Voter ID Legal Tab Jumps to $3.5 Million, Though Details Lacking

January 8, 2013

Investigative Reports

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Voter IDUPDATE: After this story was published, the S.C. Attorney General’s Office provided The Nerve with a breakdown of legal bills submitted by two law firms that represented the state in the voter ID case. Bancroft PLLC, located in Washington, D.C., billed a total of 6,290 hours from September 2011 through last September at hourly rates of $520 for attorneys, $200 for research associates and $180 for paralegals. With other litigation costs thrown in, the firm’s total invoice came to $3,419,439. Attorney Christopher Coates of Charleston billed a total of 791.2 hours from September 2011 through last August at $175 per hour; including other litigation costs, his total bill came to $150,103. The grand total tab for the two law firms’ work was $3,569,542.

On Friday, S.C. Attorney General Alan Wilson revealed publicly for the first time – and only after being asked by a lawmaker – that the state’s cost of defending the controversial voter ID law in federal court was “$3.5 million and change.”

More than $3.4 million of that amount was charged by a Washington, D.C., law firm – less than a year after the state sued the federal government and U.S. Attorney General Eric Holder. The Nerve on Friday asked the S.C. Attorney General’s Office for a breakdown of the bill – hours worked and hourly attorney rates – submitted by Bancroft PLLC, but was provided only the total amount charged.

No new billing information was provided Monday after The Nerve made a second request, though Wilson spokesman Mark Powell said those details would be released today.

During a legislative Joint Other Funds Oversight Committee meeting Friday, Wilson requested a one-time budget increase of $2,006,000 in “other” funds for this fiscal year, which ends June 30. He didn’t specify that the money was for the voter ID litigation costs until questioned by committee member Rep. Harry Ott, D-Calhoun.

“So we’re getting ready to spend $2 million because we fought voter ID?” asked Ott, the outgoing House minority leader.

“That is the remainder of the bill,” Wilson, a Republican, replied.

When Ott pressed for the total state cost, Wilson responded, “$3.5 million and change.”

Five lawmakers on the eight-member oversight committee attended Friday’s meeting. Wilson’s request for the additional $2,006,000 was quickly approved on a voice vote, though committee chairman Sen. Nikki Setzler, D-Lexington, pointed out earlier that the committee could only make recommendations to the Office of State Budget.

After the vote, Setzler, an attorney, joked, “We are in the wrong business.”

If approved by the Office of State Budget, which is likely given past practice, the additional costs for the voter ID case would come from court settlement funds – classified as “other” funds – carried over by the Attorney General’s Office from the previous fiscal year, records show. That account balance as of Friday stood at $6.5 million.

To put the approximately $3.5 million price tag of the voter ID case into some perspective, it would equal more than 16 percent of the total $21.86 million ratified budget for the Attorney General’s Office for this fiscal year, and nearly 42 percent of the agency’s current $8.37 million general-fund appropriation.

A state law passed by the S.C. General Assembly in May 2011 requires voters to show a photo ID before being allowed to vote, including those who have voter registration cards. The U.S. Department of Justice in December 2011 prevented the law from going into effect under its “preclearance” authority granted through the 1965 Voting Rights Act, contending the law would disenfranchise minority voters who didn’t have photo IDs.

The state, through the Attorney General’s Office, disputed the federal government’s claims and filed a lawsuit last Feb. 8.

On Oct. 10, a three-member federal judicial panel in Washington, D.C., ruled that the South Carolina law was legal, though voters could opt out of the photo-identification requirement by signing an affidavit at their polling place listing a “reasonable impediment” to obtaining a photo ID. The judges also said the law would not apply to the state’s November 2012 elections.

Federal online court records show that eight Bancroft attorneys represented the state in the voter ID case, which, based on a total cost of $3,419,438.28, works out to an average cost of $427,429.78 per lawyer.

The 15-lawyer firm on its website says it “litigates high-stakes cases and solves complex problems.”

The two lead Bancroft lawyers in the voter ID suit were Paul Clement, who served as a U.S. solicitor general – the federal government’s top litigator before the U.S. Supreme Court – under former President George W. Bush; and H. Christopher Bartolomucci, who also served under then-President Bush as an associate counsel.

Efforts Monday to reach Clement and Bartolomucci, both of whom are listed as partners in the law firm, were unsuccessful.

Besides Bancroft, the state of South Carolina also was represented by Christopher Coates, a Charleston attorney and a former longtime U.S. Department of Justice lawyer who served as head of that agency’s Voting Rights Section under former President George W. Bush. His firm charged the state $147,578.78, according to information provided by the Attorney General’s Office.

In addition, Columbia attorney Butch Bowers, who helped defend Gov. Nikki Haley in a state ethics probe last year, charged $10,880 to represent the State Election Commmission, according to records.

Contacted Monday by The Nerve, Coates declined to say how many hours he worked on the case or his hourly rate, referring those questions to Attorney General’s Office, though he said he submitted detailed bills.

Coates, who noted he has handled voting cases since 1976, said South Carolina’s voter ID case involved an “astronomical number of lawyers on the other side of the case, which always drives up the costs.”

In a written response Friday to The Nerve, Wilson’s spokesman, Powell, said the U.S. Department of Justice and other parties that joined with the federal government, including such organizations as the South Carolina State Conference of the National Association for the Advancement of Colored People (NAACP),  the League of Women Voters of South Carolina, and the South Carolina Progressive Network, collectively were represented by 36 attorneys – three times the number of lawyers representing the state.

“The Department of Justice in Washington, D.C., bears responsibility for the litigation costs,” Powell said. “Attorney General Alan Wilson sought to avoid expensive litigation by requesting administrative approval from the Justice Department. DOJ not only refused to grant pre-clearance, it forced the Attorney General to defend a just law passed by the General Assembly in federal court.”

“South Carolina was forced to pay a hefty price because a handful of Washington insiders refused to do the right thing,” Powell added.

But state Sen. Gerald Malloy, D-Darlington, who was cited in the Oct. 10 federal court order as one of several African-American state legislators whose concerns were “powerfully expressed at trial,” doesn’t see it that way.

“I’m sure there are some in government who will say that the $2 million (requested Friday by Wilson) could have been better spent on core services or on a lot of other services,” Malloy told The Nerve when contacted Monday.

“The issue was, and continues to be, that there was no public outcry for voter ID,” Malloy, an attorney, continued. “They (attorneys for the state) rewrote the bill for the court order based on promises, so how can they declare victory?”

In a separate court order issued Friday, the three-judge panel in Washington, D.C., said the state was entitled to reimbursement of a portion of $90,379 in submitted legal costs, excluding attorney fees, ruling that certain costs were not recoverable. The state has until Friday of this week to submit a revised bill to the court.

Reach Brundrett at (803) 254-4411 or rick@thenerve.org.