Courts and Law

The long road ahead for voting rights

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State GOP lawmakers wasted no time ramping up their efforts to drastically change voting in North Carolina after the U.S. Supreme Court, in Shelby County v. Holder, gutted the requirement that certain jurisdictions get proposed voting changes pre-approved.

Now we can go with the full bill,” Senator Tom Apodaca told WRALthat same day, referring to an omnibus voting bill that would do more than just require voter ID; it would reduce early voting, eliminate Sunday voting and ban same-day registration.

Go they did, pushing House Bill 589 through both chambers and on to Gov. Pat McCrory’s desk for signature in just weeks and prompting voting rights advocates and even the Attorney General to warn that, by signing the bill into law, the governor would be casting the state into a protracted and costly battle in the courts.

And those groups wasted no time, after the governor signed H589 into law on Monday, hauling McCrory and the state into court, filing three separate lawsuits challenging the law.

Our goal is to make sure that these voting changes never become law in North Carolina,” said Penda Hair, an attorney for the North Carolina State Conference of the NAACP, one of the groups filing suit.

But the flurry of activity by lawmakers and the swift reaction from voting rights advocates will now switch gears to the deliberate and often expensive plodding in state and federal courts, with trials leading to appeals, possibly even to the Supreme Court.

And in the interim, one if not two elections will take place.

Whether or not the law violates the Constitution, or some other law, doesn’t determine whether or not it’s good policy,” said Justin Levitt, a voting rights expert and professor at Loyola Law School in Los Angeles. “And North Carolina voters should remember that litigation is not the only recourse to bad policy.”

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Earlier this week, voting rights advocates filed three separate lawsuits challenging the new law – two in federal court in Greensboro and one in Orange County Superior Court.

In Greensboro, the North Carolina NAACP and 92-year-old Rosanell Eaton – an African-American woman and veteran election activist whose ability to vote is threatened by the new law — sued the governor and members of the state election board. Together they contend that the voter ID provisions, along with the shortening of the early voting period, the elimination of same-day registration, the rejection of out-of-precinct ballots, and the increase of poll observers and challengers likely to intimidate, disproportionately impact African-American voters, in violation of the Fourteenth and Fifteenth Amendments of the U.S. Constitution and Section 2 of the Voting Rights Act.

Also in Greensboro, the League of Women Voters of North Carolina and other groups and individuals sued the state, the governor and election board members, challenging the changes to the early voting period, the elimination of same-day registration, and the rejection of out-of-precinct ballots under the Equal Protections clause of the Fourteenth Amendment and Section 2 of the Voting Rights Act.

In both cases the groups are seeking an injunction delaying implementation of the law until their claims have been resolved by the court. They are also asking the court to subject the state to preclearance under the Section 3 “bail-in” provision of the Voting Rights Act.

The plaintiffs in the League of Women Voters case are not, however, challenging the voter ID provisions of the new law in federal court.

Instead, with the same lead counsel, the League of Women Voters, the A. Phillip Randolph Institute and other individual voters sued the state and the board of elections in state court, contending that the voter ID provisions impact a broad array of voters, including not only African-American and other minority voters but also women, seniors and college students, in violation of the state constitution.

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 In Shelby County, a sharply divided Supreme Court tossed out the formula used to identify jurisdictions subject to preclearance under Section 5 of the Act — including 40 counties in North Carolina — as outdated.

In its aftermath, voting rights advocates bemoaned the loss of a powerful tool against voting discrimination, while state lawmakers here and in other previously covered jurisdictions like Texas rushed to pass long-desired but potentially unlawful voting changes.

But Shelby County also forced advocates to reconsider other enforcement tools under the Act and elsewhere in their efforts to combat voter discrimination and suppression.

That included U.S. Attorney General Eric Holder, who days after the decision announced renewed Justice Department enforcement of the Act and invited speculation that North Carolina was on his list of targeted states.

Experts convened by the Brookings Institution in Washington, D.C. shortly after the decision agreed that continued enforcement of the Act would necessarily involve the use of Section 2, the traditional discrimination claim filed by voters, as asserted in the federal cases filed here this week.

And although Shelby County effectively eliminated preclearance for previously identified “covered jurisdictions,” it did not outlaw preclearance altogether. Upon a showing of persistent discrimination, voters could also use Section 3 of the Act to force a state or local government into that process.

So options remained, they concluded, but the road’s gotten tougher for voting rights advocates.

After Shelby County, the burden flipped,” Justin Levitt said. “It used to be that under preclearance, states had to come in even before the law was enacted with statistics and evidence to support voting change and show that it wouldn’t harm minorities,” he added.

Now, it’s on the plaintiffs to prove that the law affects their ability to participate in the political process equally. And that’s harder to do for a bunch of reasons. Under preclearance, a jurisdiction had every incentive to release information to justify what they were doing, to show their hand a little more, because the burden of proof was on them. Now, most of the information plaintiffs are going to need is in the hands of the state. And the state has every incentive in the world to fight the release of information about the effect of the law and about the reasons that they put the law into place.”

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The filing of the lawsuits challenging the new voting law marks the beginning of what most experts say will be a long and expensive battle in the courts, fraught with uncertainty for both sides.

Section 2 claims are notoriously expensive, involve a lot of evidence and can take years to reach a final resolution, according to some experts on the Brookings panel. They have also, until now, been asserted mostly in redistricting cases – so their outcome is unpredictable.

And only two states as a whole – Arkansas and New Mexico – have been subject to “bail-in” under Section 3. “The predicate for “bail-in” is a finding of intentional discrimination,” Levitt said. “That’s an even tougher standard.”

Texas may be a test case, where voting rights advocates have asked a court to bail-in the state in light of recent changes in the law there. Last month U.S. Attorney General Eric Holder joined in that request.

In the short term, the plaintiffs here will likely be seeking an injunction to prevent any provisions of the law from taking effect while the cases work their way through the courts. Injunctions would likely have their biggest impact on those provisions set to take effect in 2014, which include the shortening of the early voting period and the elimination of same day voting. The voter ID provisions are not set to take effect until January 2016.

That’s plenty of time for voters to voice their displeasure over the changes, regardless of whether they violate the law, Levitt said.

It’s tough to see this law justified based on costs and benefits. And whether or not it amounts to a constitutional violation, or a statutory violation, there is also plenty of reason to question whether it’s good policy. So these cases will proceed through the courts. But whether or not the law is good policy isn’t necessarily decided in the courts.”

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