North Carolina’s Sweeping Voter Suppression Law Challenged in Court: Follow up

By Ari Berman:

Yesterday, North Carolina Governor Pat McCrory signed the nation’s worst voter suppression law. The sweeping law requires strict government-issued photo ID to cast a ballot, cuts the number of early voting days by a week, eliminates same-day voter registration during the early voting period, makes it easier for vigilante poll watchers to challenge the validity of eligible voters and expands the influence of unregulated corporate money in state elections.

Two lawsuits were filed yesterday challenging the voting restrictions as racially discriminatory in federal court under Section 2 of the Voting Rights Act. A third challenge, to the voter ID provision, is scheduled to be filed in state court today.

The lawsuit brought by the North Carolina NAACP and the Advancement Project alleges that the law violates Section 2 and the Fourteenth and Fifteenth amendments because it “imposes unjustified and discriminatory electoral burdens on large segments of the state’s population and will cause the denial, dilution and abridgement of African-Americans’ fundamental right to vote.” It alleges that five provisions of the law disproportionately impact African-American voters — the voter ID requirement, the cuts to early voting, the elimination of same-day voter registration, the refusal to count out-of-precinct provisional ballots and the increase in the number of poll watchers.

African Americans are 23 percent of registered voters in North Carolina, but made up 29 percent of early voters in 2012, 30 percent of those who cast out-of-precinct ballots, 34 percent of the 318,000 registered voters without state-issued ID and 41 percent of those who used same-day registration. “A staggering 70 percent of African-American voters who voted in the 2012 general election used early voting,” the lawsuit notes. It says that “race was a motivating factor in the law’s enactment” and that “the General Assembly enacted those provisions with knowledge and intent that such actions would affect African-American voters disproportionately.”

A separate lawsuit brought by the Southern Coalition for Social Justice and the ACLU on behalf of the League of Women Voters, Common Cause and the A. Philip Randolph Institute also alleges that the elimination of same-day registration, the cuts to early voting and the ban on out-of-precinct provisional ballots violate Section 2 of the VRA and the Equal Protection Clause of the Fourteenth Amendment because of their disparate racial impact. These changes will make North Carolina the new Florida when it comes to long lines and electoral chaos.

In addition, the Southern Coalition for Social Justice plans to file another lawsuit today challenging the voter ID provision in state court, alleging that under Article 6, Section 1 of the North Carolina Constitution, the legislature doesn’t have the power to set new voter qualifications. The plaintiffs will include college students who will not be able to vote in North Carolina because they have out-of-state driver’s licenses and their student IDs will not be accepted, and elderly residents of the state who were not born in North Carolina and will have to pay to get a birth certificate to validate their identity, otherwise known as a poll tax, or they cannot get a birth certificate at all. One of those people is Alberta Currie, a 78-year-old woman from Hope Mills, North Carolina. Currie was born at home with a midwife, like so many African Americans in the Jim Crow South, and doesn’t have a birth certificate. Her driver’s license from Virginia is now expired. Though she’s voted consistently since 1956 — back when African Americans couldn’t even register to vote in the South or had to move to the back of the line when a white voter showed up at the polls — she could be disenfranchised by the new law. “I won’t have no rights if I can’t vote,” she says.

“North Carolina has a long and sad history of official discrimination against African Americans, including official discrimination in voting that has touched upon the right of African Americans and other people of color to register, vote, or otherwise participate in the democratic process,” notes the SCSJ and ACLU lawsuit. “Over the past 30 years in North Carolina, there have been over thirty successful cases brought under Section 2 of the Voting Rights Act and forty objections to discriminatory changes to voting laws lodged by the Department of Justice under Section 5 of the Voting Rights Act…. Based on concerns about intimidation at the polling place, the United States Justice Department sent federal observers to North Carolina.”

Groups are challenging the voting laws under Section 2 of the VRA, a nationwide prohibition on racial discrimination in voting, because Section 5 is no longer operable. Forty of one hundred counties in North Carolina were previously covered under Section 4 of the Voting Rights Act, which the Supreme Court invalidated in June, and would have needed to obtain federal approval for their voting changes. That would’ve been unlikely, given the clear evidence of disparate racial impact. The SCSJ/ACLU lawsuit asks the court to “bail in” North Carolina under Section 3 of the VRA, like the Justice Department recently did with Texas, so that it will have to approve future voting changes with the federal government.

Challenging voting restrictions like voter ID, cuts to early voting and the elimination of same-day registration under Section 2 is largely uncharted territory, since the bulk of previous Section 2 challenges applied to redistricting. The Department of Justice, for example, hasn’t brought a Section 2 case since 2009. According to the DOJ, “a plaintiff could establish a violation of the section if the evidence established that, in the context of the ‘totality of the circumstance of the local electoral process,’ the standard, practice or procedure being challenged had the result of denying a racial or language minority an equal opportunity to participate in the political process.” In practice, Section 2 cases are expensive, lengthy and usually apply to voting changes already in effect.

But since the Supreme Court took away their most potent weapon for fighting voting discrimination, voting rights groups have no choice but to hope that the compelling and disturbing facts of this case persuade the courts to block the “monster” new law.