Justice Department Challenging North Carolina’s Extreme Voter Suppression Law

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This post first appeared in The Nation.

A student registers to vote in Davidson, N.C. (AP Photo/Chuck Burton)

The Justice Department filed suit against key provisions of North Carolina’s worst-in-the-nation voter suppression law in federal court today. The lawsuit alleges that North Carolina’s harsh voter ID law, cutbacks to early voting, elimination of same-day registration during the early voting period and ban on counting provisional ballots cast in the wrong precinct violate Section 2 of the Voting Rights Act. The Department also argues that these voting changes were enacted with intentional discrimination and thus North Carolina should have to approve all of its voting changes with the federal government for a period of time.

“By restricting access and ease of voter participation, this new law would shrink, rather than expand, access to the franchise,” Attorney General Eric Holder said at a press conference today. Days after the Supreme Court struck down Section 4 of the Voting Rights Act, “the state legislature took aggressive steps to curtail the voting rights of African-Americans,” said Holder. “This is an intentional attempt to break a system that was working.”

The DOJ case comes on the heels of three lawsuits filed by civil rights groups in August challenging North Carolina’s voting restrictions. The Department has also recently filed suit against Texas’s voter ID law and redistricting maps.

Seven Southern states have passed or implemented new voting restrictions since that SCOTUS decision, and the North Carolina law is the most extreme yet. The law eliminates or curtails nearly everything that encourages people to vote in North Carolina, replaced by unnecessary and burdensome new requirements. The evidence of discrimination against African-American voters in the state is crystal clear: 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.

From the complaint:

Against a backdrop of the State’s history of voting discrimination against African Americans and a dramatic increase in the State’s African-American voter turnout rates during the November general elections in 2008 and 2012, North Carolina enacted HB 589 with knowledge of the disproportionate effect that numerous provisions, both singly and together, would have on the equal political participation of minority voters. These provisions include the reduction of the early voting period, the elimination of same-day voter registration, and the imposition of voter photo identification requirements without reasonable safeguards for voters who face barriers to obtaining such identification.

These restrictions will impact millions of voters in the state across all races and demographic groups: in 2012, for example, 2.5 million North Carolinians voted early, 152,000 used same-day voter registration, 138,000 voters lacked government-issued ID and 7,500 people cast an out-of-precinct provisional ballot. These four provisions alone will negatively affect nearly 3 million people who voted in 2012.

Days after the law was signed, North Carolina Republicans escalated their attack on voting rights with an unprecedented crackdown on student voting, trying to prevent a student at a historically black college from running for city council where he attended school (which the state board of elections overruled) and shutting down polling places on college campuses. This was an obvious indication that the law was aimed not at stopping voter fraud, which is virtually non-existent in the state (there have been only 22 alleged cases of fraud since 2000 according to the comprehensive News21 database), but at making it harder for core Democratic constituencies to cast a ballot and seek elected office.

“I stand here to announce this lawsuit more in sorrow than in anger,” said Holder. “It pains me to see the voting rights of my fellow citizens negatively impacted by actions predicated on a rationale that is tenuous at best – and on concerns that we all know are not, in fact, real.”

Will the DOJ lawsuit be successful? That depends on three key factors I outlined in August: how will courts interpret Section 2 of the VRA, which has been rarely used to challenge these type of voting changes? Can the DOJ prove that North Carolina’s voting changes were enacted with intentional discrimination, which is a very high bar to clear? And, regardless of the legal outcome, will the law produce a political backlash against minority voters that will offset the impact of the new restrictions? On the first two legal points, the outcome is hazy – we’re in uncharted waters thanks to the Supreme Court’s gutting of the VRA. A political backlash in North Carolina is easier to foresee, since the Moral Monday movement has been successfully organizing for months and the approval ratings of the GOP legislature and North Carolina Governor Pat McCrory are in the toilet.

The fight over voting rights in North Carolina vividly demonstrates why Congress needs to update the VRA. “Case-by-case litigation is no substitute for Congressional action on legislation to fill the void left by the Supreme Court’s decision,” said Holder. From 1980 to 2013, the lawsuit notes, the DOJ blocked 155 voting changes in North Carolina under Section 5 of the VRA. If Section 5 was still operable, the burden would have been on North Carolina to prove to the federal government that its voting changes were not discriminatory. Given the overwhelming facts of disparate racial impact in the law, the DOJ or the courts would have almost certainly blocked its implementation. Instead, the North Carolina legislature interpreted the Supreme Court’s decision as a green light for voter suppression, which it was, and made the bill as draconian as possible. It’s good that DOJ is now suing North Carolina, but it never should have come to this.

Ari Berman is a senior reporter for Mother Jones, where he covers voting rights. Previously he was a senior contributing writer for The Nation magazine and a fellow at The Nation Institute. His second book, Give Us the Ballot: The Modern Struggle for Voting Rights in America, was published in August 2015 by Farrar, Straus, and Giroux. Follow him on Twitter: @AriBerman.
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