Case 1:12-cv CKK-BMK-JDB Document 280 Filed 09/14/12 Page 1 of 42 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Transcription

1 Case 1:12-cv CKK-BMK-JDB Document 280 Filed 09/14/12 Page 1 of 42 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA STATE OF SOUTH CAROLINA, v. Plaintiff, UNITED STATES OF AMERICA and ERIC H. HOLDER, JR., in his official capacity as Attorney General, and, Defendants, JAMES DUBOSE, JUNIOR GLOVER, FAMILY UNIT, INC., BRENDA C. WILLIAMS, M.D., AMANDA WOLF, DELORES FREELON, NAOMI GORDON, JOSEPH RILEY, RAYMOND RUTHERFORD, and THE SOUTH CAROLINA PROGRESSIVE NETWORK, Case No. 1:12-cv-203 (CKK, BMK, JDB) and, Defendant- Intervenors, LEAGUE OF WOMEN VOTERS OF SOUTH CAROLINA and CRAIG DEBOSE, and, Defendant- Intervenors, SOUTH CAROLINA STATE CONFERENCE OF THE NAACP and KENYDA BAILEY, Defendant- Intervenors. DEFENDANT-INTERVENORS RESPONSE TO SOUTH CAROLINA S PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW

2 Case 1:12-cv CKK-BMK-JDB Document 280 Filed 09/14/12 Page 2 of 42 TABLE OF CONTENTS Page RESPONSE TO SOUTH CAROLINA S PROPOSED FINDINGS OF FACT...1 RESPONSE TO SOUTH CAROLINA S PROPOSED CONCLUSIONS OF LAW ii -

3 Case 1:12-cv CKK-BMK-JDB Document 280 Filed 09/14/12 Page 3 of 42 TABLE OF AUTHORITIES Page(s) CASES Anderson v. South Carolina Election Commission, 397 S.C. 551 (S.C. 2012)...12 Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977) Beaufort County v. South Carolina State Election Commission, 395 S.C. 366 (2011)...12 Crawford v. Marion County Election Board, 553 U.S. 181 (2008)...4, 22, 24 Farrakhan v. Gregoire, 623 F.3d 990 (9th Cir. 2010)...29 Florida v. United States, et al., No (D.D.C. Aug. 16, 2012) Gonzalez v. Arizona, 677 F.3d 383 (9th Cir. 2012)...29 LaRoque v. Holder, 831 F. Supp. 2d 183 (D.D.C. 2011)...30 Milwaukee Branch of the National Association for the Advancement of Colored People v. Walker, No. 11-cv-5492 (Cir. Ct. Wisc. July 17, 2012)...30 Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256 (1979)...21, 23 City of Richmond v. United States, 422 U.S. 358 (1975)...24 Shelby County v. Holder, 679 F.3d 848 (2012) State of New York v. United States, 874 F. Supp. 394, 401 (D.D.C. 1994)...22, 29 Texas v. Holder, No (D.D.C. Aug. 30, 2012) iii -

4 Case 1:12-cv CKK-BMK-JDB Document 280 Filed 09/14/12 Page 4 of 42 Texas v. United States, 831 F. Supp. 2d 244 (D.D.C. 2011)...28 Texas v. United States, No (D.D.C. Aug. 28, 2012)...29 Weinschenk v. Missouri, 203 S.W.3d 201 (Mo. 2006)...30 STATUTES AND LEGISLATIVE HISTORY 42 U.S.C (Help America Vote Act)...2, 8, U.S.C Ind. Ann , 4 La. Rev. Stat. Ann. 18:562 (2012)...1 S.C. Act 510 (1984)...1 S.C. Ann S.C. Ann S.C. Ann S.C. Ann S.C. Ann S.C. Ann S.C. Ann S.C. Ann (1976)...1 S.C. Ann S.C. Ann S.C. Ann S.C. Ann S.C. Ann iv -

5 Case 1:12-cv CKK-BMK-JDB Document 280 Filed 09/14/12 Page 5 of 42 S.C. Const. art. I, S.C. Const. art. III, S.C. Const. art II, 4 (1895) v -

6 Case 1:12-cv CKK-BMK-JDB Document 280 Filed 09/14/12 Page 6 of 42 TABLE OF ABBREVIATIONS 2006 VRA Act Fannie Lou Hamer, Rosa Parks & Corretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006 A. Martin Initial Report of Dr. Andrew D. Martin, expert witness for Defendant-Intervenors (June 19, 2012) AA African-American AG Attorney General Am. Amendment Anderson Tr. Deposition of Heather Anderson, Staff Attorney to Senate Judiciary Committee Arrington Initial Report of Dr. Theodore S. Arrington, expert witness for the United States (June 19, 2012) Arrington Supp. Supplemental Report of Dr. Theodore S. Arrington (July 28, 2012) Bailey Tr. Deposition of Kenyda Bailey, Intervenor Bursey Tr. Deposition of Brett Bursey, Executive Director of Intervenor South Carolina Progressive Network Burton Initial Report of Dr. Orville Vernon Burton, expert witness for Defendant-Intervenors (June 19, 2012) Burton Supp. Supplemental Report of Dr. Orville Vernon Burton (July 26, 2012) Calkins Tr. Deposition of Dr. Patricia Calkins, former York County poll manager Cleary Tr. Deposition of Sen. Ray Cleary, member of Senate Judiciary Sub- Committee on Election Law during H.3418 and H.3003 s legislative consideration Debney Tr. Deposition of Joseph Debney, Executive Director of Charleston County Board of Elections and Voter Registration Dennis Tr. Deposition of Patrick Dennis, Staff Attorney for House Judiciary Committee DI CL Defendant-Intervenors Proposed Conclusions of Law D.I. Ex. Defendant-Intervenors Exhibit DI FF Defendant-Intervenors Proposed Findings of Fact DL Driver s license DMV South Carolina Department of Motor Vehicles DMV ID The non-driver s license photo ID issued by the DMV - vi -

7 Case 1:12-cv CKK-BMK-JDB Document 280 Filed 09/14/12 Page 7 of 42 DOB Date of birth DOJ U.S. Department of Justice Donehue Tr. Deposition of John Wesley Donehue, former Senate Republican Caucus Director and political consultant FOIA Freedom of Information Act Glover Tr. Deposition of Junior Glover, Intervenor H.3003 House Bill 3003, enacted as Act R54 H.3418 House Bill 3418, predecessor bill to H.3003 HAVA Help America Vote Act, 42 U.S.C et seq. Hutto Written Written Direct Testimony of Sen. C. Bradley Hutto, ECF No (August 21, 2012) ID Identification JA Joint Appendix JA-DI Defendant-Intervenors Supplement to the Joint Appendix JA-SC South Carolina s Supplement to the Joint Appendix JA-US United States Supplement to the Joint Appendix James Tr. Deposition of Dwight C. James, Sr., Executive Director of Intervenor SC NAACP K. Rutherford Tr. Deposition of Karen Rutherford, Benedict College Knotts Tr. Deposition of Sen. Jake Knotts, Chair of Senate Rules Commitee L. Martin Tr. Deposition of Sen. Larry A. Martin, Chair of Senate Judiciary Sub-Committee on Election Law during H.3003 s legislative consideration PB Provisional ballot Pearson Tr. Deposition of Tim Pearson, Chief-of-Staff to SC Gov. Nikki Haley PM Poll manager Quinn Initial Report of Dr. Kevin J. Quinn, expert witness for Defendant- Intervenors (June 18, 2012) Quinn Written Written Direct Testimony of Dr. Kevin J. Quinn, ECF No (August 21, 2012) R. Rutherford Tr. Deposition of Raymond Rutherford, Intervenor R54 Act R54 Required ID The five forms of photo ID accepted at the polls under Act R54 RI Reasonable impediment - vii -

8 Case 1:12-cv CKK-BMK-JDB Document 280 Filed 09/14/12 Page 8 of 42 Riley Tr. Deposition of Joseph Riley, Intervenor SC South Carolina SC CL South Carolina s Proposed Conclusions of Law S.C. Ex. South Carolina s Exhibit SC FF South Carolina s Proposed Findings of Fact SC NAACP South Carolina State Conference of the National Association for the Advancement of Colored People SCARE South Carolina Association of Registration and Election Officials SCLWV League of Women Voters of South Carolina Scott Written Written Direct Testimony of Sen. John L. Scott, Jr. ECF No (August 21, 2012) SCPN South Carolina Progressive Network SEC State Election Commission Sec. of State South Carolina Secretary of State SES Socioeconomic status Stewart Initial Report of Dr. Charles Stewart III, expert witness for the United States (June 9, 2012) Stewart Reb. Rebuttal Report of Dr. Charles Stewart III (August 6, 2012) UOCAVA Uniformed and Overseas Citizens Absentee Voting Act, 42 U.S.C U.S. United States US CL United States Proposed Conclusions of Law U.S. Ex. United States Exhibit US FF United States Proposed Findings of Fact US Response United States Response to South Carolina s Proposed Findings of Fact and Conclusions of Law (filed Sept. 14, 2012) VE Voter education VEP Voter education plan VR Voter registration VRA Voting Rights Act VREMS South Carolina Voter Registration and Election Management System Whitmire Tr. Deposition of Chris Whitmire, SEC Director of Public Information and Training - viii -

9 Case 1:12-cv CKK-BMK-JDB Document 280 Filed 09/14/12 Page 9 of 42 Wolf Tr. Zia Written Deposition of Amanda Wolf, Intervenor Written Direct Testimony of Barbara Zia, Co-President of Intervenor South Carolina League of Women Voters ECF No (August 21, 2012) - ix -

10 Case 1:12-cv CKK-BMK-JDB Document 280 Filed 09/14/12 Page 10 of 42 RESPONSE TO SOUTH CAROLINA S PROPOSED FINDINGS OF FACT 1. Opposed. SC law did not allow DMV-issued photo IDs as an alternative form of voter identification until S.C. Ann (1976), as amended by Act 510 (1984). 1 The non-photo VR card had been created by the SC Constitution in S.C. Const. art II, 4. R54 would render the non-photo VR card insufficient for the first time in 60 years; the last time SC required anything else to vote, it was a poll tax receipt. (JA 1550 (Burton 12).) 2. Opposed in part. The evidence shows that R54 s stated purposes are a pretext for a racially discriminatory purpose. (DI FF ) 3. Unopposed. R54 also requires, inter alia, that the PM verify the voter s face and poll-list signature against the photo and signature on the voter s ID. (R54, 5(B).) If the signatures do not match, the PM may require additional Required ID and refuse to allow the elector to vote except by PB. (Id.; JA-DI 768 (Whitmire Tr. 163:7-18).) 4-8. Unopposed. 9. Opposed in part. Plaintiff s Exhibit 138 fails to capture the wide variance among photo voter ID and other voter ID laws, including those that (1) accept substantially broader forms of ID, e.g., Ind. Ann ; (2) have broad and well-defined catch-all exceptions, e.g., La. Rev. Stat. Ann. 18:562 (2012) (allowing voters without ID to cast regular ballot by stating DOB). As Rep. Waters s committee report states, 2 Whether a state s [ID] requirement is permissible... depends on the form of [ID] required and the way that requirement is applied. (JA-SC 407 (S.C. Ex. 48).) 1 2 Available at There is no record evidence that R54 s proponents considered the Waters committee s report.

11 Case 1:12-cv CKK-BMK-JDB Document 280 Filed 09/14/12 Page 11 of Unopposed. HAVA requires proof of identity for certain first-time voters and, like the State s benchmark law, allows for both photo ID and non-photo ID. 42 U.S.C (b). 11. Opposed in part. The Carter-Baker Report also cautioned that photo voter ID laws may present a barrier to voting, particularly by traditionally marginalized groups, such as the poor and minorities. (JA-SC 0215 (S.C. Ex. 3).) The Report s recommendations were premised upon a national ID card that does not currently exist, and full implementation of a photo ID requirement held in abeyance for two federal election cycles after enactment. (JA-SC 0214; see also 8/27/12 Tr. 159:2-15, 160:8-161:4 (Sen. Campsen).) 12. Opposed. States did not begin to enact voter ID laws circa SC has had a voter ID law since 1895, and has accepted photo IDs since (Supra 1.) The vast majority of restrictive photo voter ID laws that accept only limited forms of government-issued photo ID were passed in the last four years. (See S.C. Ex. 198 (State s Voter ID Timeline).) 13. Opposed in part. Rep. Cobb-Hunter s bill would have required an individual who delivers and/or receives absentee ballots on behalf of a voter, not the voter herself, to show photo ID. Her bill was very, very different from R54, not least in that it addressed a documented ballot security issue. (8/30/12 Tr. at 289:11-19; see also JA-SC (Bursey Tr. 44:10-45:5).) 14. Opposed. The only constituents Rep. Harrell remembered speaking with about voter ID legislation were one local party activist and people mentioning [voter ID] to me at the grocery store. (8/28/12 Tr. at 57:13-24.) Interest in a photo voter ID law came predominantly from political activists such as Ed Koziol and Lanneau Siegling. (DI FF 37, 38, 45; JA-DI (Donehue Tr. 219:14-221:20); see also JA-DI 586 (Pearson Tr. 50:7-16); 8/28/12 Tr. at 221:11-222:17 (Rep. Clemmons) (in entire 3 year process, only 8 individuals, most of them Republican party officials, testified in favor of photo voter ID law).) Many voters were, - 2 -

12 Case 1:12-cv CKK-BMK-JDB Document 280 Filed 09/14/12 Page 12 of 42 in fact, against such a law. (See, e.g., 8/27/12 Tr. 183:4-23, 221:21-7 (Rep. Clemmons); JA- DI 1973, , (D.I. Ex. 29); JA , , (D.I. Ex. 27 & 28).) 15. Opposed in part. Dr. Stewart s survey asked whether voters favored a requirement to show government-issued ID, stated generically, not whether they favored R54. (8/30/12 Tr. at 174:11-20 (Dr. Stewart).) 16. Opposed. Not one of these cited statements is a credible report of voter fraud that R54 could have prevented. (8/27/12 Tr. at 114:2-5, 115:10-16 (Sen. Campsen); id. at 245:25-246:3, 246:12-14, 246:23-247:16 (Rep. Clemmons).) 16A. Rep. Sellers s one-word statement does not evince specific knowledge of impersonation fraud, but rather his general belief, and is inadmissible hearsay, Fed. R. Evid. 802, 803(3). (JA (D.I. Ex. 153); see also 8/27/12 Tr. at 244:9-245:3 (Rep. Clemmons).) 16B. The State s reported instances of voter fraud demonstrate that SC already has robust tools to prevent voter fraud and promote electoral confidence. (8/27/12 Tr. at 163:2-168:16 (Sen. Campsen); JA 1425 (Arrington 88); JA-DI 452 (Knotts Tr. 54:14-25).) JA-DI (Debney Tr. 36:3-8, 48:1-52:13); JA-DI (Calkins Tr. 40:20-41:4, 43:6-47:4); JA-SC 1243 (Bursey Tr. 39:13-40:10); 8/29/12 Tr. at 98:6-24 (Bowers).) In concluding the nonphoto VR card was inadequate, Sen. Campsen apparently did not know the card includes identifying information making impersonation difficult. (8/27/12 Tr. at 164:22-165:14.) 17. Opposed. The State has not presented evidence of strong public support for R54, or any history of voter fraud that R54 could address. (Supra 9-16.) 17A. Although certain SC legislators introduced photo voter ID legislation prior to the 2008 election, the first concerted, systematic push for such legislation in SC came after that election. (8/30/12 Tr. at 291:8-15 (Rep. Cobb-Hunter).) - 3 -

13 Case 1:12-cv CKK-BMK-JDB Document 280 Filed 09/14/12 Page 13 of 42 17B. Indeed, Sen. Campsen s post-crawford bill looks nothing like the bill that became R54. The Senator s bill was instead a comprehensive technical corrections bill that included provisions for early voting, 6-8 hour PM shifts, partisan parity among PMs none of which became law. (8/27/12 Tr. at 31:3-23, 33:13-25 (Sen. Campsen); JA 1043 (D.I. Ex. 49.).) 18. Opposed. The bills introduced in SC bear virtually no resemblance to those of Indiana and Georgia. (8/27/12 Tr. at 158:6-10 (Sen. Campsen); 8/29/12 Tr. at 247:9-250:21 (Dr. Hood); JA-DI (D.I. Ex. 494).) See also Ind. Ann Opposed in part. Speaker Harrell served as chief sponsor at the invitation of Rep. Alan Clemmons, the author of H (8/27/12 Tr. at 201:4-7 (Rep. Clemmons); JA-DI (Cleary Tr. 108:15-17, 108:23-109:1).) 20. Opposed in part. The House Judiciary Committee did not insert the PB measure described in SC FF 20; the measure was present in the legislation as introduced. (JA 493 (D.I. Ex. 10).) 21. Opposed in part. The House invoked cloture while debating an amendment proposed by Rep. Clemmons, and prior to any debate on pending amendments offered by Democratic and AA legislators. (JA 528 (D.I. Ex. 20).) Consideration of those amendments was restricted by the cloture-imposed time limitations, providing AA legislators only six minutes of debate for any given amendment. (8/28/12 Tr. at 67:24-68:5 (Rep. Harrell).). (See also DI FF 47.) 22. Unopposed. 23. Opposed in part. (Supra 17B.) 24. Opposed. The Senate amended H.3418 by striking the House bill in its entirety and inserting S.334 s language. (8/28/12 Tr. at 115:17-20 (Lt. Gov. McConnell); 8/27/12 Tr. at 73:7-11 (Sen. Campsen); JA 609 (D.I. Ex. 40).) 25. Opposed in part. (Infra 30.) - 4 -

14 Case 1:12-cv CKK-BMK-JDB Document 280 Filed 09/14/12 Page 14 of Opposed. The Senate invoked an extremely rare form of Special Order. (DI FF 49; US FF ; JA (Burton Supp. at 4-5); 8/30/12 Tr. at 254:19-255:4 (Sen. Malloy).) 27. Opposed in part. SC FF 27 understates the strength of AA legislators expressed opposition to photo voter ID legislation. (See 8/28/12 Tr. at 119:24-120:10 (Lt. Gov. McConnell).) 28. Opposed in part. Sen. Malloy described the meeting as an attempt, in light of the bill s inevitable passage, to make it as palatable, as easy a burden as possible, and to work out the best possible solution that Sen. Campsen could end up selling to his side at the time. (8/30/12 Tr. at 249:5-8, 257:21-23 (Sen. Malloy); see infra 32.) Every senator was added as a cosponsor by unanimous consent. (JA (D.I. Ex. 57); see also 8/31/12 Tr. at 30:5-9 (Dr. Arrington) ( proud standard of the Senate is consensus).) 29. Opposed in part. SC FF 29 describes only those purported mitigating provisions in Am. 8 that were not stripped during H.3418 and H.3003 conference committees, and omits stripped provisions that would have brought R54 more in line with Georgia and Indiana precedents and made the bill more palatable to AA legislators. (DI FF 40-41; supra 18.) 29A. R54 s proponents understood that the RI exception would be limited by the requirement that the RI affidavits be notarized (8/27/12 Tr. at 85:5-21 (Sen. Campsen); see 8/28/12 Tr. at 11:10-13 (Rep. Clemmons)), yet secured no funds for staffing notaries at the polls (8/27/12 Tr. at 85:22-86:22) (Sen. Campsen); 8/28/12 Tr. at 11:14-25 (Rep. Clemmons).) 29B. Legislators understood the RI ballots vulnerability to discriminatory challenges. (JA (D.I. Ex. 65).) The House drafter intended that voters who cast RI ballots must attend the certification hearings at the county seat. (JA-DI (Dennis Tr. 88:4-25, 89:15-22).) 29C. Am. 8 did not specify that the photo VR card would not require a birth certificate (JA 676 (D.I. Ex. 55)); in fact, R54 s proponents were vehemently opposed to issuing IDs that did not - 5 -

15 Case 1:12-cv CKK-BMK-JDB Document 280 Filed 09/14/12 Page 15 of 42 require birth certificates (JA (D.I. Ex. 398 (Sen. McConnell: I think it s a ticket to fraud... I ll never back away from the requirement of a birth certificate for an ID))). 29D. By stripping the staggered effective dates the transition period providing for two years of VE and a 6-month period to obtain the photo VR cards prior to the photo ID requirement s effective date the House delegation gravely undermined the education and photo VR card provisions, and made R54 far more likely to disenfranchise minority voters. (DI FF 40(b), 41(b); 8/28/12 Tr. at 170:22-171:24 (Lt. Gov. McConnell); JA 4103 (D.I. Ex. 108).) 29E. Rather than mitigate the photo ID requirement, House proponents intended instead to foster the appearance of constitutionality and VRA compliance through bare-minimum, limited saving provisions. (JA-DI 2189 (D.I. Ex. 198); JA (D.I. Ex. 398); JA-DI 217 (Dennis Tr. 71: );; 8/31/12 Tr. at 71:23-72:7 (Dr. Arrington).) 30. Opposed in part. During consideration of H.3003, the Senate changed valid and current to valid and unaltered, which would have enabled voters to vote with an expired or suspended IDs. (JA 120 (D.I. Ex. 162); JA (D.I. Ex. 160).) House conferees, not the General Assembly, rejected the use of government employee IDs. (JA (D.I. Ex. 398).) 31. Unopposed. 32. Opposed in part. The Senate adopted Am. 8 by unanimous consent, which Sen. McConnell requested be done to ensure the right to amend on third reading. (JA 3155, (D.I. Ex. 57).). Notwithstanding their consent votes, AA legislators viewed the passage of photo voter ID as inevitable, reluctantly supporting H.3418 to avert even more discriminatory legislation. (JA 3345 (D.I. Ex. 65); 8/30/12 Tr. at 249:5-7, 249:22-24, 258:10-13 (Sen. Malloy)); 8/31/12 Tr. at 27:19-28:1 (Dr. Arrington); JA (Arrington Supp ); DI FF 40.) 33. Unopposed

16 Case 1:12-cv CKK-BMK-JDB Document 280 Filed 09/14/12 Page 16 of Opposed. The vote for passage on third reading was not taken pursuant to roll call, so individual votes in favor and against were not recorded. (JA 3351 (D.I. Ex. 65).) 35. Opposed in part. (Supra 29.) 35A. In addition to restricting each county to one early voting center (JA 921 (D.I. Ex. 86)), the House version limited early voting to three days (JA 921 (D.I. Ex. 86)), which the SEC viewed as inadequate (JA-DI 2813 (D.I. Ex. 93)). 35B. Rep. Clemmons s so-called absentee reforms sought to eliminate in-person absentee voting (DI FF 41(a)), despite being informed by SCARE that resorting to all-mail absentee voting would increase the potential for fraud (JA-DI 2815 (D.I. Ex. 95)). 36. Unopposed. 37. Opposed. The conference report provided for only seven days of early voting and limited early voting centers to one per county. (JA 948 (D.I. Ex. 104).) The practical effect of this and the absentee reforms was to replace 30 days of in-person absentee voting with seven days of early voting. (JA 4090 (D.I. Ex. 108).) 37A. Although the conference report listed federal employee IDs as accepted IDs, legislators were aware that African-Americans were disproportionately likely to have state government and subdivision employee IDs. (8/28/12 Tr. at 176:21-24 (Lt. Gov. McConnell).) 38. Unopposed. 39. Opposed in part. H.3003 was modeled on the more restrictive House version of H.3418, which lacked critical ameliorative provisions. (JA 4-16 (D.I. Ex. 121); DI FF ) 40. Opposed. The House version of H.3003 did not provide for any early voting. (JA 4-16 (D.I. Ex. 121).) The cry for a clean bill was propaganda, as the House bill contained provisions unrelated to photo voter ID (DI FF 42), such as a measure permitting poll watchers to sit - 7 -

17 Case 1:12-cv CKK-BMK-JDB Document 280 Filed 09/14/12 Page 17 of 42 behind PMs, (JA 4906(D.I. Ex. 398); 8/28/12 Tr. at 134:21-135:6 (Lt. Gov. McConnell)), which Sen. Campsen perceived as voter intimidation (8/27/12 Tr. at 148:25-149:2). 41. Opposed. Democrat and Republican senators opposed the repeal of in-person absentee voting by machine. (8/28/12 Tr. at 121:9-12 (Lt. Gov. McConnell); JA , 5429 (D.I. Ex. 159).) This House reform would also have violated HAVA, which requires that a voting machine be available at each precinct, 42 U.S.C.A (a)(3). (JA (D.I. Ex. 103); JA-DI 3825 (D.I. Ex. 499).) 42. Opposed in part. (Supra 29, 35; DI FF ) 43. Opposed in part. There was no groundswell of support. (Supra 14; infra 48.) 44. Opposed in part. When H.3003 crossed over, the Senate struck all of the House provisions and replaced them with the text of S. 1. (JA 119 (D.I. Ex. 162).) (See also US FF ; DI FF 49 (discussing failed Special Order votes and Rules slot).) 45. Opposed in part. Unlike the previous Senate compromise, the Senate version of H.3003 allowed use of valid and unaltered IDs, as well as federal, state, county and municipality employee IDs; provided for eight days of no-excuse early voting in one or more centers per county; continued to permit 30-day in-person absentee voting by machine; exempted voters over the age of 65 from the ID requirement in 2012; and staggered effective dates. (JA 255, 259, 262, 267, 269 (D.I. Ex. 188).) 46. Opposed. Republican senators were also strongly opposed to the House s attempts to eliminate in-person absentee voting by machine; in any case, doing so would have been illegal under HAVA. (Supra 41.) 47. Opposed in part. Sen. McConnell voted to non-concur because he (and other GOP senators) viewed the House bill as flawed. (8/28/12 Tr. at 133:9-13; JA (D.I. Ex. 215).) - 8 -

18 Case 1:12-cv CKK-BMK-JDB Document 280 Filed 09/14/12 Page 18 of Opposed. Certain House members engineered the PR campaign to just pass the House bill. (8/28/12 Tr. at 132:24-133:8 (Lt. Gov. McConnell); see id. at 80:4-81:8 (Rep. Clemmons).) Unopposed. 51. Opposed. The House stripped key Senate provisions that would have made R54 less likely to disenfranchise voters. (8/27/12 Tr. at 97:23-98:8, 154:2-16 (Sen. Campsen); DI FF 41.) (See also DI FF 52 (Rep. Clemmons s broken promise to pass a separate early voting bill).) 51A. These informal conferee meetings excluded the lone AA legislator in either conference delegation, in violation of FOIA and SC s open-meetings law. (Scott Written 21-22; 8/30/12 Tr. at 267:18-268:2 (Sen. Scott); JA-DI 537 (L. Martin Tr. 162:6-164:8); JA-DI 213 (Dennis Tr. at 54:4-55:3 (because House and Senate conferees are two separate committees, it is illegal for two conferees from a chamber to meet privately)).) 52. Opposed in part. The H.3003 conference report retained the bare mandate to the SEC to implement an aggressive VE campaign (JA 458 (D.I. Ex. 235)), but eliminated the twoyear transition period that Senators viewed as necessary to ensure adequate education and protect the right to vote. (JA 460; supra 29D.) 53. Opposed in part. Sen. McConnell recognized the bill would pass and did the best I could do with [it]. (8/28/12 Tr. at 195:5-25 (Lt. Gov. McConnell).) (See also DI FF 42.) 54. Opposed. Sen. McConnell, and the Senate as well, viewed passage of photo voter ID in conjunction with early voting as the best way for preclearance, because it sends a strong message that we re not chilling anybody s rights, that we haven t disenfranchised anybody and that the legislation provided greater access to the polls. (JA 4910, 4923 (D.I. Ex. 398).) Sen. McConnell recognized that early voting could offset R54 s chilling effect on - 9 -

19 Case 1:12-cv CKK-BMK-JDB Document 280 Filed 09/14/12 Page 19 of 42 turnout (JA (D.I. Ex. 189)) and allow voters additional opportunities to rectify problems with their IDs at the polls (8/28/12 Tr. at 8/28/12 Tr. at 170:11-21)). 55. Opposed. Throughout the legislative process, photo voter ID legislation was understood as likely to decrease the participation of minority voters, while no-excuse early voting was understood as likely to increase minority voter participation. (Hutto Written 10, 18; Scott Written 24; 8/30/12 Tr. at 271:20-23 (Sen. Scott); id. at 290:18-291:1 (Rep. Cobb-Hunter); 8/28/12 Tr. at 40:3-43:13 (Rep. Clemmons); JA-DI (D.I. Ex. 98); JA-DI 2025 (D.I. Ex. 117); DI FF 40(a), 41(a); see also supra 54.) 56. Unopposed. 57. Opposed in part. The State has provided no evidence that the photo VR card will mitigate the racial disparity in ID possession. (See infra 147.) 58. Opposed in part. The photo VR cards will not be available upon preclearance. It will take up to four weeks for the SEC to obtain the cameras needed to produce the photos. (8/28/12 Tr. at 210:3-7 (Andino).) 58A. There is one election office in each of the 46 counties, and one additional satellite office in Bluffton, Beaufort County, serving the Hilton Head resort area. (ECF No. 224.) 59. Opposed in part. The April 26 procedures do not specify the documentation required for a new registrant to obtain a photo VR card. (JA-SC 644 (S.C. Ex. 87).) For this and other reasons, there is widespread confusion regarding required documentation, including whether a birth certificate is required. (DI FF 8; see also JA-DI 2350 (D.I. Ex. 254 (SC AG letter stating lack of birth certificate prevents voter from obtaining a Photo ID )); DI FF 11(d).) 60. Unopposed, except as to the word immediately. (See also DI FF 12.) 61. Opposed in part. (Infra 90A (discussing SEC bus).)

20 Case 1:12-cv CKK-BMK-JDB Document 280 Filed 09/14/12 Page 20 of Opposed in part. Photo VR cards are not reasonably accessible for many AA voters. (DI FF 9-11, 13-15). As to AA in-person absentee voters (e.g., roughly 22,500 in 2010 (JA 1793 (A. Martin Supp. 2))), there is no record evidence as to how many, if any, overlap with the 61,000 AA voters who lack Required ID; nor evidence of how many AA voters without ID will have access to any privately organized bus transportation to the county election offices, similar to the AA churches effort in 2008; nor, indeed, evidence that there is such an effort planned for Opposed. The availability of sufficient funds for implementation of R54 is conditional and uncertain. (US FF 87-89; see also supra 58.) 64. Opposed in part. The source does not state when the DMV began to issue IDs. The State fails to mention the documentation required in addition to a birth certificate, and that the DMV IDs expire in 5 years. (JA-DI 3977 (D.I. Ex. 415); R54, 6(C).) 65. Opposed in part. The DMV IDs are not accessible because, inter alia, many AA voters lack a birth certificate, and obtaining one can be costly. (DI FF 6-7; see also DI FF 9-11, ) 66. Opposed in part. A voter who forgets her ID on Election Day may cast a PB, but a PB will not be counted unless the voter brings the ID to the county election office before certification three days later. (R54, 5(C)(1).) The benchmark practice of turning a voter without ID away, unless the voter insists on a PB, violates HAVA. (8/29/12 Tr. at 74:10-75:7 (Andino); 42 U.S.C (a).) 67. Opposed. A voter who does not possess Required ID will not necessarily be able to cast a RI ballot if no notary is present at the precinct, if the RI exception is not applied uniformly and non-discriminatorily, or if the voter fails to complete any of the multi-step process for casting

21 Case 1:12-cv CKK-BMK-JDB Document 280 Filed 09/14/12 Page 21 of 42 the RI ballot, including answering yes to the PM s confusing question (see DI FF 17(a)) and presenting ID acceptable to the notary. (DI FF ) 68. Opposed in part. No religious objection/ri exception is necessary under current law because all registered voters are mailed the non-photo VR card, which is currently sufficient to vote. R54 does not alter the procedures for counting PBs. (JA-US 379 (D.I. Ex. 522).) 69. Opposed. The S.C. Code, (C), enumerates the duties of the chief administrative officer (here, Ms. Andino) and does not give her the authority to interpret the law; nor has she claimed such authority. (8/28/12 Tr. at 200:7-21; SC FF 69.) Section (C)(11)- (12) charges Ms. Andino with implementing and coordinating the State s responsibilities under the NVRA and UOCAVA, but not any other law (such as R54). Courts interpret the State s laws. Anderson v. SEC, 397 S.C. 551, 555 (S.C. 2012); see also id. at ( When a statute s terms are clear and unambiguous on their face, there is no room for statutory construction and a court must apply the statute according to its literal meaning. ). 69A. The authority of the SEC the Commission, not the Executive Director to promulgate formal regulations is limited by statute to discrete areas, none of which pertain to the RI provision. S.C. Ann (registration by mail); (use of candidate s name on ballot); , 611 (ballot specifications); (vote recorders); , , (absentee ballots). R54 s proponents declined a specific request to authorize the SEC to promulgate regulations on the RI exception. (JA-DI 1988 (D.I. Ex. 29).) 69B. The SEC cannot implement R54 in a way not expressly permitted by the language of the statute. Beaufort County v. SEC, 395 S.C. 366, 378 (2011). The SEC thus has no authority to among other representations made to the Court waive the notary requirement; read out R54 s limitation that an impediment must be reasonable ; change the county boards falsity

22 Case 1:12-cv CKK-BMK-JDB Document 280 Filed 09/14/12 Page 22 of 42 determination to apply only to the voter s identity, rather than to the RI; accept a vote if the RI affidavit is false; or extend the counties certification deadline. (See 8/28/12 Tr. at 227:2-228:22, 281:15-282:12, 282:16-283:21, 8/29/12 Tr. at 44:17-45:9 (Andino); ECF No. 263.) 69C. The SEC has no direct authority over the county election commissions. (JA-DI 1952 (D.I. Ex. 378); see also JA-DI 777 (Whitmire Tr. 198:6-199:3 (legislature could grant SEC control over counties, but has not done so)); JA-DI (Bursey Tr. 51:11-53:8 (SC s decentralized election system was purposefully designed, in post-reconstruction Tillman era, to reinforce suppression of AA vote)).) Neither do counties necessarily follow the SEC s guidance or training. (DI FF 24(b), 25, 30; JA-DI 2728, 2734 (D.I. Ex. 6 (many counties do not use online training or understand how to rule on PBs)); 8/29/12 Tr. at 12:10-18 (Andino).) 70. Opposed in part. The State AG s representations to this Court do not interpret state law, but rather alter the plain meaning of the statute. (Supra 69B.) The AG does not have such authority. S.C. Const. art. I, 8; art. III, Unopposed. However, the State s description of the State AG opinion is far from complete. 72. Opposed. Ms. Andino explicitly did not testify that every voter without ID would have a RI because of the short time frame, but that she thinks a lot of voters would have a [RI] even on September if they didn t have the opportunity to get a photo ID between September 15 and November 6 and then only if they knew to assert it. (8/28/12 Tr. at 221:8-18.) 72A. Ms. Andino testified that the PM should not allow a voter to cast a RI ballot under certain circumstances that the PM judges not to be a RI. (8/28/12 Tr. at 272:5-19 (Andino).) 72B. While voters may assert the same impediment in perpetuity, R54 requires them to sign a RI affidavit to that effect (and complete the rest of the process for voting by RI ballot) each time they vote. (See R54, 5(D)(1)(b); JA-DI 3470 (D.I. Ex. 505).)

23 Case 1:12-cv CKK-BMK-JDB Document 280 Filed 09/14/12 Page 23 of Opposed. The weight of evidence indicates the RI exception will not be implemented in the manner described in SC FF 73. (DI FF 24-27, 29-31; supra 69, 72A.) 74. Opposed. The State cites no evidence for the proposition that grounds to believe the [RI] affidavit is false means the voter is not who they say they are. (SC FF 74.) Ms. Andino testified that a county board should reject the RI affidavit if the board has evidence that the claimed impediment is false. (8/28/12 Tr. at 225:17-21; accord R54, 5(D)(2).) The State s position is confusing at best, even appearing to shift within one sentence: Although the falsity goes to both the voter s identity and reason, a ballot must be counted even if a voter gives a false reason so long as he establishes his identity. (SC FF 74.) 74A. Ms. Andino s construction is not authoritative or even authorized by law; nor will the county boards necessarily apply Ms. Andino s construction. (Supra 69.) 74B. Ms. Andino has not attempted to interpret either the State AG s standard of reckless regard for the truth or his analogy to criminal warrant determinations, leaving the county boards to decide what such a standard means. (8/29/12 Tr. at 50:24-51:17 (Andino).) 75. Opposed. The SEC has not identified approximately 2,000 current poll managers who are also notaries. (SC FF 75 (emphasis added).) 75A. The SEC s list of 2,000 PMs was generated by comparing a list of previously-listed PMs from the VREMS database with the Sec. of State s notary file. (JA-DI 3474 (D.I. Ex. 512); JA-DI 3441 (D.I. Ex. 516).) 75B. Several of the notaries commissions have already expired. (See, e.g., JA-DI 3441, #55.) A Jasper county official wrote that of the 33 PMs listed for Jasper County, only 5 are active: 27 are not willing to serve as PMs, and one is dead. (JA-DI 3476 (D.I. Ex. 512).)

24 Case 1:12-cv CKK-BMK-JDB Document 280 Filed 09/14/12 Page 24 of 42 75C. There is no evidence that any notary is willing to notarize affidavits on Election Day at no cost to the voter. (8/29/12 Tr. at 22:13-18, 23:3-5 (Andino); Zia Written 33.) 76. Opposed. There is no tie between R54 and state law requiring an affidavit to be notarized; there is not even a conflict (SC FF 76): R54 provides that a voter may complete an affidavit to cast a PB, and state law as the State has admitted requires that an affidavit be notarized. (R54, 5(D)(1)(b); JA-US (D.I. Ex. 523 (SC Resp. to U.S. RFAs Nos. 19, 21)).) The conflict is with the VRA. 76A. The term affidavit is unambiguous, and R54 s lead proponents testified under oath that the General Assembly s intent was to require notarization. (Supra 29A.) 76B. The county boards will likely reject RI ballots if the affidavits do not follow state law; i.e., if they were not notarized. (See 8/28/12 Tr. at 108:1-8 (Bowers) (county boards would never violate state law); cf. SC FF 70 (State AG must take care that [SC s] laws be faithfully executed ) (emphasis added).) 77. Opposed in part. SC laws on provisional and absentee ballots do not use the term affidavit. S.C. Ann , , And whatever Ms. Anderson s conversation with Ms. Andino assumed (JA-DI 3736 (Anderson Tr. 86:12-25)), it was clear to legislators including Rep. Clemmons, a notary public himself that the RI affidavit requires a notary. (Supra 29A; 8/28/12 Tr. at 15:3-4 (Rep. Clemmons).) 78. Opposed in part. The counties are responsible for recruiting notaries. (Supra 75; see also DI FF 27(b) (SEC has no authority to forbid notaries from charging for their services).) 79. Opposed. Ms. Andino testified it would not be unreasonable for a notary to refuse to accept the non-photo VR card as ID, because R54 prohibits its use to confirm the voter s identity. (8/29/12 Tr. at 20:21-21:9.) Ms. Andino s guidance contradicts the Notary Handbook, which

25 Case 1:12-cv CKK-BMK-JDB Document 280 Filed 09/14/12 Page 25 of 42 provides an exhaustive list of acceptable forms of ID. (JA-DI 1300 (D.I. Ex. 2 ( Notaries Public Are Not Authorized To:... Notarize without proper identification from the signer. Acceptable forms of identification include a valid driver s license; valid state identification; valid military identification card; valid passport; personal knowledge of the notary public; or verification of a credible witness. )).) The State cites no evidence that the Notary Handbook, issued by the Sec. of State, does not bind notaries. (Cf. JA-US (D.I. Ex. 523).) Opposed in part. Ms. Andino s interpretation of the RI exception is inconsistent with both the legislative intent and R54 s plain language. (Supra 74, 76.) The General Assembly s purpose as to the RI exception is addressed supra at Opposed in part. The SEC s actual VEP is inadequate. (DI FF 32-34; infra ) 86. Unopposed. 87. Opposed in part. The posters displayed in election offices and polling places do not inform voters about the RI exception. (JA-SC 635 (S.C. Ex. 82.)) The other materials alert voters to the existence of the RI exception but not what constitutes a reasonable disability or obstacle preventing the voter from obtaining a photo ID. (JA-SC , (S.C. Exs , ) That language gives the impression that a RI is a physical disability or an obstacle that absolutely prevents a voter from obtaining ID, in contrast to the expansive definition the State claims will be implemented. Neither do these materials inform voters about what they must do to get the photo VR card, nor that their photo ID must be valid and current. (JA (Quinn 19-21); Quinn Written 6-8; Zia Written 25.) 88. Unopposed. However, the State has failed to show that these efforts will likely be adequate in reaching the low-income, low-literacy, and rural minority voters without ID. The weight of the evidence indicates these efforts will not be adequate. (See Zia Written )

26 Case 1:12-cv CKK-BMK-JDB Document 280 Filed 09/14/12 Page 26 of Opposed in part. The State cannot meet its burden with VE materials not before the Court and promises of what it may or may not do in the future. 90. Opposed in part. The SEC has not yet begun preparations for these efforts while this case is pending (JA-DI 762 (Whitmire Tr. 138:17-140:5)), and will have at most a month to do so if R54 is precleared on or around October 1. In such a case, it would be a virtual impossibility to educate voters adequately. (Zia Written 30.) 90A. The SEC s single bus is unlikely to make a significant difference for SC s 46 counties, especially since it will visit only central locations. (DI FF 33(a); 8/28/12 Tr. at 264:2-4, 264:24-265:3, 8/29/12 Tr. at 7:24-8:3 (Andino).) In Orangeburg County alone, for example, the bus would have to cover 1100 square miles of rural farmland to reach the roughly 5,000 voters without ID. (JA-DI 2000 (D.I. Ex. 48); 8/30/12 Tr. at 274:7-12 (Rep. Cobb-Hunter); p. 38.) Nor does the VEP contain any plan for alerting voters as to when, if at all, the bus will be in their area. (JA-SC 663 (S.C. Ex. 88).) 90B. Several areas with the highest percentage or highest number of voters without Required ID (JA-SC 663 (S.C. Ex. 88)) have some of the lowest minority populations. (JA-DI 2000 (D.I. Ex. 48).) Thus, some of the bus s first stops e.g., Charleston, Beaufort and Greenville Counties will serve predominantly white, affluent part-time residents and tourists. (JA 1526, 1534 (Arrington Reb. 17, Table 4); 8/31/12 Tr. at 41:23-43:1 (Dr. Arrington).) 91. Unopposed. (See also infra 94.) 92. Opposed in part. The postcard omits critical information relating to the RI exception, the valid and current requirement, and the photo VR card. (DI FF 34; see R54, 7.) It also urges voters lacking ID to bring only their non-photo VR card to show to the notary in order

27 Case 1:12-cv CKK-BMK-JDB Document 280 Filed 09/14/12 Page 27 of 42 to have their RI affidavit notarized, even though notaries do not generally accept non-photo ID. (JA-DI 1300, 1306 (D.I. Ex. 2); 8/29/12 Tr. at 58:20-59:9 (Andino); supra 79.) 93. Opposed in part. The State cannot meet its burden with VE materials not before the Court and promises of what it may or may not do in the future. 94. Unopposed. However, if precleared October 1 or after, the SEC s mailer postcards will reach voters at best 1-2 weeks before Election Day. (See 8/29/12 Tr. at 60:11-63:13 (Andino).) 95. Opposed. The State has neither a robust training program nor clear guidelines for county election commissions, and at least 82 county officials who are required by law to complete coursework and obtain certification have not done so. (JA-DI 948; see also DI FF 24(b), 25; JA-DI 2728 (D.I. Ex. 6 (SEC online training not used in many counties )); see also JA- DI 482 (Lowe Tr. 51:12-52:5 (Republican legislator describing PMs leaving training sessions without completing them and misunderstanding responsibilities).) Unopposed. 98. Opposed. The PM Handbook supplement has already been superseded by the subsequent reinterpretation of the RI exception. (Compare JA-SC 666 (S.C. Ex. 90) with JA-SC (S.C. Ex. 99).) And neither document reflects the numerous changes and additions from Ms. Andino s testimony and the State AG s representations. (Supra 69-70, 72, 74-76; infra ) Opposed. Ms. Andino s testimony itself is self-contradicting, and thus cannot provide counties a consistent message. (Compare 8/28/12 Tr. at 210:17-23, 224:8-15 (Andino) with id. at 272:5-19, 273:14-20 (who determines whether the impediment is reasonable, and whether that judgment is subjective or objective); compare id. at 275:23-276:10 with id. at 276:20-277:9 (discretion to reject RI ballot); DI FF 16.) (See also DI FF 24-27, )

28 Case 1:12-cv CKK-BMK-JDB Document 280 Filed 09/14/12 Page 28 of Opposed. SC FF 101 and 102 are mutually contradictory, as PMs cannot possibly be already familiar with the requirement that identification be valid if, as Ms. Andino claims, valid merely means one of the five forms that are defined in [R54]. Such a reading the latest of many attempts is clearly incorrect, as valid modifies the five forms of ID in R54, 5(A). (See also JA-DI 759 (Whitmire Tr. 127:18-20 ( I assume [ valid ] means in effect or valid for use as issued? ); id. at 125:15-22 ( valid means not suspended or revoked); JA-DI 2346 (D.I. Ex. 256 (Whitmire to Andino: I m not even sure exactly what that means.... Let s leave it off [the postcard] so as not to confuse the issue. )).) 103. Opposed. The addition of a vague and undefined qualification such as valid and current necessarily increases PM discretion. (See JA (Quinn 17-18)); supra 102.) R54 also increases the opportunity for poll watchers to challenge the vote. (Hutto Written 7(h).) Opposed. (See US Response ; see also infra 119.) 117. Opposed. The RI exception will not mitigate the racial gap in ID ownership, but is likely to exacerbate it. (DI FF ) Nor will the gap be mitigated by the State s representation that the short time frame for implementation will constitute a RI, especially if the voters do not know that. (See supra 72; DI FF ) 118. Opposed. Dr. Hood s study had numerous methodological flaws. (JA (Quinn Reb. 2-20); US FF 33-37).) For example, Dr. Hood did not study the turnout gap between voters with and without ID by race. (8/29/12 Tr. at 241:1-25 (Dr. Hood).) Rather, his study showed an overall suppressive effect of the Georgia voter ID law on those without ID at the polls, and an overall increase in AA turnout in the historic 2008 election after controlling for socioeconomic factors that depress AA turnout. (8/29/12 Tr. at 237:2-238:4, 238:21-239:11 (Dr. Hood); JA (Stewart Reb ); JA (Quinn Reb ).)

29 Case 1:12-cv CKK-BMK-JDB Document 280 Filed 09/14/12 Page 29 of Opposed in part. Each individual Intervenor would face material burdens in voting if R54 is precleared. (DI FF 9-15.) Nor is mail-in absentee voting an adequate substitute for inperson voting, even for those who are eligible. See Texas v. Holder, slip Op. at * A. The process for obtaining and properly returning a mail-in absentee ballot is cumbersome and vulnerable to human error. (JA-DI 3974 (D.I. Ex. 414); JA-DI (D.I. Ex. 357).) Mail-in ballots are, for this reason and because they must be read, less accessible to voters with lower literacy and education, including Intervenors Dubose, Glover and Riley. (JA-DI 271 (Glover Tr. 7:19-21) (first grade); JA-DI 632 (Riley Tr. 7:15-16 (third grade); JA-SC 1296 (Dubose Tr. 7:12-13 (ninth grade).) 119B. Messrs. Dubose, Glover and Riley either do not know what mail-in absentee voting is or do not know that they qualify. (Dubose Tr. 18:12-20; JA-DI 275 (Glover Tr. 21:25-22:4); JA-DI 635 (Riley Tr. 19:10-13).) 120. Opposed in part. The State ignores the institutional and transportation burdens associated with obtaining the photo VR card. (See, e.g., DI FF 9-15; infra 121.) 121. Opposed in part. These Intervenors depend on others for rides, which requires that they negotiate their friends and/or family members work schedules, and in some cases pay for gas or other fees. (DI FF 15; JA-DI 272 (Glover Tr. 9:15-10:13, 12:2-3, 12:20-24); JA-DI (Riley Tr. 16:16-17:19, 17:17-22); JA-DI (Wolf Tr. 16:25-17:8).) Mr. Debose works hours per week (8/30/12 Tr. at 115:5-7) and needs permission to take time off (id. at 116:2-8). Mr. Rutherford does not state whether the bus goes to the county election office, and in any case must pay for the taxi. (JA-DI 660 (R. Rutherford Dep. Tr. 17:19-18:4).) Ms. Bailey lives 45 minutes from campus, and attends a full workload of classes during the county election office s hours. (JA-DI , 1013 (Bailey Tr. 36:1-5, 39:

30 Case 1:12-cv CKK-BMK-JDB Document 280 Filed 09/14/12 Page 30 of 42 40:11, 46:19-23).) In any event, Benedict College s fortuitous location is hardly representative. (JA-DI 652 (K. Rutherford Tr. 74:15-75:13).) 122. Opposed in part. Intervenors willingness alone does not ensure that they will cast an effective vote by RI ballot. (DI FF ) Ms. Bailey does not have access to her birth certificate. (JA-DI 1007, 1011 (Bailey Tr. at 23:14-18, 40:16-21).) 123. Opposed. Mr. James (SC NAACP) testified to receiving calls from individuals who would be unable to vote under R54. (JA-DI 3855 (James Tr. 102:12-103:2).) Mr. Bursey (SCPN) identified an individual who would be unable to vote and said that he was aware of others anecdotally and by inference. (JA-SC (Bursey Tr. 83:21-85:6).) Ms. Zia (SCLWV) testified that her organization has encountered [m]any voters who believe they will be unable to vote because they lack one of the acceptable forms of ID. (Zia Written 23.) In any event, new burdens on voting may be impermissible under the VRA even if those burdens do not render voting absolutely impossible. (Infra 149.) RESPONSE TO SOUTH CAROLINA S PROPOSED CONCLUSIONS OF LAW 124. Opposed in part. States must comply with the VRA in adopting voting changes Opposed. (See infra ) 126. Opposed in part. The State has failed to carry its burden to show the lack of discriminatory purpose under the Feeney definition. (DI CL 67-71; US CL ) And the fact that decision-makers knew of the adverse effects of a voting change, though not dispositive, can provide powerful circumstantial evidence of discriminatory intent. Florida, slip Op. at *103 (citing Feeney and Arlington Heights) Opposed in part. When each party has met its production burden, those burdens fall away and it remains for [the Court] to assess whether [the State]... has satisfied its ultimate burden

31 Case 1:12-cv CKK-BMK-JDB Document 280 Filed 09/14/12 Page 31 of 42 to prove, by a preponderance of the evidence, that its election changes were not motivated by any discriminatory purpose. Florida, slip Op. at *99. (See also DI CL 67(a).) 128. Opposed. (See DI CL ) Opposed in part. Crawford does not support the proposition that a proactive interest in securing elections against impersonation fraud justifies any voter ID law. Texas v. Holder, slip Op. at *20-21 (Arlington Heights-type evidence could nonetheless suggest that [a state] invoked the specter of voter fraud as a pretext for racial discrimination ). (See DI CL 69.) 134. Opposed. There is no evidence supporting the contention that R54 actually promotes public confidence in the integrity and legitimacy of representative government. (Cf. 8/30/12 Tr. at 60:10-24 (Freelon); id. at 89:17-23 (Williams).) And certainly, voter confusion, violation of state law and disenfranchisement can hardly promote public confidence in the State s elections. (Supra 29, 59, 64-66, 69, 72, 74, 76, 80-85, 87-90, 92-95, ) 134A. Under R54, voters would receive two photo VR cards in addition to their non-photo VR card, and none of these IDs expire. (JA-DI 747 (Whitmire Tr. at 77:3-78:); see also DI FF 12.) In this respect, R54 increases the hypothetical opportunity for impersonation fraud Opposed. The proper assessment of discriminatory purpose considers a variety of factors beyond the self-serving and contested testimony of proponents. (DI CL 68-70); cf. State of N.Y. v. U.S., 874 F. Supp. 394, 401 (D.D.C. 1994) (uncontested statements by legislators may be sufficient to show absence of discriminatory intent). Here, the record demonstrates that the State cannot meet its burden under the Arlington Heights framework. (DI FF 1-2, ) Moreover, the State s claim that SC legislators modeled R54 on Georgia and Indiana s voter ID laws is belied by the record, which establishes that legislators were aware of R54 s restrictiveness as compared to Georgia and Indiana s statutes. (Supra 18.)