Federal Judge Rejects Voting Rights Challenge To North Carolina Ballot Changes
A Federal Judge has rejected a challenge filed by the NAACP and other civil rights organizations against a North Carolina law that mandated Voter ID, restricted early voting, and took other steps that the group alleged were designed to reduce the voting power of minorities:
ATLANTA — A federal judge in North Carolina on Friday rejected an effort by civil rights groups and the Justice Department to block the application of key elements of a Republican-backed state law that curtailed early voting and other opportunities for residents to cast their ballots.
The 125-page written ruling, issued late Friday by Judge Thomas D. Schroeder of the Federal District Court, rejected the plaintiffs’ arguments that the law, one of the most far-reaching in a recent national wave of Republican-backed legislation on voter ID and against voter fraud, would place “disproportionate burdens” on African-American voters hoping to participate in the November elections.
Judge Schroeder, who was nominated by President George W. Bush, acknowledged that given the racism in North Carolina’s past, residents “have reason to be wary of changes in voting law.”
But he cited various ways in which black voters would still have opportunities to get to the polls, even with the less generous ballot access the law affords. For example, one part of the law reduces the period of early voting to 10 days from 17. Judge Schroeder noted that witnesses in last month’s hearing “opined” that the loss of days would hamper get-out-the-vote efforts. “But no witnesses testified that he or she will not be able to adjust operations readily to fit the new early-voting period,” he wrote.
Over all, he stated, the plaintiffs failed to show that they were “likely to be irreparably harmed,” and were thus unworthy of the injunction.
The law, which was signed by Gov. Pat McCrory, a Republican, in 2013, will require voters to show a picture ID at the polls, but not until 2016. At issue in this case were changes already in effect, including the seven-day reduction of the state’s early-voting period; the elimination of a program that allowed for registration and voting on the same day during early voting; a ban on counting provisional ballots when voters cast them out of their home precinct; and a program that allowed 16- and 17-year-olds to “preregister” in anticipation of coming elections. The plaintiffs, including the state N.A.A.C.P., had argued that many of these provisions were particularly popular with black voters.
North Carolina’s Republican legislature enacted this law in the wake of the Supreme Court’s 2013 decision that essentially gutted the pre-clearance requirements of Section 5 of the Voting Rights Act. This meant that North Carolina could enact the law without having to get prior approval from the Justice Department’s Civil Rights Division and without having to worry about defending the law in Court if the Justice Department refused to approve the changes to voting laws. In light of this, the Plaintiff’s proceeded under Section Two of the Voting Rights Act, which prohibits any state or locality from enacting ”voting qualification or prerequisite to voting, or standard, practice, or procedure … in a manner which results in a denial or abridgement of the right … to vote on account of race,” color, or language minority status.” In many respects, Section Two of the VRA is just as strong as Section 5, but the biggest difference is that it requires aggrieved parties to wait until after a law is enacted to challenge the law rather than placing the burden on certain jurisdictions to justify the changes that they have enacted. However, Section 2 has historically been used, with great effect, to challenge things like redistricting which tend to dilute the voting power of minorities, not to challenge changes in the way elections are conducted. For that reason, maintaining such claims under this part of the law are difficult at best.
As University of California, Irvina professor and election law expert Rick Hasan noted, though, Judge Schroeder, a George W. Bush appointee, was deeply skeptical of the viability of the claims made by these Plaintiffs under the law, but also noted that the ruling sets up a split in the Federal Courts that makes it likely that these issues are headed to the Supreme Court eventually:
1. This is a careful, well-written and well-reasoned decision rejecting the U.S. and private plaintiffs’ Voting Rights Act and constitutional claims against some key provisions of strict North Carolina’s voting law passed last year. The opinion was only on a preliminary injunction, the court did not reach all the legal issues presented (and was tentative on some of the conclusions regarding some parts of the law) and it did not opine much on the voter id portion of the law. But this is an opinion in which the court expressed great skepticism about the use of either Section 2 of the Voting Rights Act or the U.S. Constitution’s equal protection clause to protect voting rights in a strong way. If this ruling stands, it shows that Section 2 and the Constitution’s Equal Protection Clause are poor substitutes in protecting voting rights for Section 5 of the Voting Rights Act, which the Supreme Court gutted in its Shelby County opinion from last year.
2. This ruling is at odds with the other major ruling on the use of Section 2 in these vote denial cases, the Frank v. Walker case. That case was a voting rights plaintiffs lawyer’s dream, reading Section 2 of the VRA and the Constitution’s equal protection clause expansively to broadly protect voting rights. That case is currently on appeal to the Seventh Circuit. Today’s case could well be appealed to the Fourth Circuit. Eventually one or more of these cases could make it to the Supreme Court. Given the current conservative orientation of a majority of the Supreme Court, it seems likely that a Court majority would be more attracted to the narrow reading of Section 2 offered in today’s ruling compared to the broad ruling in Frank v. Walker.
6. In sum, I had always thought that using section 2 of the VRA (or the Constitution’s equal protection clause) to challenge the elimination of same day registration, a cutback in the number of days of early voting, and similar provisions would be an uphill battle. This opinion proves today that this is correct. Unlike the wooden, unthinking opinion about voter id which we recently saw from the Wisconsin Supreme Court, this opinion rejecting the claim of voting rights plaintiffs is careful, considered and reasonable. While Frank v. Walker also presents a reasonable alternative way of reading the scope of voting rights protections after Shelby County, it is this opinion that is more likely to represent how the Supreme Court would view these issues if and when these cases make it to the Supreme Court.
The Frank v. Walker case that Hasan refers to is the Wisconsin case in which a Federal Judge struck down that state’s Voter ID law. In that decision, the Judge found that there was little evidence of in-person voter impersonation in Wisconsin such that, when compared with the burdens that the identification requirement placed on voters, it was insufficient to survive the balancing test that the law requires. The law that Judge Schroeder was dealing with is much broader than the Wisconsin law because it includes reductions in the days that polls are open for early voting, changes regarding the time limits that must be followed for voters who register to vote before an election, and other changes. While Judge Schroeder’s 150 page opinion largely defies excerpting here, his essential holding with respect to each of these matters is that the burden placed on voters is de minimis and the governments interests in properly regulating the electoral process was sufficient to support the law. With regard to many of the law’s provisions, this argument makes sense. Reducing early voting from 17 to 10 days is clearly not a significant restriction on voting rights, especially when one takes into account the fact that there is no evidence at all that the availability of early voting actually increases turnout. The same is true of the changes that shortened the amount of time within which one could register to vote prior to an election. With specific regard to the Voter ID laws, while it certainly seems to be the case that the GOP’s emphasis on these laws is misplaced given the fact that there’s little evidence of the type voter fraud that such laws would prevent, that does not strike me as being sufficient reason to strike the laws down. Indeed, to a large degree the Walker case stands as an exception among Federal Court challenges to Voter ID laws. Most of those laws have been upheld, and in 2008 the Supreme Court itself upheld an Indiana Voter ID law that was adopted long before the recent trend toward these laws had started. While these law may be unwise, or at least unnecessary, they are not necessarily illegal.
As Hasan notes, one of the more interesting aspects of Schroeder’s opinion was his rejection of the Plantiff’s argument that statements from certain legislators that appeared to show some racial motivation for the law was relevant evidence under Section 2 of the VRA:
4. Importantly, the court today rejected evidence offered that the North Carolina legislature passed its laws out of a racially discriminatory intent. The judge seemed to believe that some of it was motivated by partisanship, not race and held that this did not constitute proof of racial discrimination. (I have written about this issue and the difficulty of disentangling the two standards in Race or Party? How Courts Should Think About Republican Efforts to Make it Harder to Vote in North Carolina and Elsewhere, 127 Harvard Law Review Forum 58 (2014).) But the big significance of a finding (at least preliminarily) of no intentional discrimination is that this means that DOJ will have a hard time getting North Carolina covered again under the preclearance provisions of the Voting Rights Act. Section 3 of the Act gives a court discretion to impose a preclearance regime on a jurisdiction found to have engaged in intentional discrimination in violation of the 14th or 15th amendments. Without such a finding, however, the state cannot be put back under preclearance.
This seems appropriate to me. The fact that a few legislators may have said something that could be interpreted as evidence of some racially discriminatory intent is not necessarily evidence of what the intent of the legislature as a whole actually is. Indeed, it’s probable that Judge Schroeder is correct and that the primary motivation for these laws was partisan. However, there is no bar against election laws with a partisan bias. In fact, such laws have long been part of our political system and will likely continue to be for a long time. It’s unfortunate, and it ought to be addressed, especially in areas such as redistricting, but that doesn’t mean that it is illegal or that the Federal Government ought to be stepping in and telling states “you can’t do that” in situations where there isn’t clear evidence of an intent to violate the 15th Amendment or other provisions of Federal Law.
Much as the Wisconsin case will be appealed to the 7th Circuit, this case is quite obviously headed for an appeal in the 4th Circuit. Both cases are likely to reach the Supreme Court at the same time, perhaps in time to be considered and potentially ruled upon during the Court’s October 2014 term. Whenever they get there, though, it’s clear that they are head to the Justices at some point in the near future. In the meantime, absent a stay the North Carolina law will be enforced going forward, although some provisions such as the Voter ID requirement do not go into effect until 2016.
Here’s the opinion: