RALEIGH The Obama administration’s decision to sue North Carolina on Monday to block new voting rules, including the oft-debated photo ID provision, was greeted with quick applause by civil rights advocates who described the measures as blatant attempts to suppress the African-American vote.
But some legal analysts as hastily offered a caution, contending that the U.S. Justice Department faces a high hurdle in trying to prove that intentional racial discrimination played a role in the election law changes.
“It is going to be up to DOJ to prove that, not up to the state to disprove discrimination,” said Richard Hasen, a law professor at the University of California, Irvine. “Absent smoking-gun evidence that the North Carolina legislature was motivated by racial animus, DOJ is going to have to rely on some kind of inference. That is generally a tough standard to meet.”
In announcing the federal government’s plans, U.S. Attorney General Eric Holder contended that his office would show that key provisions of North Carolina’s elections law are “both discriminatory in intent and in impact.”
The complaint was filed in North Carolina’s Middle District, where the state branch of the National Association for the Advancement of Colored People and other civil rights groups have filed recent challenges of the new law.
At a noon press conference, Holder said he brought the suit “more in sorrow than in anger.”
In August, Gov. Pat McCrory signed sweeping revisions to North Carolina’s elections law. Advocates of the changes said the measures, which included a voter ID provision, were necessary to prevent the possibility of voter fraud. Critics said the measures were designed to suppress the votes of Democrats in a state where few voter fraud cases have been brought.
The ID provision goes into effect for the 2016 elections and requires voters to show a valid, government-issued ID before casting a ballot.
That provision and three others were key to the multipronged complaint filed by the federal justice department.
Other provisions that trouble the civil rights division of the federal justice department include the elimination of seven days of early voting, the elimination of same-day registration during early voting, and the prohibition against counting provisional ballots that are cast when a voter shows up at the wrong polling place. Republicans defend the early-voting provision by noting that counties are required to provide the same number of hours for early voting.
“The Justice Department intends to show that the clear and intended effects of these changes would contract the electorate and result in unequal participation in the political process on account of race,” Holder said at a news conference. “By restricting access and ease of voter participation, this new law would shrink rather than expand access to the franchise.”
Not simply a voter ID bill
Election statistics show that 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 IDs, and 41 percent of those who used same-day registration.
North Carolina had the 11th highest voter turnout in the country last year.
But this past summer, with majorities in both General Assembly chambers and control of the governor’s office, Republicans adopted the sweeping changes.
“This is not simply a voter ID bill, and to portray it as such is not accurate,” said Thomas Walker, the U.S. Attorney from North Carolina’s Eastern District, which stretches from Raleigh to the coast. “For example, 70 percent of all African American voters who voted last year did so during early voting – a fact the state chose to quickly ignore in cutting early voting opportunities. Today we said they shouldn’t have. To pretend that those actions have no discriminatory impact on minorities is to deny reality.”
McCrory described the suit as “overreach and without merit.”
“I firmly believe we’ve done the right thing. I believe this is good law. And I strongly disagree with the action that the attorney general has taken,” McCrory told reporters.
Advocates of the changes in North Carolina have described them as “common-sense measures” designed to ensure honest elections.
The suit has been described as another skirmish in a battle over voting laws and race raging between Republican-controlled state houses and the Democratic Obama administration.
McCrory called the move political and fired back at President Barack Obama, citing a video – from a year ago – showing the president presenting an identification card to vote in Chicago. “I believe if showing a voter ID is good enough and fair enough for our own president in Illinois, it’s good enough for the people in North Carolina,” he said.
Illinois does not have a law requiring a photo identification at the polls on Election Day. But the state requires voters who vote early – as the president did in 2012 – to present a government-issued photo ID.
Senate President Pro Tempore Phil Berger, a Republican from Rockingham County, and House Speaker Thom Tillis, a Republican from Mecklenburg County, issued a joint statement, saying the lawsuit was an attempt to quash the will of the voters.
“The law was designed to improve consistency, clarity and uniformity at the polls, and it brings North Carolina’s election system in line with a majority of other states,” the lawmakers said in their statement. “We are confident it protects the right of all voters, as required by the U.S. and North Carolina Constitutions.”
Out-of-state legal aid
The state has hired Karl “Butch” Bowers, a lawyer from Columbia, S.C., to help fight the federal suit. N.C. Attorney General Roy Cooper, a Democrat who urged the governor to veto the bill, will still have the primary duty of representing the state, said Noelle Talley, Cooper’s spokeswoman.
The Rev. William Barber II, head of the state NAACP, which has filed suits in state and federal court challenging the election law changes, issued a statement, too.
“The southern strategy of the well-funded, nationally-coordinated ultra-right believes and has convinced many who purport a narrow and extreme political agenda that the only way they can hold onto their political power in Washington, and the South, is to drastically suppress voting rights for minorities,” Barber said. “We need every resource, including the U.S. government, to help us expose the national conspiracy behind this movement to suppress targeted constituencies in the new southern electorate.”
The Justice Department lawsuit comes almost four months after the U.S. Supreme Court struck down a key section of the Voting Rights Act, which required a handful of mostly Southern states to get approval from the Justice Department before making changes to voting laws. Forty counties in North Carolina had been covered by the regulation.
Since that decision, Holder has pledged to use the remaining provisions of the Voting Rights Act to take actions against states adopting laws considered discriminatory by the U.S. Justice Department.
Lawsuits have been filed against Texas, attempting to do away with their voter ID requirements. The federal justice department also took actions to join a lawsuit brought by civil rights organizations and Texas lawmakers against a redistricting plan.
The Supreme Court’s decision in June left intact a provision of the federal Voting Rights Act that allows the Justice Department to require states found to have intentionally discriminated against voters to get clearance from the department before making changes.
Congress could pass a new list of states that need pre-clearance, though that is seen as unlikely in today’s divided government.
Gene Nichol, a UNC-Chapel Hill law professor and director of the school’s Center on Poverty, Work and Opportunity and a vocal critic of the new voting rules, said he thinks the Justice Department has a strong case. He contends the Republican-led General Assembly adopted the changes to suppress the votes of opponents, and that includes racial minorities. He lauded the government for challenging the new rules.
“The United States government has initiated a legal process to declare North Carolina, as a result of the actions of the governor and General Assembly, an outlaw state – unwilling to protect the fundamental rights of its citizens,” Nichol said. “It seeks to place us in federal receivership because we can’t be trusted to govern fairly. The General Assembly has managed to do something we rejected in 1954, 1960, 1963 and 1965: placing us at the front edge of southern civil rights suppression. This crew continues to humiliate the state of North Carolina. Today, we got reminded we’re still part of the United States.”
Staff Writer Rob Christensen contributed to this report
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