Even for ardent voting rights advocates, there’s little comfort to be gained from a federal appeals court’s finding that the N.C. General Assembly engaged in a multifaceted scheme to discriminate against African-American voters.
Think about it: A half-century after the federal Voting Rights Act was passed, after decades of struggle and progress to secure the franchise for black citizens, with many Americans now taking for granted that minorities no longer face significant obstacles to full participation in civic life, North Carolina finds itself nailed up as a state where the laws were twisted against black voters. The perpetrators’ aim? To gain and hold power.
Embarrassing isn’t the half of it. But if comfort has to be in short supply, a sense of vindication runs strong and deep.
It could scarcely have been more obvious what the Republican-controlled legislature was attempting to do, with its maneuvering to hold down the votes cast by Democratic-leaning African-Americans. Advocates for those voters, and for the principles of full and equal voting rights in general, were quick to challenge the 2013 law making it harder for many citizens to cast their ballots.
Legislators and Republican Gov. Pat McCrory pushed back with their arguments that new requirements for voters’ photo identification and other restrictive changes were “common-sense” measures to deter fraud and make elections more “orderly.”
A federal trial judge in Winston-Salem ruled in their favor, finding that they had breached no constitutional boundaries. But a three-judge panel of the Richmond-based 4th U.S. Circuit Court of Appeals, which considers cases from North Carolina, Virginia and three other states, marched the law’s proponents to the legal woodshed.
“Although the new provisions target African-Americans with almost surgical precision,” the judges wrote, “they constitute inapt remedies for the problems assertedly justifying them and, in fact, impose cures for problems that did not exist.” Their bottom line: The law must be shelved.
The case may not be definitively settled, because further appeals are possible. But as things now stand, it’s the challengers who can say, “Looks like we had it right all along!”
And truth be told, there is some comfort to be derived when the federal judiciary comes down so forcefully to ensure voters’ equal rights – affirming once again that discrimination on the basis of race cannot and will not be tolerated.
Big picture told the tale
The Circuit Court panel gave District Judge Thomas D. Schroeder what amounted to an E for Effort, complimenting the thoroughness of the opinion (485 pages!) he wrote after conducting a trial on challenges to the election law changes.
But in giving the legislation a thumbs-up, the panel tartly observed, Schroeder “seems to have missed the forest in carefully surveying the many trees.”
They agreed with those suing to block the law that the new voter ID rule placed a special burden on African-American voters or would-be voters, who are less likely than whites to have one of the acceptable government-issued photo IDs.
Similarly, they found that blacks have tended to make greater use of early voting, same-day registration and out-of-precinct voting – measures enacted during recent years (with Democrats broadly in favor) to increase voter participation generally.
While legislators may have been entitled to revisit those changes, the judges concluded that they did so in a way specifically intended to put a damper on black voter turnout.
Whether they were motivated by racial animus was beside the point, and the judges stopped short of making that accusation. But even if the real goal was to cut down on the number of Democratic votes, trying to achieve that goal by hindering black voters could not be permitted.
“Using race as a proxy for party may be an effective way to win an election,” the appellate judges wrote. “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 … in violation of the Fourteenth Amendment and the Voting Rights Act.”
‘Full bill’ was flawed
The law at issue started out as a straightforward voter ID bill, with some Democratic support. The declared rationale was to deter voter fraud – although impersonation of another voter in an already felonious attempt to cast a fraudulent ballot appears to be a rare occurrence indeed.
As the appellate panel took care to point out, the bill then took a curious path signaling its true purpose. None of the bill’s critics, including those of us at the Council of Churches, thought it a coincidence that its scope was vastly enlarged on the heels of a pivotal 2013 U.S. Supreme Court decision, Shelby County (Ala.) vs. Holder.
That decision abolished the requirement under the Voting Rights Act that North Carolina and certain other states with a history of racial discrimination obtain federal approval before altering election laws. Once that hurdle was removed, Republican legislators unveiled what a key senator called “the full bill” with a menu of changes. They included a smaller set of acceptable IDs — raising the chances that poorer citizens who didn’t have driver’s licenses, for example, would be shut out — and the scrapping of same-day registration during early voting.
The bill was rushed to passage in a manner that “strongly suggests an attempt to avoid in-depth scrutiny,” the panel of judges commented, and the trial judge “erred in accepting the State’s efforts to cast this suspicious narrative in an innocuous light.”
The panel credited Judge Schroeder with recognizing that North Carolina’s black residents “are disproportionately likely to move, be poor, less educated, have less access to transportation, and experience poor health.”
They went on: “These socioeconomic disparities establish that no mere ‘preference’ led African-Americans to disproportionately use early voting, same-day registration, out-of-precinct voting, and preregistration. Nor does preference lead African-Americans to disproportionately lack acceptable photo ID.
“Yet the district court refused to make the inference that undeniably flows from the disparities it found many African-Americans in North Carolina experienced. Registration and voting tools may be a simple ‘preference’ for many white North Carolinians, but for many African-Americans, they are a necessity.”
Putting their findings in a nutshell, the three jurists said, “Our conclusion does not mean, and we do not suggest, that any member of the General Assembly harbored racial hatred or animosity toward any minority group.
“But the totality of the circumstances — North Carolina’s history of voting discrimination; the surge in African-American voting [facilitated by measures that the law rolled back]; the legislature’s knowledge that African-Americans voting translated into support for one party; and the swift elimination of the tools African-Americans had used to vote and imposition of a new barrier at the first opportunity to do so — cumulatively and unmistakably reveal that the General Assembly used Session Law 2013-381 to entrench itself.
“It did so by targeting voters who, based on race, were unlikely to vote for the majority party. Even if done for partisan ends, that constituted racial discrimination.”
The panel’s main findings were authored by Judge Diana Gribbon Motz of Maryland, joined by Judges James A. Wynn Jr. of North Carolina and Henry F. Floyd of South Carolina. Motz was an appointee of President Clinton. Wynn, who is African-American, was appointed by President Obama. Floyd was named a District Court judge by President George W. Bush and elevated to the 4th Circuit by Obama. (All such judicial posts require Senate confirmation.)
The two top Republicans in the legislature, Senate President Pro Tem Phil Berger and House Speaker Tim Moore, blasted the ruling by “three partisan Democrats.”
“ … We can only wonder if the intent is to reopen the door to voter fraud,” they said, “potentially allowing fellow Democrat politicians like Hillary Clinton and Roy Cooper to steal the election.” They vowed to appeal to the Supreme Court.
McCrory in a similar vein accused “three Democratic judges” of “undermining the integrity of our elections while also maligning our state.”
The charge of partisanship, while not surprising, is unfortunate in its corrosive effect on the public’s regard for the judiciary. Perhaps in their appeal, if it materializes, Republican leaders will explain why the appellate ruling was wrong on the merits – explain it if they can – as opposed to painting these three experienced and respected judges as corrupt.
Brakes on a pattern
Berger, Moore and McCrory might also consider that when they attack as partisan judges with whom they disagree, what are people to think when and if judges side with them? Are those judges calling the law as they see it, or are they also merely partisan hacks?
Yes, there are ideological differences among judges that cause them sometimes to align with party positions. But it shames the accusers more than those being accused when those alignments are said to reflect party loyalties and not sincere efforts to weigh cases according to judges’ independent reasoning and views.
Perhaps the law’s champions feel as if they have to appeal, if for no other reason to save face. But their chances of success have to be graded as marginal.
By insulting the judges who issued the adverse ruling, they’ve practically dared other 4th Circuit judges who might hear an appeal to the full court to affirm their colleagues’ integrity.
Further, the current 4-4 ideological split on the Supreme Court suggests that the appellate court ruling would hold if it reached that level — since a Supreme Court tie is insufficient to overturn the decision of a lower court. Another, less welcome possibility is that the decision could be stayed until a further appeal were argued.
The ruling in the North Carolina case fleshes out a recent national pattern in which federal judges have reined in various efforts by Republican-led legislatures to tilt the electoral scales in their party’s favor. The crux of those decisions has been that such laws are discriminatory, in violation of the Constitution’s guarantees of equal protection and of equal access to the polls.
North Carolina’s shame is that its legislature and governor eagerly took part in those efforts. Now it can feel relief, if not pride, that honorable and independent judges – including Jim Wynn, a North Carolinian through and through – have articulated what went wrong and declared that it must stop. As the Council of Churches long has recognized, there’s nothing partisan about the principle that our form of government works best when a broad cross-section of citizens are able to help choose their leaders.