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Federal Judge Rejects Voting Rights Challenge To North Carolina Ballot Changes

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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:

North Carolina NAACP Et Al v. McCrory Et Al by Doug Mataconis

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. Ron Beasley says:

    If we are going to have a “you papers please” society ( a bogey man they used to scare us with when I was growing up in the 50s) they should at least be free and easy to get. I don’t drive anymore but it costs me $5 a year for my photo ID. I already had my birth certificate so I don’t know how much it would have cost me to obtain a copy. If we are going to need papers it should be free and automatic – perhaps something that is done in your early teens. It may be necessary now, you already need photo ID to open a bank account, get on a plane, bus or train or even sell a used book at your local bookstore. But it should be free and easy.

    Like or Dislike: Thumb up 6 Thumb down 1

  2. jd says:

    Ever hear the expression “death by a thousand cuts”? It’s assumed that each individual cut is non-fatal. But taken together…

    Like or Dislike: Thumb up 4 Thumb down 0

  3. Stonetools says:

    There was actual evidence of a Republican legislator hailing the law as being good because it because it would prevent “lazy blacks” from voting. I guess unless we get the Republican speaker of the house on tape saying “This law will put the darkies back in their place” we won’t be able to prove intentional racial discrimination.
    Ah well let’s look at the upside: most of the worst provisions of this voter suppression law won’t take effect till 2016
    The basis for law-that there is widespread voter fraud- has been so comprehensively debunked that when the full hearing is held next year the plaintiffs will have a strong case that the law is unnecessary and was indeed simply intended to reduce minority voting.
    The case will be appealed to the Fourth Circuit, which has become one of the more liberal circuits.
    The downside, of course, is that the it will end up the in the anti voting rights Supreme Court.

    Bottomline, things just got tougher for blacks who want to vote in North Carolina. The struggle for justice there just got a little harder.

    Like or Dislike: Thumb up 5 Thumb down 0

  4. rudderpedals says:

    Where’s the K man going to go with it? It’s really kind of sad that the high court oracle turns once more on the decisions of this one actor.

    Like or Dislike: Thumb up 0 Thumb down 0

  5. al-Ameda says:

    Who can be surprised that a conservative judge would rule as such? This decision is completely consistent with the current conservative view that racism is “over.” Is this view of racism naive or cynical? I tend to think it is cynical.

    I have voted for nearly 24.years at the same polling site and NOT ONCE have I been asked to provide identification. I am asked my name, my address, and that is it – 12 elections, no requests for photo identification. Current efforts to solve the “problem” of in-person voter fraud are aimed at reducing turn out of Black voters.

    Like or Dislike: Thumb up 4 Thumb down 0

  6. Another Mike says:

    @Ron Beasley:

    But it should be free and easy.

    Some places it is. A couple years ago the social worker said our disabled son needed an ID card. We took him to the BMV, and 15 minutes later we walked out of there with his ID card. There was no cost. It looks like a driver’s license except it says Identification Card.

    Like or Dislike: Thumb up 1 Thumb down 0

  7. Tyrell says:

    I have seen first hand how a voter id could actually be beneficial to voters.
    A few years ago a friend and I went to vote ( early voting on a Saturday). After waiting in line for an hour, we got up to the table. My friend had recently moved and they required proof of new address. He had not yet changed his drivers license, so we had to get out of line and go to his home, where he had to hunt up two utility bills for proof of address. We got back in line and had to wait another hour, again, but we got to vote. An id card would have eliminated this problem. Bear in mind also that this held up the line, as the elections workers had to take time to explain what he needed to get for proof.
    A process could be worked out in which a simple id could be mailed out upon request, for those who don’t have a drivers license.
    Another incidental problem was having to wait that long with no restrooms, snack/drink machines available at the voting place. It seems that volunteers could at least give out coffee or soft drinks. That would be a good fund raiser for some group. And a hot dog or donuts would be good too.
    “given the racism in North Carolina’s past”: you’re out of line there, Mr. Judge !!

    Like or Dislike: Thumb up 0 Thumb down 7

  8. beth says:

    And when they still lose elections even with stringent voter ID laws? Then what? Back to poll taxes and voter quizzes? What a bunch of short term thinkers the Republicans are. Who in their right mind would want them running anything?

    Like or Dislike: Thumb up 4 Thumb down 0

  9. wr says:

    @Tyrell: Um, Tyrrell? Your friend HAD an identity card. It’s called a driver’s license, one which he had neglected to update. So if he didn’t have a chance to update his DL, which he presumably carries with him at all times, how would he have had the moment to get a new ID card?

    Like or Dislike: Thumb up 5 Thumb down 0

  10. Tillman says:

    @Tyrell:

    Another incidental problem was having to wait that long with no restrooms, snack/drink machines available at the voting place. It seems that volunteers could at least give out coffee or soft drinks. That would be a good fund raiser for some group. And a hot dog or donuts would be good too.

    Depends on the polling station. They have bathrooms — the poll workers are there for the long haul. Also it would cost more money to have people handing out drinks or food (poll workers aren’t paid that well anyway, and volunteers could shill for a campaign).

    Like or Dislike: Thumb up 2 Thumb down 0

  11. Another Mike says:

    @beth:

    And when they still lose elections even with stringent voter ID laws?

    The point isn’t about winning or losing elections. The point is that elections are conducted fairly and with vote integrity.

    Like or Dislike: Thumb up 1 Thumb down 5

  12. al-Ameda says:

    @Another Mike:”The point isn’t about winning or losing elections. The point is that elections are conducted fairly and with vote integrity. ”
    ****
    In the absence of empirical evidence of voter fraud in North Carolina I am left to infer that this is all about suppression of the voter turnout of the Black Democratic voting constituency.

    Like or Dislike: Thumb up 4 Thumb down 1

  13. bill says:

    this never fails to amaze me, the need for an id to vote. you need an id to do nearly anything, why not something as important as voting?! and please stop with the “poor black women living in the woods” bs, it’s tired. last i checked there’s no early voting in new york state- yes, that new york state that seems to be a bastion of democrats! bear in mind that upstate ny is fairly rural and difficult to find the right polling place- but they still manage somehow.

    @Tillman: last place i voted in was a church, they had coffee & donuts too (which is not legal in Texas, but i doubt if anyone narced on them)

    @Ron Beasley: $5 can’t be a hardship, and where i live they’re free now. voting is free but the term “easy” is subjective, especially in rural areas with low population density.

    @al-Ameda: so if its not broke then there’s no need to fix it?

    Like or Dislike: Thumb up 2 Thumb down 5

  14. Moderate Mom says:

    I’ve been voting at the same polling place for over 20 years. I have to show my voter’s registration card in order to vote. If I don’t have it in my wallet, I have to show my driver’s license. Every single time. No ID? Not voting. I don’t have a problem with that.

    Like or Dislike: Thumb up 0 Thumb down 0

  15. jd says:

    @bill: “you need an id to do
    nearly anything, why not
    something as important as
    voting?!”

    Because voting is a basic right. All those other things you’re imagining are not.

    Like or Dislike: Thumb up 0 Thumb down 0

  16. Another Mike says:

    @al-Ameda:

    In the absence of empirical evidence of voter fraud in North Carolina I am left to infer that this is all about suppression of the voter turnout of the Black Democratic voting constituency.

    Yes, if I wanted to suppress the black vote, I would make a law that says everyone needs a government-issued photo ID, which will be issued for free. That will really trip up those black people, because everyone knows that white people know where the ID issuing office is and black people do not. The plan is practically foolproof.

    Like or Dislike: Thumb up 1 Thumb down 2

  17. ernieyeball says:

    @Moderate Mom: I have been voting at the same polling place in Makanda Township, Illinois since 1985. All they ever ask for is my name. They then tell me the address they have on file for me and ask me to confirm it. I always have my Voters Registration Card in hand. They never ask me to present it or any other form of ID. I don’t have a problem with that.
    Rand Paul is a Congressman as are all the male members of the US House and Senate. The women are Congresswomen.

    Like or Dislike: Thumb up 0 Thumb down 0

  18. rudderpedals says:

    @jd:

    Because voting is a basic right. All those other things you’re imagining are not.

    I wish it were so but the courts don’t agree (voting is unfortunately not a fundamental right)

    Like or Dislike: Thumb up 0 Thumb down 0