Election Law’s Racial Twist

It’s easy to imagine the response from legislative leaders to a new scholarly look at the impacts of North Carolina’s recent election law changes: “Get over it!”

Those same Republican legislators would be hard-pressed to argue that the changes won’t hold down vote totals among people who these days tend to vote Democratic. What the new study does is crunch the numbers to describe the disproportionate effect on voters who are African-American.

To many, including civil rights groups that are suing to try to block the changes, the study will seem to offer solid evidence of racial discrimination that should be impermissible under federal law and the Constitution. Of course that’s not how the legislative chiefs see it. They’d say, so what if they’ve tilted the scales a bit to make it harder on their partisan foes? Some court rulings suggest they’re allowed to do that.

Still, what remains for the courts to decide is whether it’s OK to use race as a proxy when the intent is to target the opposition party. The study by Michael C. Herron and Daniel A. Smith makes it clear that North Carolina’s new voter ID law and other related provisions can be expected to disadvantage black voters more than white.

The dispute has the hallmarks of a partisan dogfight. At the same time, whenever laws are tilted against the interests of a group that’s identifiable by race, larger issues of justice come into play. That’s especially so in a state and country where discrimination against African-Americans, even brutal discrimination, was long a tragic part of the social landscape. During the painful decades of Jim Crow, it was in fact racists in the Democratic Party who tightened their hold on power throughout the South by keeping blacks from voting.

Making it marginally harder or less convenient for black citizens to vote obviously doesn’t rank with the kinds of repression inflicted upon them in years past. But it hampers their ability to speak through the ballot box, and thus to help shape the political discourse in line with their interests and preferences.

The likely upshot: fewer laws and policies intended to further opportunity for citizens who too often find themselves outside the American dream, looking in.

Not so early

Herron, professor of government at Dartmouth, and Smith, professor of political science at the University of Florida, looked at detailed North Carolina voter records for five statewide elections from 2008 through 2012. They focused on patterns of early voting among whites and blacks, and on the question of who does and doesn’t have the kinds of photo ID that, beginning in 2016, people will have to show in order to cast a vote at the polls. (Absentee voters won’t have to comply with a photo ID requirement.)

North Carolina in recent years has allowed for 17 days of early voting – a popular choice for all voters, who can avoid crowded Election Day polls and can vote when it suits their schedules. The General Assembly now has reduced the early voting period to 10 days, although it agreed to a Democratic-sponsored provision that voting sites must remain open for the same total number of hours.

Data from the election cycles analyzed by Herron and Smith show that blacks used the early voting option more heavily than did whites – and, in particular, were more likely to vote during the earliest week of the period. It’s no leap to conclude that trimming back from 17 to 10 days will tend to cut into voting by black citizens, although how deeply is anyone’s guess. Critics of the election law changes, such as the state chapter of the NAACP, have been making these points all along. Now they can cite numbers drawn from the state’s own database.

The most controversial change, pushed through last summer by the Republican-controlled legislature and signed into law by Republican Gov. Pat McCrory, involves the photo ID rule. Advocates described the rule as a means of countering fraud at the polls, although it’s never been shown that fraud by impersonation, which an ID requirement would help deter, is a significant problem.

Opposition is rooted in the fact that some registered voters not only lack the necessary government-issued IDs but also would have to go to some trouble and expense to get them. These voters – without driver’s licenses, non-operator’s identity cards, passports and so forth – tend to be among the state’s poorer citizens, a segment of the electorate that’s inclined to vote Democratic. Given the unfortunate linkage between economic status and race, they also include a disproportionate number of blacks.

The ID gap

Herron and Smith examined two attempts by the State Board of Elections last year to quantify the number of registered voters lacking IDs issued by the Division of Motor Vehicles. In one such exercise, 31.2 percent of the “unmatched” voters were black, and in the other 33.8 percent. Since 22 percent of the state’s registered voters are black, the discrepancy is clear.  Further, the unmatched black voters tend to be younger than their white counterparts, so fewer would be able to take advantage of slightly more lenient rules for voters older than 70.

The new law also ends citizens’ ability to register to vote at the same time they go to the polls for early voting. And it ends pre-registration of people who won’t turn 18 by the time of the next election – a privilege that’s been available to 16- and 17-year-olds and that has been offered in high schools to encourage civic engagement. Guess what: Both of those changes also will have a greater impact among blacks, if the professors’ analysis holds true.

The U.S. Department of Justice, charged with enforcing the federal Voting Rights Act, developed its own factual basis for bringing a court challenge to the new North Carolina law. It was hardly a coincidence that the law was enacted only after the Supreme Court nullified the Voting Rights Act provision that would have made North Carolina gain federal approval for any such election law changes.

Now, Justice and any of the other plaintiffs who want to block the changes will be able to paint an even fuller picture of how black voters are being affected. When discrimination against members of a certain party becomes discrimination against members of a certain race, it seems fair to conclude that a line has been crossed – a line too reminiscent of times when black Americans could be treated like dirt whenever it suited the whites who wrote the rules.