North Carolina officials on Monday publicly defended controversial voting changes the Republican-controlled legislature pushed this past summer, a legally mandated response to lawsuits brought by the ACLU, NAACP and the Southern Coalition for Justice. The U.S. Department of Justice is also filing suit.
The state reiterated its stand that the changes were made to fight voter fraud and ensure voting integrity – and are not voter suppression, as litigants suggest.
That’s hogwash, of course. And it was refreshing to finally hear recently two prominent jurists whose landmark rulings enabled voter ID laws nationwide to essentially admit that.
Both Appeals Court Judge Richard A. Posner, appointed by President Ronald Reagan in 1981, and U.S. Supreme Court Justice John Paul Stevens, appointed by President Gerald Ford in 1975, expressed misgivings about the impact of rulings they made affirming voter ID laws. They both had seminal roles in the landmark Crawford v. Marion County Election Board case that upheld Indiana voter identification laws that, like North Carolina’s today, were viewed as the most stringent in the nation in 2007.
Posner wrote the Seventh Circuit Appeals court ruling in the Indiana case. But in a new book and in interviews last week, he all but said he wished he had not. When asked if he got the case wrong, he did not equivocate. “Yes. Absolutely. And the problem is that there hadn’t been that much activity with voter identification…. [The judges] weren’t really given strong indications that requiring additional voter identification would actually disfranchise people entitled to vote.”
But it clearly did, he said. His colleague, dissenting Judge Terence T. Evans had it right when he wrote: “Let’s not beat around the bush. The Indiana voter photo ID law is a not-too-thinly-veiled attempt to discourage election-day turnout by certain folks believed to skew Democratic.”
Stevens admitted to the Wall Street Journal last week that when the case got to the Supreme Court, it was dissenting Justice David Souter who got it right: Stevens cited Souter's dissent that said the law would harm poor, minority, disabled, and elderly voters. "As a matter of actual history, he's dead right."
But Stevens, who wrote the majority opinion in 2008 upholding the voter ID law, stands by his decision on constitutional grounds. He said not enough evidence was presented to persuade him to rule otherwise. He insisted that the ruling is unique to the Indiana case and should not be applied broadly to others.
Yet, that is exactly what North Carolina says should happen. N.C. officials cite Indiana and other states as precedent for setting up N.C.’s strict voter laws, which not only require a certain type of photo ID but mandate many other restrictive changes.
N.C. lawmakers can’t plead ignorance about the disproportionate impact these changes will have. Many, including this editorial board, have laid out the statistics: African Americans were 22 percent of registered voters in 2012, but they cast 33 percent of the ballots in the first week of early voting, 30 percent of the out-of-precinct ballots cast on Election Day, and 43 percent of the ballots cast on the now- eliminated first Sunday of early voting. They are 34 percent of the registered voters who do not appear to have a driver’s license or N.C. photo ID.
Early voting has proven to boost voter participation, something policymakers should welcome. In Mecklenburg County alone, early voting – especially weekend early voting – has become overwhelmingly popular. Nearly 900,000 voters have used that option over the last decade.
But come 2016, when the state’s restrictive laws are in place, that could change. The courts should take note of the regrets and misgivings past jurists are expressing. These laws will hurt, not help, voters.
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