October 9, 2014 Update:
On October 8, the US Supreme Court handed down the final word about voting for this fall’s elections in North Carolina. It upheld the District Court’s decision not to put any of our new voting laws on hold and overturned the Circuit Court’s decision which would have allowed same-day registration during early voting and out-of-precinct provisional voting on Election Day. So we are back to where we started with the voter suppression provisions of H 589 adopted by the General Assembly and signed by the Governor late in last year’s session.
This fall’s decisions have been just on the procedural question of whether the changes in voting laws would be in effect this fall while the changes themselves are being challenged in court. Those substantive challenges are scheduled to be heard in the middle of 2015. Keep in mind, too, that none of this affects the photo ID question. Voters do not have to show a photo ID in order to vote this year.
Until the legal dust settles in courthouses and judges’ conference rooms, there’s no telling whether North Carolinians who want to vote in the upcoming general election will have to be registered by October 10. That’s the deadline set by the General Assembly in the 2013 law that did away with so-called same-day registration – the process by which voters could both register and cast their ballots on the same day during the early voting period prior to Election Day.
Responding to complaints by civil rights groups and others, a federal appeals court now has told the state to go ahead and offer same-day registration after all. Attorneys for the state have asked the US Supreme Court to overrule that order. It’s fair to say that people on both sides of the dispute will be sitting on the edge of their seats until the high court decides what to do. We shouldn’t have to wait long to find out.
If same-day registration isn’t allowed, what’s the harm? That was a central question addressed by the panel of three judges from the 4th US Circuit Court of Appeals.
In a 2-1 opinion written by Judge James A. Wynn Jr. – who happens to be a North Carolinian deeply familiar with the state’s politics, laws and history – the conclusion is hammered home: Because the option to register and vote on the same day has been especially popular among African-Americans, doing away with that option amounts to erecting a higher hurdle for black voters than for whites.
In other words, it’s racially discriminatory, and thus in violation of the federal Voting Rights Act as well as the Constitution. The same can be said of the other rule in the 2013 law set aside the by the 4th Circuit panel. That rule aims to prevent voters who want to vote somewhere other than their assigned precinct from casting a provisional ballot, to be counted once their address is verified.
Again, the court noted that black voters are especially likely to take advantage of that option because they may change residences more often than their white counterparts.
Harms and hardships
In weighing whether to grant an injunction that would keep prior rules in place for the election to be decided on Nov. 4, the court had to consider several factors, including the extent of the harm and any hardship placed on the state because of rules being changes this late in the going. On both of those counts, the judges’ findings favored the plaintiffs seeking the injunction.
They went the other way on the plaintiffs’ request to restore 17 days of early voting; the law cuts the early voting period to 10 days, and at least for now that’s how it will remain.
What’s perhaps most significant in the long run is that with regard to same-day registration and out-of-precinct voting, Judge Wynn in his majority opinion (joined by Judge Henry Floyd of South Carolina) concluded that challenges in those areas met another key test: They’re likely to succeed when they’re heard in a US District Court trial scheduled for next summer.
To explain their reasoning, the judges presented what has to rate as a damning critique of the 2013 law as an exercise in racial discrimination driven by political gamesmanship.
They zeroed in on the curious route taken by the law, which originated as a measure called House Bill 589. When first approved by the House in April of 2013, the bill imposed a straightforward, although strict, requirement for voters to show photo identification at the polls, starting in 2016.
That requirement is troubling from the social justice perspective embraced by the NC Council of Churches and its allies, because a lack of photo ID such as a driver’s license or passport is more common among vulnerable groups such as the poor, the elderly and racial minorities. And supporters’ rationale for the rule – that it will help deter voter fraud – glosses over the fact that instances of such fraud are very rare. What it actually does is inject an unnecessary hassle component into voting in a way that bids to cut into the number of votes cast by people who don’t already have a suitable ID.
That said, HB 589 took a dramatic turn for the worse in the Senate. The judges noted the timing: The US Supreme Court in the spring of 2013 was considering whether to weaken the Voting Rights Act.
On June 25 the court issued its ruling in a case known as Shelby County, Ala., v. Holder. States that had been required under Section 5 of the Voting Rights Act to submit election law changes for “preclearance” to the US Justice Department, vetting the changes for compliance with the Act, would no longer have to do that. North Carolina, with 40 of its 100 counties falling under the preclearance requirement because of past histories of discrimination, was off the hook.
“The very next day,” Judge Wynn wrote, “Senator Thomas Apodaca, Chairman of the North Carolina Senate Rules Committee, publicly stated, ‘So, now we can go with the full bill.’”
When the “full bill” was finally disclosed by Republican legislative leaders in late July, it had mushroomed to 57 pages and amounted to a wish-list of provisions favoring conservative candidates.
“The facts of this case attest to the prophylactic success of Section 5’s preclearance requirements,” Wynn stated. “It appears that Section 5, which required covered jurisdictions to prove that a change in electoral law had neither ‘the purpose [nor] the effect of denying or abridging the right to vote on account of race or color,’ was the only reason House Bill 589’s sponsors did not reveal the ‘full bill’ to the public until after the Shelby County decision came down.”
That won’t fly
The bill was signed into law by Gov. Pat McCrory on Aug. 12, 2013 after the House – spurning complaints by African-American members of racially oriented voter suppression — agreed to the Senate’s overhaul. Multiple lawsuits were immediately filed, alleging discrimination against black voters, Latinos and the young.
The 4th Circuit judges, even when they disagreed over the issuance of an injunction to restore same-day registration and out-of-precinct balloting, collectively took a dim view of the law when weighed against the Voting Rights Act’s anti-discrimination mandates.
“Appellants will have the opportunity at trial to demonstrate precisely how [the law] burdens voters in North Carolina,” wrote Judge Diana Motz of Maryland, dissenting on the injunction. “And if Appellants can show that the multiple provisions of that law work in tandem to limit voting opportunities, I am confident that the district court will consider the totality of that burden. A law that adopts a ‘death by a thousand cuts’ approach to voting rights is no more valid than a law that constricts one aspect of the voting process in a particularly onerous manner.”
As the Council of Churches’ Governing Board has asserted in its own statement of principle, the right to vote is “a primary means in a republic to allow the dispossessed, the poor, and racial and ethnic minority groups a voice in the public square.” The nation’s history of civil rights progress has hinged largely on expanding the right to vote among groups whose voices too long were muffled or silenced altogether.
Whatever the outcome of the legal fray leading up to the election in November, there’s reason to hope that the right to vote in North Carolina – threatened with erosion by a politically calculating legislative majority and compliant governor – will be affirmed by thoughtful judges applying the law in the public interest.