Judge sees no problem in inconveniencing a fundamental constitutional right
A federal judge’s ruling that upholds changes in North Carolina election laws, despite their effect of making it harder for some citizens to vote, seems to rest on his conclusion that, well, there’s no reason to get all upset about a little inconvenience.
Civil rights and social justice groups have led the charge against a raft of provisions that clearly weigh more heavily against minority voters – whose right to have an equal say in elections is protected under federal law and ultimately by the Constitution.
Judge Thomas Schroeder of the U.S. District Court in Greensboro held two trials to consider lawsuits challenging the changes, which were engineered by the Republicans who control the General Assembly.
In an exhaustive, 485-page opinion released on April 25, Schroeder found that the legislature had acted within its proper authority, and that whatever negative effects the changes might have on minority voting don’t rise to a level of legal or constitutional concern.
He was dismissive of the notion that racial bias could still play any sort of noticeable role in the state’s policy-setting. “There is significant, shameful past discrimination,” he said. “In North Carolina’s recent history, however, certainly for the last quarter century, there is little official discrimination to consider.”
It’s doubtless true that the 1965 federal Voting Rights Act and the passage of time since the segregationist outrages of the Jim Crow era have worked in minority residents’ favor. But it’s also true that the legislature approved the contested election law changes in 2013 only after a key protection in the Voting Rights Act was rashly lifted by the U.S. Supreme Court.
Although Schroeder found reasons for that timing that essentially gave legislators an alibi on the charge of discriminatory intent, the law’s opponents can hardly be blamed for viewing the sequence of events as a smoking gun.
Further, the judge glossed over the partisan advantage that accrues to Republican officeholders and candidates when minority voters, with their strong Democratic leanings, are hit with adverse changes in election rules. If African-Americans are made to face higher obstacles to voting in the furtherance of Republican political goals, that walks, talks and quacks like racial discrimination – or it should.
With this language, the judge swung for the fences:
“In sum, Plaintiffs established that some segment of the State’s African-Americans endure socioeconomic disparities that can be linked to State discrimination and this may make it more difficult for them generally to participate in any electoral system.
“Plaintiffs, however, failed to show that such disparities will have materially adverse effects on the ability of minority voters to cast a ballot and effectively exercise the electoral franchise … within the multitude of voting and registration options available in the State, especially given that the 2014 turnout data show increased participation among African-Americans” under the law enacted the previous year.
That law is otherwise known as House Bill 589 — notoriously dubbed “the full bill” by a top senator because of the way it inflated a narrower measure approved by the House. It was sent forth immediately after the Supreme Court, in deciding that election law revisions in states such as North Carolina with a history of racial discrimination no longer would have to be cleared by the U.S. Justice Department, in effect flashed a green light.
Unless the plaintiffs succeed on their appeal, North Carolinians will have to get by with a shorter early-voting period, an end to same-day registration during early voting and an end to the practice of allowing voters who show up at a different precinct than the one to which they were assigned to go ahead and cast a ballot.
Yes, and voters will have to get used to being asked to show a photo ID – not just any old photo ID, but one of a select group of government-issued documents such as a driver’s license or passport. The ostensible purpose is to deter in-person voter fraud, which Schroeder said was a reasonable call on the legislature’s part even though evidence that such fraud actually occurs is minuscule.
The challengers reasonably assert that lack of such an ID is more commonly a problem among poorer folks, a group that disproportionately includes people of color and others who tend to support Democrats.
In other words, for all the talk of upholding election integrity, the ID rule is essentially a partisan ploy. But the legislature’s under-the-gun concession last year that people with a “reasonable impediment” to obtaining an acceptable ID could go ahead and cast a provisional ballot helped convince Schroeder to let the rule stand.
Consider the backlash
As to the law’s other provisions, the judge was unpersuaded that they have any impermissible effect in holding down African-Americans’ ability to vote. His analysis was capped with what he seems to view as a clinching point in the state’s favor: that turnout among black voters increased in the midterm elections of 2014, the first held under the contested law, as compared with turnout in the previous midterm elections of 2010.
“… Minority North Carolinians not only did not backslide under the new law, but rather continued to increase their participation,” Schroeder wrote. “African-Americans continue to hold a commanding lead over whites in registration rates, and their turnout rates continue to increase over comparable elections. This is powerful evidence of the cumulative effect of the law … and is persuasive proof that African-Americans do not suffer an inequality of opportunity” under it.
Yet recall that the political dynamics of 2014 as compared with 2010, the judge’s base year, were far different. It’s fair to say that the mid-term elections of 2010 weren’t likely to provide any especially strong motivation for black voters. They had given Barack Obama a big boost two years before, but the president would not be up for re-election until 2012. Democrats in general were struggling in 2010, and in fact lost control of the legislature for the first time in a century.
When an even stronger Republican majority was joined by a newly elected Republican governor, Pat McCrory, in 2012, a sea change in state policy began in earnest. A conservative agenda highlighted by tax and spending cuts, along with other measures decried by progressives, led to a huge backlash spearheaded by the state chapter of the NAACP.
That so-called Moral Monday movement surely helped galvanize African-American voters across the state. The elections of 2014 were their first chance to push back at the polls, and many took advantage. A fiercely contested U.S. Senate race also boosted turnout.
In a nutshell: Just because more black citizens voted in 2014 than four years before, that doesn’t necessarily mean they weren’t bucking a tide of discrimination. They simply may have been swimming harder.
A panel of judges, still to be selected, from the Richmond-based 4th U.S. Circuit Court of Appeals will be the next to consider whether North Carolina voters’ rights have been violated.
One such panel, with North Carolinian James Wynn Jr. writing for the majority, earlier signaled its view that the legislature had overplayed its hand. Abolishing same-day registration and out-of-precinct voting would have a discriminatory impact on minority voters, the judges concluded amidst legal jousting prior to the 2014 elections. But now, Schroeder’s extensive fact-finding and dismissal of the plaintiffs’ claims will make it harder for an appeal to succeed.
A partisan thumb
Two days before Schroeder’s ruling, coincidentally enough, a group at the Council of Churches’ biennial Critical Issues Seminar on April 23 in Greensboro was given a compelling look at the plaintiffs’ case. Anita S. Earls, executive director of the Durham-based Southern Coalition for Social Justice, which represents some of those plaintiffs, conducted a workshop focusing on pressures being brought to bear on minority voting rights.
Earls is an attorney and former official in the U.S. Justice Department’s Civil Rights Division. She emphasized how North Carolina had successfully increased opportunities for people to vote during recent years, and how the 2013 changes threw that trend in reverse, to the detriment of all potential voters but especially minorities and the poor. Click here to view her presentation at the Seminar.
What we’re left with is the unmistakable sense that our Republican legislature saw its chance to put a thumb on the electoral scales with measures that can’t help but deter some citizens from voting. That they managed to convince a federal judge that they were simply retrenching, to echo his term, from a period when the state’s election laws became too loosey-goosey and vulnerable to cheating doesn’t mask what they actually were about.
Constitutional? Maybe. Cynical, self-serving and heedless of the principle that broad access to the polls strengthens our democracy? Without a doubt.
Steve Ford, former editorial page editor at Raleigh’s News & Observer, is now a Volunteer Program Associate at the North Carolina Council of Churches.