.
From: Heard, Bradley (CRT) [mailto:[email protected]] Sent: Wednesday, July 11, 2012 4:55 PM To: Beeney, Garrard R.; Christopher Bartolomucci; Steve Potenza; Conor Dugan; [email protected]; Brian Field; Michael McGinley Cc: Steciuk, Peter A.; Camoni, Sean August; Dvorkis, Taly; McCombs, Theodore A.B.; Baldwin, Anna (CRT); Slade, Jared (CRT); Meza, Catherine (CRT); Velandy, Erin (CRT); Dellheim, Richard (CRT) Subject: RE: SC v. US - Deposition Stipulation
Hi Chris –
Just following up with you again on our email from yesterday morning. If we could get a response from you on this sometime today, we’d appreciate it. Thanks.
‐‐ Bradley E. Heard Trial Attorney U.S. Department of Justice Civil Rights Division, Voting Section Phone: (202) 305‐4196
From: Heard, Bradley (CRT) Sent: Tuesday, July 10, 2012 10:25 AM To: Beeney, Garrard R.; 'Christopher Bartolomucci'; Steve Potenza; Conor Dugan; [email protected]; Brian Field; Michael McGinley Cc: Steciuk, Peter A.; Camoni, Sean August; Dvorkis, Taly; McCombs, Theodore A.B.; Baldwin, Anna (CRT); Slade, Jared (CRT); Meza, Catherine (CRT); Velandy, Erin (CRT); Dellheim, Richard (CRT) Subject: RE: SC v. US - Deposition Stipulation 2 Case 1:12-cv-00203-CKK-BMK-JDB Document 157-7 Filed 08/08/12 Page 9 of 11
Chris,
In addition to the issues Garrard notes, given the large volume of the new material produced, it’s quite likely that the scope of examination of previously deposed witnesses will include topics previously covered with some deponents. Had the State produced all the relevant and responsive information prior to depositions, this might have been avoidable, but that’s just not where we are at this point. As Garrard indicated, the Court did not limit the scope of discovery during this extended period, nor did any party request such a limitation. Thus, what we were trying to do was come to a common understanding of the time limits governing the continued depositions, so that we’re not arguing those issues next week in Columbia. I trust you can agree that having clarity on this issue prior to commencing another round of depositions is preferable for all concerned. To that end, can we at least agree to the first part of the originally proposed stipulation (“Depositions of any witnesses previously deposed shall be permitted, but shall be limited to 4 hours, or the time remaining on the original 7‐hour deposition, whichever is greater. )? And if you’re not agreeable to that, what is your proposal as to how we should handle timing on the continued depositions?
‐‐ Bradley E. Heard Trial Attorney U.S. Department of Justice Civil Rights Division, Voting Section Phone: (202) 305‐4196
From: Beeney, Garrard R. [mailto:[email protected]] Sent: Monday, July 09, 2012 12:53 PM To: 'Christopher Bartolomucci'; Heard, Bradley (CRT); Steve Potenza; Conor Dugan; [email protected]; Brian Field; Michael McGinley Cc: Steciuk, Peter A.; Camoni, Sean August; Dvorkis, Taly; McCombs, Theodore A.B.; Baldwin, Anna (CRT); Slade, Jared (CRT); Meza, Catherine (CRT); Velandy, Erin (CRT); Dellheim, Richard (CRT) Subject: RE: SC v. US - Deposition Stipulation
Chris: Intervenors can’t agree to part (b). Among other reasons, we don’t see any such limitation in the modified scheduling order and the State has noticed depositions of people it could have deposed during the earlier period . Thus, limiting only continued depositions to newly produced material seems largely to disadvantage one side. Thanks, Garrard
From: Christopher Bartolomucci [mailto:[email protected]] Sent: Monday, July 09, 2012 12:22 PM To: Heard, Bradley (CRT); Steve Potenza; Conor Dugan; [email protected]; Brian Field; Michael McGinley Cc: Beeney, Garrard R.; Steciuk, Peter A.; Camoni, Sean August; Dvorkis, Taly; McCombs, Theodore A.B.; Baldwin, Anna (CRT); Slade, Jared (CRT); Meza, Catherine (CRT); Velandy, Erin (CRT); Dellheim, Richard (CRT) Subject: RE: SC v. US - Deposition Stipulation
Brad,
South Carolina is amenable to your proposed stipulation that “depositions of previously deposed witnesses shall be permitted, but shall be limited to 4 hours, or the time remaining on the original 7‐hour deposition, whichever is greater,” so long as the examination of previously deposed witnesses is limited to information disclosed in the transcripts or other materials produced since the earlier deposition.
With respect to nonparties, we do not believe that the parties should by stipulation alter the rules governing nonparty witnesses.
3 Case 1:12-cv-00203-CKK-BMK-JDB Document 157-7 Filed 08/08/12 Page 10 of 11
Our suggested stipulation therefore is as follows:
“Depositions of any witnesses previously deposed shall be permitted, but shall be (a) limited to 4 hours, or the time remaining on the original 7‐hour deposition, whichever is greater; and (b) be limited in scope to examination of the witness concerning information disclosed in transcripts or other materials produced after the original deposition.”
Please let us know whether all Defendants are amendable to this stipulation.
Many thanks,
Chris
From: Heard, Bradley (CRT) [mailto:[email protected]] Sent: Thursday, July 05, 2012 12:00 PM To: Christopher Bartolomucci; Steve Potenza; Conor Dugan; [email protected] Cc: Beeney, Garrard R.; Steciuk, Peter A.; Camoni, Sean August; Dvorkis, Taly; Theodore McCombs; Baldwin, Anna (CRT); Slade, Jared (CRT); Meza, Catherine (CRT); Velandy, Erin (CRT); Dellheim, Richard (CRT) Subject: SC v. US - Deposition Stipulation
Dear Chris:
Since the Court didn’t put it in the Third Revised Scheduling Order, I just wanted to clarify with you whether the State was amenable to the following conditions, which the United States and Defendant‐Intervenors suggested should govern parties previously deposed:
Depositions of any witnesses previously deposed shall be permitted, but shall be limited to 4 hours, or the time remaining on the original 7‐hour deposition, whichever is greater. Any nonparty witness subpoena for testimony only must be served at least three business days in advance of any deposition. Any nonparty witness subpoena for documents (in addition to or in lieu of testimony) must be served at least five business days in advance of the return date.
Please let us know. Thanks.
‐‐ Bradley E. Heard Trial Attorney U.S. Department of Justice Civil Rights Division, Voting Section Room 7200–NWB 950 Pennsylvania Avenue, NW Washington, DC 20530 Phone: (202) 305‐4196 Fax: (202) 307‐3961 www.justice.gov/crt/voting/
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