Republican legislators can hardly get around the fact that their 2013 overhaul of North Carolina election laws is likely to inconvenience some groups of voters more than others.
For example: People working two jobs to make ends meet will tend to feel the impact of a shorter early voting period more than will retirees with flexible schedules who can count on being able to vote on Election Day.
Of course, those legislators don’t want to see it that way. As they defend the changes in a federal court trial that got under way on July 13, they argue that all voters are equally affected.
In the abstract perhaps that’s true, but as a practical matter not so much. What a coincidence that when there are fewer opportunities for early voting, for registration, and for voting outside of one’s home precinct, it’s Democratic voters who, in the aggregate, pay the price.
The gist of the court challenge, however, goes to another way that the changes tend to affect some voters more than others.
Plaintiffs, including the N.C. NAACP, the League of Women Voters, and the U.S. Justice Department, contend that in trying to shape the electorate to Republican advantage, legislators crossed the line into hindering that group of voters who happen to be black. And if so, whether the discrimination was intentional or not, it should be illegal six ways from Sunday – if the federal Voting Rights Act is still taken seriously by the judges who decide these things.
The case now being tried is being heard without a jury by U.S. District Judge Thomas Schroeder in Winston-Salem. Key issues are the cutback in early voting from 17 days to 10, the scrapping of same-day registration during early voting, and the end of out-of-precinct voting (by which someone who went to the wrong precinct could cast a provisional ballot). The plaintiffs are sure to lean on evidence showing that each of the measures targeted by the Republican legislative majority was especially popular among black voters.
All the circumstances
The lawsuit will travel a long road, more than likely all the way to the U.S. Supreme Court, before it’s finally resolved one way of the other. But the groups bringing the challenge can take some encouragement from the response when they went to court last fall.
Their goal was to keep the changes, which they characterized as a brazen attempt at voter suppression, from taking effect for the November 2014 elections. They sought an injunction to put the changes on hold until after a trial on their merits. (That’s the trial now taking place.)
Schroeder declined to issue the injunction, concluding that the plaintiffs were unlikely to succeed in the long run. But when his ruling was taken to the 4th U.S. Circuit Court of Appeals, two judges on a three-judge panel concluded otherwise.
Circuit Judge James Wynn Jr. – a black North Carolinian well familiar with this state’s politics and history – maintained that it was only in light of that history and “the totality of the circumstances” that a proper assessment of the changes could be made.
Wynn cited past Supreme Court decisions to that effect, and also quoted language from Section 2 of the Voting Rights Act, which forbids any “standard, practice or procedure” that “results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.”
He noted the extent to which black voters used early voting, same-day registration, and out-of-precinct voting – taking advantage of those privileges at higher rates than whites. The early voting cutback could go ahead, pending a trial, Wynn and Judge Henry Floyd of Virginia said, but the other two provisions were so discriminatory that they should be immediately blocked.
No doubt Wynn had “the totality of the circumstances” in mind when he reviewed the timing of the 2013 changes, which were packaged as the Voter Identification and Verification Act.
The act started out as a basic voter ID proposal, following a tactic used by Republicans nationwide ostensibly to cut down on instances of voter fraud. In reality, fraud by impersonation rarely occurs, and a photo ID rule therefore would have little effect as a fraud preventative. Strictly enforced, however, it would make it harder for people who lacked driver’s licenses, passports or other forms of government-issued photo IDs to vote.
Those people are more likely to be members of groups that lean Democratic at the polls – poor, young, minority. The discriminatory potential was so clear that legislators in June abruptly loosened the rule, allowing someone who claims a “reasonable impediment” to getting a proper ID to go ahead and cast a provisional ballot. That led Judge Schroeder to remove voter ID as an issue to be considered during the ongoing trial.
Two years ago, though, the original ID bill became a vehicle for an entire portfolio of election law changes. The timing of that transformation signaled the motives at work, and on that score Judge Wynn wasn’t going to let legislators off the hook.
A tale in the timing
In June 2013, the Supreme Court had invalidated the Voting Rights Act’s requirement that states with histories of voter discrimination obtain Justice Department approval when making election law changes. The “preclearance” requirement applied to 40 North Carolina counties.
As Wynn recounted, the day after the high court’s ruling, a powerful Republican senator, Rules Chairman Tom Apodaca of Hendersonville, had publicly stated legislators’ intent to “go with the full bill.” In other words, they had waited until they could avoid federal scrutiny before pushing through a package of changes that previously, they must have assumed, would have been shot down.
Last fall, despite Wynn’s ruling, the Supreme Court opted not to alter the legislature’s timetable at the last minute. It allowed all the changes to take effect for the November general election. But Justice Ruth Bader Ginsburg, joined by Justice Sonia Sotomayor, filed a pungent dissent.
Ginsburg echoed Wynn’s assessment of the legislature’s timing – in essence, an effort to push the discriminatory envelope once the Supreme Court gave it a chance. There’s no telling whether or how Ginsburg’s perspective might yet come into play. But if the plaintiffs now making their arguments in Winston-Salem wind up taking those arguments to Washington, she’s not likely to give them a hostile reception.
The trial’s start drew national attention – magnified by a march of voting rights advocates who crowded downtown streets in a sequel to the NAACP-led Moral Monday demonstrations held in Raleigh during the last two summers.
Ultimately, advocates hope, the case will lead to a renewed requirement that North Carolina get federal approval when it changes election laws. And they want to see the case reaffirm the Voting Rights Act as a tool to combat racially discriminatory voting measures pushed for partisan advantage.
The North Carolina Council of Churches puts equal and ample access to the polls as one of its high-priority concerns, especially in light of the Council’s long history of work for racial justice. Council leaders and staff were on hand in Winston-Salem to help articulate what’s at stake in the trial and to march in solidarity with the NAACP and other plaintiffs.
So far, there’s been no good explanation from the legislature as to why the changes it enacted were needed. But the plaintiffs have a good explanation as to the harm those changes could do and the motives that drove them. That could, or should, foreshadow an outcome affirming important principles of representative democracy.
Steve Ford, former editorial page editor at Raleigh’s News & Observer, is now a Volunteer Program Associate at the North Carolina Council of Churches.