By Tom Hagy
ON July 29,
2016, a federal appeals court struck down a North Carolina Voter ID Law designed
to make African Americans jump through hoops to cast a vote. The case is called
NAACP v.
McCrory, and was decided by the U.S. Court of Appeals for the Fourth
Circuit. I was thrilled. “Hey," I thought "good
news!” While others shared in my glee, some did not. “Hey,” one of my friends commented, “I have
to show my ID to vote in Ohio. So what’s your point, Tom?” It's a valid question, so I
thought I’d share what the opinion said and the underlying facts, perhaps with
color commentary, to explain not my point, but that of a panel of federal
judges.
Here are some
things you need to know, if you don’t already:
- The Voting Rights Act of 1965 required certain southern states to pre-clear any changes to voting rules. Why? Because of historical efforts by whites to keep blacks from voting. “North Carolina has a long history of race discrimination generally and race-based vote suppression in particular,” the Fourth Circuit wrote.
- Since 2000, and most definitely in presidential election years like 2008 (when our nation’s first African American was voted into office), African American registration and voting surged, so much so that North Carolina actually became a swing state. During 2000 and 2012 – during which identification was not required to vote – African American voter registration swelled by more than 50%, and voter turnout jumped from 42% in 2000 to 72% in 2008.
- In North Carolina, to be African American pretty much means you’re also a Democrat. Not always, but really, really often. Really, really often.
- On June 25, 2013, in a case called Shelby County, the U.S. Supreme Court said these pre-clearance requirements were outdated and struck them. Chief Justice John Roberts wrote the opinion. Again, that was on June 25, 2013. (RGB commented that getting rid of the law was like saying you can put your umbrella away when it is raining because you’re not getting wet.)
- On June 26, 2013, otherwise known as “the following day,” the North Carolina General Assembly (predominantly white and Republican) passed SL-2013-381 which eliminated the means by which certain North Carolinians (especially black citizens) registered and voted. In justifying these changes the state cited rampant voter fraud and the need for efficiency and consistency.
Now, let’s do a shallow dive into how African Americans in North Carolina vote – according to data the GOP-led Legislature requested – and what the Voter ID Law did.
African Americans disproportionately:
- Lack current drivers’ licenses (not everyone can get them, especially poor people). The Voter ID Law made them mandatory, but rejected other forms of government-issued ID that African Americans disproportionately do possess, such as expired drivers’ licenses, or other state-issued IDs, expired or not. The Legislature attempted to exclude IDs issued for public assistance, an ID disproportionately held by African Americans.
- Use provisional out-of-precinct ballots, so the General Assembly blocked their use.
- Utilized early Sunday voting, so the General Assembly wanted to eliminate it, citing the need for consistency, yet left its use up to each county’s discretion to do whatever it wanted.
- Take advantage of same-day registration. Citing the administrative difficulty of administering this, the General Assembly banned it.
What the Court Held
The Fourth
Circuit U.S. Court of Appeals, which sits in Richmond, Va., is the appeals
court above the U.S. District Courts in the states in the Fourth Circuit, which
includes North Carolina, and directly below the U.S. Supreme Court. When the
Court of Appeals rules it does so with three-judge panels. The next step is to
ask a whole bank of judges from the court to reconsider what the three-judge panel held, but failing that you
have to go see The Supremes, if they will have you, baby love.
In the case on appeal, the District Court held that the Legislature did not enact the new voter laws with “discriminatory intent,” and so ruled in favor of the new rules. But, the Court of Appeal determined, the district judge “missed the forest for the trees.” The forest being, the panel explained, the “inextricable link between race and politics” in North Carolina. Simply put, to be black in North Carolina pretty much means you’re a Democrat; to be Republican generally means you’re white.
In the case on appeal, the District Court held that the Legislature did not enact the new voter laws with “discriminatory intent,” and so ruled in favor of the new rules. But, the Court of Appeal determined, the district judge “missed the forest for the trees.” The forest being, the panel explained, the “inextricable link between race and politics” in North Carolina. Simply put, to be black in North Carolina pretty much means you’re a Democrat; to be Republican generally means you’re white.
Therefore, the
court held, in North Carolina, restricting the voting mechanisms and procedures
that most heavily affect African Americans will benefit one political party and
disadvantage the other.
The timing of
the Voter ID Law was most telling. The U.S. Supreme Court
eliminated the Voting Rights Act requirement that certain southern states, you
know, kind of check in before making any changes to voting rules, on June 25,
2013. The following day, on June 26, 2013
(did I mention that was the following day?) the Legislature acted with the swiftness
of Olympic multi-gold-medalist Usain Bolt,
something rarely seen in state houses, and certainly not seen in the U.S.
Congress (unless they are giving themselves a raise). The white-Republican-dominated
Legislature leaped into action with break-neck speed to pass laws designed to restrict the African-American vote. Normally changes like this require public scrutiny
and debate and, well, time, but the efficiency-minded GOP leadership made sure there would be none of that.
“Instead, this
sequence of events -- the General Assembly’s eagerness to, at the historic
moment of Shelby County’s issuance,
rush through the legislative process the most restrictive voting law North
Carolina has seen since the era of Jim Crow -- bespeaks a
certain purpose,” the Court of Appeals wrote.
Could this have
just been a coincidence? Could this have just been an unintended consequence of good intentions? I mean, the GOP said it was fighting voter fraud, which is
bad. And making voting more efficient, which is good. Right?
The answer would
be “golly no.” The court noted that the Republican Legislature itself requested data on the methods by
which different races voted. And, as the GOP’s luck would have it, white people
and black people in North Carolina, generally speaking, have different voting
methods. With that knowledge in hand the Legislature went on to target
African-American voters with “almost surgical precision” and attempted to
justify them as “cures for problems that did not exist,” e.g. rampant voting
fraud, voter confusion and inefficiency, the appellate panel found.
Just ‘Preferences and Conveniences’
The District Court
had said that the provisions eliminated happened to be those that were merely
“preferred” or were simply “more convenient” for African American voters. The
Fourth Circuit dispatched that characterization with a single sentence: “Since African Americans in the state are
more likely to move, be poor, less educated, have less access to transportation,
and experience poor health – these were not mere preferences, but necessities.”
Addressing the
state’s voter fraud justification,
the Fourth Circuit said the state failed to present a single
instance of in-person voter fraud. Yet, the court said, the Legislature only
required photo ID for in-person voting, and not absentee voting. There was evidence of alleged mail-in absentee voter fraud, which is
used disproportionately by white voters, yet no photo ID was required to vote
by mail. Further underscoring the state’s weak rationale, the Voter ID Law said
that if you didn’t have a drivers’ license you could apply for a free voter
card using two of the very same forms of ID excluded
by the law. Freaky. The ID requirement, which made African Americans jump over multiple
hurdles to get to a ballot box, was enacted to address “irrational restrictions”
unrelated to combating fraud, the Fourth Circuit found.
In two
instances, the Legislature even ignored the recommendations of the state
Election Board.
Arguing in favor of knocking out early voting days, the state said it wanted consistency among counties. It left the early voting decision to each county. That meant, the Fourth Circuit explained, that the counties would remain inconsistent. It also meant that suppressing black votes could be accomplished county-by-county, you know, where it's needed most. In some cases, African American churches run programs where they drive the elderly, the disabled, and the poor to the voting precincts. Can you imagine? Even the state Election Board wanted early voting days for efficiency purposes. But the Legislature struck them, an act the Fourth Circuit determined disproportionately hampered black voters.
Arguing in favor of knocking out early voting days, the state said it wanted consistency among counties. It left the early voting decision to each county. That meant, the Fourth Circuit explained, that the counties would remain inconsistent. It also meant that suppressing black votes could be accomplished county-by-county, you know, where it's needed most. In some cases, African American churches run programs where they drive the elderly, the disabled, and the poor to the voting precincts. Can you imagine? Even the state Election Board wanted early voting days for efficiency purposes. But the Legislature struck them, an act the Fourth Circuit determined disproportionately hampered black voters.
Same-day registration was difficult to administer, the state
said. Probably so, but the state ignored alternatives that would have
alleviated these headaches. The Election Board hailed same-day voting as a
success and said that while there were some conflicts between same-day
registration and mail verification, same-day “does not result in voters who are
any less qualified to vote than traditional registrants.” It said that more
than 97% of same-day registrations passed the mail verification process. The
number could have been closer to 100% were it not for some counties delaying
the process.
Arguing to
eliminate out-of-precinct voting, the state said it wanted to move the law back
to the way it once was. Realizing that "because we wanted to" wasn't a meaty argument, the state later concocted the argument that eliminating this method
helped process elections more efficiently. Out-of-precinct voting is necessary for poorer people who have to move more often
and cannot always physically get to their precinct to cast their vote. The
court called the state’s argument both weak and an “after the fact
rationalization," adding, “The state’s
real motive was obvious."
As for the
state’s decision to end pre-registration
for young voters-to-be, the court called this “another troubling mismatch with [the
state’s] proffered justifications.” The General Assembly “contrived a problem
in order to impose a solution.” Too confusing for young voters? The only
confusion cited was that of one Republican Senator’s teenage son. The District Court said
this argument didn’t hold water and, in fact, made registration more complex
and confusing. The Court of Appeal agreed.
What's the Deal?
So, is the GOP-controlled North Carolina General Assembly full of bigots? Nah. It was just using its power to keep itself in power. African-American voting rights were merely collateral damage.
So, is the GOP-controlled North Carolina General Assembly full of bigots? Nah. It was just using its power to keep itself in power. African-American voting rights were merely collateral damage.
To that point, the
Fourth Circuit said it doesn’t think the General Assembly “harbored racial
hatred or animosity,” but given its history, the surge in black voting, knowing
that blacks are Democrats, and the speed with which the Generally Assembly
built its barriers at the first opportunity to do so – the General Assembly used Bill
SL-2013-381 to entrench itself by targeting black voters who would not vote
Republican. “Even if done for partisan ends, that constituted discrimination.”
“Using race as a
proxy for party may be an effective way to win an election. But intentionally
targeting a particular race’s access to the franchise because its members vote
for a particular party, in a predictable manner, constitutes discriminatory
purpose. This is so even absent any evidence of race-based hatred and despite
the obvious political dynamics. A state legislature acting on such a motivation
engages in intentional racial discrimination in violation of the Fourteenth
Amendment and the Voting Rights Act.”
So where does
that leave us? Well, the state isn’t giving up. It has asked the Supreme Court
to freeze parts of the Fourth Circuit’s decision that trounced on what the
state called a “common sense” model law that is being used without challenge by other
states. And, according
to CNN, the state has enlisted the help of a big gun in the world of
Supreme Court argument: former Solicitor General Paul Clement.
CNN quoted
election law expert Rick Hasen who explained in his Election Law Blog that because the state
did not appeal the same-day voter registration and out-of-precinct voting, that
those would remain in place for the upcoming election. He called that a win for
the voters who challenged the law.
Bottom Line
So the question
was: “What’s your point, Tom?”
Here are three:
#1. The Republican-controlled North Carolina Legislature saw what methods black voters used to vote and, because they are predominantly Democrats, put a law in place that eliminated those methods. That's a violation of the Fourteenth Amendment and the Voting Rights Act.
#2. You don’t get to block a race of people from voting so you can stay in power. I would say this extends beyond race. I don’t think the party in power should be permitted to enact laws that keep them in power. That's a decision for the electorate.
#3. You don’t have to be racist to perform racist acts. In fact, you might argue that it’s better for someone to be quietly racist and do nothing to harm anyone, than someone who is not racist but merely acts like one by crawling over the backs of a racial group for their own gain.
