North Carolina Judge upholds that states’ ‘most restrictive voting law in the nation’

A North Carolina Judge has upheld that states’ “most restrictive voting law in the nation” as not being overly burdensome on black voters. Rick Hasen at Election Law Blog has an  Analysis: Federal District Court Upholds Restrictive NC Voting Law in 485-Page Opinion:

VotersFederal district court judge Thomas Schroeder has issued this 485-page opinion considering constitutional and Voting Rights Act challenges to North Carolina’s 2013 restrictive voting law . . .

This is a careful, erudite, yet controversial opinion which will almost certainly be appealed to the United States Court of Appeals for the 4th Circuit, which could well reverse parts of it, and then potentially to the United States Supreme Court, where the Court could well deadlock 4-4 (leaving any 4th Circuit ruling in place). And all of these appeals will have to happen in short order for it to affect how the 2016 elections take place under the Purcell principle. 

Here is my overall impression having read/skimmed the 485 pages: the judge does a very thorough job going through the evidence of the law’s burdens on voters and the state’s interest in passing the law. The judge goes into the evidence in great detail, but the opinion reads like someone who is very, very skeptical of the plaintiffs’ arguments, and very forgiving in terms of the state’s interests. The aspect of the opinion I found particularly weak is his discussion of whether the state had good reasons for the voting cutbacks, which are the greatest set of election rollbacks in a single bill that I know of at least since the passage of the 1965 Voting Rights Act. It is pretty clear that the North Carolina voting law was partisan legislation enacted to help Republicans; but the judge barely discusses the role of partisanship, except to note (on page 468) partisan by Democrats in an earlier bill to allow out-of-precinct voting. And part of this is exacerbated by the “race or party” question. The judge has to look at this through the lens of race, at least for Voting Rights Act purposes.  A better approach would be to say (as I argue in the Harvard piece and elsewhere), that when a state makes it harder for voters to vote, the question should be whether the state has a good reason for burdening voters. And that’s where the tenuousness of many of the state’s arguments come in.

The court’s key conclusion about the nature of the claims comes near the end of the case:

In short, North Carolina has provided legitimate State interests for its voter-ID requirement and electoral system that provides registration all year long up to twenty-five days before an election, absentee voting for up to sixty days before an election, ten days of early voting at extended hours convenient for workers that includes one Sunday and two Saturdays, and Election Day voting. Plaintiffs oppose this system because they preferred one that they say was even more convenient – which they used disproportionately during certain elections – and point to some fraction of voters who did not vote or register. Plaintiffs’ contention that such voters did not do so because of vestiges of historical official discrimination is rebutted by the facts. There is strong evidence that some other reason is at play for the failure of these persons to register and/or vote. The unprecedented gains by African Americans in registration and turnout, both during and even in 2014 after SL 2013-381, bolster this conclusion. While the consideration is clearly local and practical in nature, based on North Carolina’s unique facts, it would no doubt bear relevance if North Carolina were seeking to return to an electoral system that was not in the mainstream of other States. It is not.

For all these reasons, Plaintiffs have failed to demonstrate that Defendants have violated § 2 of the VRA or the Fourteenth, Fifteenth, or Twenty-Sixth Amendments to the United States Constitution.

Continue reading for more analysis from Rick Hasen.

The chances on appeal may well depend upon the 4th Circuit panel draw. On this point, Hasen follows up: 4th Circuit Panel Which Partially Reversed NC Voting Decision in 2014 Likely to Get Case Back on Appeal.

Here is the 4th Circuit Court of Appeals Order expediting the appeal of this case, with briefing to be concluded by June 14.

The Reverend William Barber, the founder of the Moral Monday Movement and president of the North Carolina NAACP, has this op-ed in the New York Times. The Retreat From Voting Rights:

WillimaBarberOn Monday, Judge Thomas D. Schroeder of Federal District Court in Winston-Salem, N.C., upheld legislation passed in 2013 that imposed far-reaching restrictions on voting across this state, including strict voter-identification requirements. Judge Schroeder justified his decision by claiming that robust turnout in 2014 proved that the law did not suppress the black vote. But in reality, his ruling defended the worst attack on voting rights since the 19th century.

That attack began almost immediately after a 2013 Supreme Court decision, Shelby County v. Holder, which weakened Section 5 of the landmark Voting Rights Act. Section 5 required federal pre-approval of changes to voting laws in places with a history of discrimination, including parts of North Carolina. Within hours of that ruling, lawmakers in Raleigh filed H.B. 589, proposing some of the toughest voting rules in the country. Referring to Shelby, one sponsor expressed his relief that curtailing voting protections could move forward now that the “headache” of the Voting Rights Act had been removed. The Legislature passed the bill, and it was signed into law by Gov. Pat McCrory, a Republican.

The law eliminated voting rules that had enabled North Carolina to have the fourth best per capita voter turnout in the country. In 2012, 70 percent of black voters used early voting — and cast ballots at a slightly higher percentage than whites. Although black voters made up about 20 percent of the electorate, they made up 41 percent of voters who used same-day registration.

The North Carolina Legislature set out to change those figures and suppress minority votes. Its many impediments to voting all disproportionately affect African-American and Latino voters. None of their attacks would have survived pre-clearance under Section 5 of the Voting Rights Act. A Republican official defended the law this way: “If it hurts a bunch of lazy blacks that want the government to give them everything, so be it.”

There never was evidence of voter impersonation to justify the voter ID requirements established by the law. Yet the harm of those requirements is clear: At last count, 318,000 registered North Carolina voters — disproportionately African-Americans and Latinos — do not have a driver’s license or a state ID card.

But the term “voter ID” shortchanges the law’s broad scope and intent. It reduces the early voting period and eliminates same-day registration. It expands the ability to challenge voters at the polls. It eliminates a successful preregistration program for high school students.

In his ruling, Judge Schroeder, a George W. Bush appointee, said that there is “little official discrimination to consider” today. His nearly 500-page ruling is in keeping with the 19th-century opponents of “Negro rule” who argued that voter intimidation was not “official discrimination” because it was carried out by the Ku Klux Klan. In later years, poll taxes and literacy tests were also deemed not “official discrimination.”

North Carolina actually began rolling back voting protections in 2010, when the new Republican majority adopted a redistricting plan that packed black voters into a few districts and carefully limited the power of interracial coalitions. Racial gerrymandering elected a veto-proof Republican supermajority. When its champion, Thom Tillis, then ran for United States Senate in 2014, he won by more than 45,000 votes.

Since the Shelby decision, many states have been emboldened to implement laws like North Carolina’s. Republican-controlled election boards have greatly reduced the number of polling places. Wisconsin recently passed a bill creating major hurdles to voter registration campaigns. Alabama closed driver’s license offices in several counties with high percentages of black voters. But after an outcry, it sent part-time license examiners to those counties.

Allowing this kind of retrenchment on voting rights sets a dangerous precedent, especially in the South. In the 11 former Confederate states, there are 160 electoral votes, 22 United States Senate seats and 131 House seats. We cannot allow this level of political power to be determined by discriminatory voting laws.
The law eliminated voting rules that had enabled North Carolina to have the fourth best per capita voter turnout in the country. In 2012, 70 percent of black voters used early voting — and cast ballots at a slightly higher percentage than whites. Although black voters made up about 20 percent of the electorate, they made up 41 percent of voters who used same-day registration.

The North Carolina Legislature set out to change those figures and suppress minority votes. Its many impediments to voting all disproportionately affect African-American and Latino voters. None of their attacks would have survived pre-clearance under Section 5 of the Voting Rights Act. A Republican official defended the law this way: “If it hurts a bunch of lazy blacks that want the government to give them everything, so be it.”

There never was evidence of voter impersonation to justify the voter ID requirements established by the law. Yet the harm of those requirements is clear: At last count, 318,000 registered North Carolina voters — disproportionately African-Americans and Latinos — do not have a driver’s license or a state ID card.

But the term “voter ID” shortchanges the law’s broad scope and intent. It reduces the early voting period and eliminates same-day registration. It expands the ability to challenge voters at the polls. It eliminates a successful preregistration program for high school students.

In his ruling, Judge Schroeder, a George W. Bush appointee, said that there is “little official discrimination to consider” today. His nearly 500-page ruling is in keeping with the 19th-century opponents of “Negro rule” who argued that voter intimidation was not “official discrimination” because it was carried out by the Ku Klux Klan. In later years, poll taxes and literacy tests were also deemed not “official discrimination.”

North Carolina actually began rolling back voting protections in 2010, when the new Republican majority adopted a redistricting plan that packed black voters into a few districts and carefully limited the power of interracial coalitions. Racial gerrymandering elected a veto-proof Republican supermajority. When its champion, Thom Tillis, then ran for United States Senate in 2014, he won by more than 45,000 votes.

Since the Shelby decision, many states have been emboldened to implement laws like North Carolina’s. Republican-controlled election boards have greatly reduced the number of polling places. Wisconsin recently passed a bill creating major hurdles to voter registration campaigns. Alabama closed driver’s license offices in several counties with high percentages of black voters. But after an outcry, it sent part-time license examiners to those counties.

Allowing this kind of retrenchment on voting rights sets a dangerous precedent, especially in the South. In the 11 former Confederate states, there are 160 electoral votes, 22 United States Senate seats and 131 House seats. We cannot allow this level of political power to be determined by discriminatory voting laws.

The law eliminated voting rules that had enabled North Carolina to have the fourth best per capita voter turnout in the country. In 2012, 70 percent of black voters used early voting — and cast ballots at a slightly higher percentage than whites. Although black voters made up about 20 percent of the electorate, they made up 41 percent of voters who used same-day registration.

The North Carolina Legislature set out to change those figures and suppress minority votes. Its many impediments to voting all disproportionately affect African-American and Latino voters. None of their attacks would have survived pre-clearance under Section 5 of the Voting Rights Act. A Republican official defended the law this way: “If it hurts a bunch of lazy blacks that want the government to give them everything, so be it.”

There never was evidence of voter impersonation to justify the voter ID requirements established by the law. Yet the harm of those requirements is clear: At last count, 318,000 registered North Carolina voters — disproportionately African-Americans and Latinos — do not have a driver’s license or a state ID card.

But the term “voter ID” shortchanges the law’s broad scope and intent. It reduces the early voting period and eliminates same-day registration. It expands the ability to challenge voters at the polls. It eliminates a successful preregistration program for high school students.

In his ruling, Judge Schroeder, a George W. Bush appointee, said that there is “little official discrimination to consider” today. His nearly 500-page ruling is in keeping with the 19th-century opponents of “Negro rule” who argued that voter intimidation was not “official discrimination” because it was carried out by the Ku Klux Klan. In later years, poll taxes and literacy tests were also deemed not “official discrimination.”

North Carolina actually began rolling back voting protections in 2010, when the new Republican majority adopted a redistricting plan that packed black voters into a few districts and carefully limited the power of interracial coalitions. Racial gerrymandering elected a veto-proof Republican supermajority. When its champion, Thom Tillis, then ran for United States Senate in 2014, he won by more than 45,000 votes.

Since the Shelby decision, many states have been emboldened to implement laws like North Carolina’s. Republican-controlled election boards have greatly reduced the number of polling places. Wisconsin recently passed a bill creating major hurdles to voter registration campaigns. Alabama closed driver’s license offices in several counties with high percentages of black voters. But after an outcry, it sent part-time license examiners to those counties.

Yet these attacks on democracy have not been a centerpiece issue in this year’s elections.

* * *

Half a century [after the March on Selma], we again struggle for unfettered access to the ballot, especially for the most vulnerable among us. The Voting Rights Advancement Act, which would restore the protections stripped away by Shelby, has stalled in the Senate Judiciary Committee. Strom Thurmond was able to filibuster the 1964 Civil Rights Act for only 24 hours. But today’s extremists have buried voting rights here for nearly three years. It is time for the silence to end.

The New York Times also editorializes, Voting Rights Lose in North Carolina.

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