The North Carolina General Assembly’s Republican majority is down to what looks to be its last-ditch defense of the voter ID law it rammed through at the tail end of 2018: Stop complaining because it could be worse!
That was the thrust of the argument mounted by GOP legislative chiefs as they tried to fend off yet another lawsuit accusing them of discriminating against African-American voters to gain an advantage at the polls. News flash – it isn’t working. Again.
The state Court of Appeals, in a ruling from a three-judge panel as is customary, blocked the 2018 law from taking effect unless and until the legislature prevails in a trial on the lawsuit’s merits. The preliminary injunction issued on Feb. 18 reflects the judges’ finding that voting rights advocates who brought the suit likely would be the winners if and when a trial is held.
The ruling’s upshot is to affirm that for the foreseeable future, North Carolinians hoping to vote in person will not have to present a government-issued photo ID or make excuses as to why they don’t have one or can’t produce it.
The nub of the controversy, of course, is that some would-be voters are less likely than others to have such a photo ID because of reasons that have nothing to do with their standing as solid citizens whose eligibility to vote otherwise would not be in question. That demographic includes African-Americans – who, as Republican strategists have duly noted, tend to favor Democratic candidates, perceived by many black voters as being more attuned to their economic and social justice priorities.
Thus, forcing someone to show a photo ID in order to vote amounts to a classic technique of partisan voter suppression. Toward its goal of holding down the number of votes cast for Democrats, it erects obstacles to voting that in practice are higher for blacks. And that runs afoul of constitutional guarantees of equal protection under the laws.
But wait, the voter ID law’s architects say. Remember our first effort to get such a law on the books, back in 2013? Remember how strict we were with the kinds of IDs that would be accepted?
Remember how hard it would have been for someone to vote without a photo ID, even if that person had a perfectly good excuse? Why, compared with that law – struck down in federal court in part because of those very problems – the latest version, known as Senate Bill 824, is positively warm and fuzzy. At least that’s at the heart of the supporters’ contentions.
They also lean on the fact that in the elections of November 2018, North Carolina voters approved an amendment to the state constitution requiring someone who wants to cast an in-person ballot to show a photo ID.
A referendum on the amendment had been authorized after the first attempt at photo-based voter ID, part of the 2013 package of election law changes known as House Bill 589, was blocked by the 4th U.S. Circuit Court of Appeals. An ID rule was one of the bill’s components that the court memorably said had targeted black voters “with almost surgical precision.”
The new amendment gave the legislature some justification for taking another whack at voter ID, although if truth be told the measure’s ambiguity made it scarcely a ringing endorsement of the concept. The amendment didn’t specify how a new ID requirement would work, leaving that to the legislature. All it said about how voters lacking an ID would be treated was that legislators could make exceptions to the rule.
Here’s where the plot thickened. In the same 2018 elections, Republicans lost enough seats so that their veto-proof majorities in both the state House and Senate were set to vanish when newcomers took office in January, 2019. So they had only a brief period to enact a new voter ID law that could withstand a veto by Democratic Gov. Roy Cooper. When Cooper did in fact veto the bill, he was promptly overridden.
Judge Toby Hampson of the Court of Appeals, joined in his opinion by Judges John Arrowood and Allegra Collins, took a dim view of the accelerated schedule. “…The quick passage of S.B. 824 was undertaken with limited debate and public input and without further study of the law’s effects on minority voters — notwithstanding the fact H.B. 589 had been recently struck down,” Hampson wrote. The judges viewed the rush job that produced the new law as another sign of discriminatory intent.
They recapped some familiar arguments made by the law’s opponents, such as that black citizens disproportionately lack the kind of IDs acceptable for voting or the documents needed to obtain them. S.B. 824 does require county election boards to issue such IDs, but the judges noted that in some cases getting one would involve a significant hassle – in other words, an unfair burden.
And while crediting the legislature with expanding the types of photo IDs voters could present, the panel pointed to the exclusion of public assistance ID cards – held by many black citizens because of their ongoing struggles with poverty – as another clue to an underlying racial motive in the ID scheme.
“Such a choice,” the judges wrote, “speaks more of an intention to target African-American voters rather than a desire to comply with the newly created Amendment in a fair and balanced manner.”
Republicans’ bottom-line rationale for voter ID – at least the rationale they use for public consumption – is that it’s needed to cut down on the possibility of voter fraud. But that argument collapses amid the inconvenient reality that in-person voter fraud is so rare as to be not a serious problem by any reasonable measure – certainly not sufficiently serious to hamper people without immediate access to an acceptable ID from voting.
And the judges’ conclusion that S.B. 824 is tainted with partisan-driven racial bias was hardly a novel one. Federal Judge Loretta Biggs, of the U.S. District Court in Greensboro, on the last day of 2019 already had enjoined the state from using a photo ID scheme in the primary elections to be held on March 3. Whereas the state court applied the North Carolina constitution, Biggs looked to the Constitution of the United States. We can say that the law’s challengers covered all available bases.
The state judges’ ruling now sharpens the distinct possibility that legal wrangling over voter ID won’t be resolved in time for an ID requirement to be operative for the elections next fall. That could have real consequences in races up and down a crowded ballot.
From the perspective of the N.C. Council of Churches, which favors participation in our democracy that is both robust and fair to all comers – fair even to those on society’s margins for whom voting is perhaps their best chance to influence decisions made in the public’s name – the longer a discriminatory voter ID rule can be deferred, the better.
Such a rule is not necessary. It’s harmful to our democratic system. And as presently framed in North Carolina, because of its impact on a group of voters still vulnerable after all these years, it’s very likely unconstitutional.