North Carolina’s Sweeping Voter Suppression Law Challenged in Court

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This post first appeared in The Nation.

William Barber
Rev. William Barber, president of the N.C. chapter of The National Association for the Advancement of Colored People, addresses supporters at Halifax Mall outside the state legislature in Raleigh, N.C., Monday, June 17, 2013. Supporters of what the group calls Moral Mondays are outraged over GOP policies that they say restrict voting access, undermine public education and hurt the poor and jobless. (AP Photo/Gerry Broome)

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.

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  • Anonymous

    The actions of state legislatures to disenfranchise voters impacts white & native american voters as well as african americans & latino citizens – people born at home with no birth certificate or baptismal record at best census records. It would be prudent for the folks filing suits to point this out rather than focussing on just two of the gour impacted groups.

    The behavior of these jim crow states will help when a case it the SCOTUS to show Roberts et al how wrong they were.
    An answer is to set up laws for federal elections – US Semators, Representatives & Presidents. Federal position, Federal rules and a federal ID. If NC, La, Az, etc don’t want to accept a federal id that is prima facia case of voting rights violations.

    What would it take for a person with no birth certificate to get a US Passport?

  • Scott

    Is this the death throes of a once major political party before it slips into permanent minority status and fades away, or is this the leading edge of a dangerous mainstream neo-fascist movement, where white supremacists embark on a formal take-over of the GOP? It’s sobering to see the vile agenda of North Carolina’s GOP, being emulated in other states where the party controls the levers of power.

  • Wakeup about ALEC

    We can thank ALEC, Big Business, and the extreme religious right for this agenda. It is scripted behind closed doors, written as bills and sent out to the states. Wake up, folks! Thanks to Bill Moyer we have this information.
    Watch The United States of ALEC

  • Anonymous

    If you want to be part of the system & vote to change the system, why is it so unreasonable to be on the radar? Don’t want anybody to be disenfranchised of their vote but if you’re saying “I just can’t be bothered with getting a state ID or a new driver’s license”, this to me is silly. Plus the state is doing everything possible to give away state ID’s. How many other states have an ID requirement…34? It may mean you have to participate in the voting process a little earlier instead of waiting until voting day but lots of people do this everyday…and you have until next year.

    NC returning to Jim Crow? It’s doubtful, there’s just too many people who’ll make sure it doesn’t happen, myself included. You want to vote, you should be on the radar which means some kind of ID.

  • Anonymous

    I do not think that I had to show an ID in Maine to vote, but I did in FL and CA. Personally, I feel more secure in showing an ID knowing that someone else doesn’t just give my name and vote in my place. However, when I heard republicans crowing about passing voter ID laws, I immediately understood that it was an attempt at voter suppression.
    Fine, if a state requires an ID, it should be provided free of charge to citizens. The state should also have to go out of its way to secure verification of birth records or what ever is needed. We simply need a federal law. . . . oh, not so simple. Republicans obstruct any and all legislation needed for the public welfare.

  • William Donelson

    Just imagine what the Supreme Court would have become under Romney. This was the single MOST important issue of the last presidential election.

  • William Donelson

    Poppycock. Voter fraud is practically non-existent, and is just a stalking horse for Repuglicans to stifle those who would vote against them and their criminality.

  • William Donelson

    Repuglicans stand to gain seats in the Senate and House at the next election. Gerrymandering and voter suppression is how they do this.

  • Dee

    Your last sentence is a very good question!

  • Larry Penkava

    Last election, every time I went by the early voting place there were lines out the door in the middle of the day. Now they’re cutting early voting in half?

  • Lisa Kazmier

    Even if/when they say it’s “free,” it’s not. How long do stays at the DMV take? Then time away from work. Add to that if you have to take a cab to a DMV because you don’t drive. All of it adds up. That’s easily over $100. How do I know? When in Knoxville, I was briefly banned from driving till the cardiologist cleared me. RT cab fare was over $90 and I wasted a lot of time waiting for the cab to show up.

  • Lisa Kazmier

    You apparently don’t understand what I explained above about the cost of getting to a DMV if you don’t drive and the lost wages waiting there — it’s not like they’re open on weekends.

  • Anonymous

    Your point is valid & I’m sure you’re far from alone with the situation you describe. My understanding is that it’s not necessarily a driver’s license that’s needed, just a state ID (which I’ve had to get for my kids). Going to DMV is never ideal, having lived in CA for many years I can relate to losing a 1/2 day of work for every visit. What’s needed is the ability to get a state ID on-line if it doesn’t exist already.

  • Lisa Kazmier

    Who do you think is issuing a state ID if it isn’t a DMV? I’ve not heard of any specific or special place. It is not like NC is going to invest money in a mobile ID unit to travel to places where ppl don’t have ’em.

  • Anonymous

    Agreed, just wish the rhetoric I was hearing had more of your example, the logistical challenges that face folks in rural areas. I may be conservative but definitely not heartless, if the process shows any unwillingness when people make a real effort to get ID’s & are denied…I’ll be listening & watching. Your input has helped my education on this, thanks. And fyi, growing up, we lived in the mountains…getting that 1st ID was a pain.

  • Anonymous

    JeffD, some precincts in NC were cut in half–stacked and packed, making sure the Black vote was diluted. Some districts were chopped into quarters. What is the purpose of cutting voting hours, and closing on Sundays? African-Americans and others have long taken part in “Souls to the Polls.” That’s when 9-5/M-F workers have time to do their civic duty–after church.

  • bob

    All people in these overloaded districts should vote early, or by absentee ballot, and on election day, go to the voting stations in predominately Republican districts, with more machines and shorter lines and get in line there, move slowly, anser questions slowly, take your time and just clog up their lines! Let them see how it feels to be “harrassed” when you try to vote.

  • scot mardis

    The article did not tell us what % of registered black voters voted. It also did not give any reason such a high number of black voters voted early? Would have added to the story. Since voting is the most important right to a free democracy, how can securing the identity of the voter with a free state ID be racist ? It applies to all. You have to an ID to buy alcohol surely voting is as important as alcohol . If voting is are most important right , are black voters not able to save one day a year to vote on that day. In the same light if voting is so important , why do voters wait until that day to register.
    The whole notion that these parts of the voting law are racial biased are absurd.
    Redistricting voting lines as always been used by those that hold power .

  • Prof. Kingsfield

    We’ve had the photo ID requirement in Louisiana for a long time and it doesn’t seem to be that much of a burden, especially when you need photo ID to claim any sort of government benefits, sign a cell phone contract, catch a plane or hop on a train. So forgive me but I don’t see the photo ID requirement as a means of voter suppression. Realistically, how many folks out there are lacking photo ID? It is so easy to get photo ID. Chances are that most of the folks lacking photo ID are our poorer citizens, so all that is required is to drop into the local DMV office, which is usually in a state office building, and get one for free, if truly indigent, or for a minimal cost. Of course, standing in line at the DMV requires effort. Normally supporting documents are not required. If you’ve ever had a driver’s license in the past they look at your old picture in the computer and see if its you. This was done on a massive scale after Hurricane Katrina
    Recall, in New Orleans, where in the past there has been voter fraud by the likes of the old Choctaw Ring, we have historically buried above ground because it makes it easier for the deceased to get out to vote on election day.
    The question that everyone is too scared to ask is a social one. Would the political system really bettered when voters who are not invested enough in the system to have ID are picked up in buses and driven to the polls?

  • Diane

    Those without an address or a permanent home do not have access to photo ID. In other words, people who are poor and living in poverty. Photo ID requirements disempower poor people. Thus, unconstitutional and inhumane. There is no morality present in voter ID laws that take away the rights of the growing ranks of low-income americans…the new middle class.