With hundreds of campaigns in North Carolina entering their final six weeks, a federal appeals court must now decide what kind of election the state will hold.
Will it be run under North Carolina’s old voting laws? Or will state voters cast ballots under the controversial set of rules passed last year?
The answer now rests with three judges – two from the Carolinas – from the 4th Circuit Court of Appeals. For two hours in Charlotte on Thursday, judges Diana Motz of Maryland, Henry Floyd of South Carolina and James Wynn of Martin County heard point and counterpoint in the state’s ongoing battle over the vote.
Passed by Republicans in the final hours of the 2013 legislative session, the new rules shaved a week off early voting (though the total number of hours remain the same), ended programs to allow residents to register and vote on the same day, eliminated the use of provisional ballots by voters who turned up at the wrong precincts, and cut a program that allowed 16- and 17-year-olds to register early.
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A coalition of voter and civil rights groups filed suit shortly after the package was signed into law. The U.S. Justice Department soon joined them. They claim the rules disproportionately affect minorities and other groups. The case is scheduled for trial next July.
Last month, U.S. District Judge Thomas Schroeder of Winston-Salem refused the groups’ request to hold the November election under the old rules. He said the challengers had not proved that the laws would cause “irreparable harm.”
Thursday, the 4th Circuit judges heard the groups’ appeal. What they decide in the coming days could have have profound implications – on election officials in the state’s 100 counties preparing for the November vote, and on the outcome of the U.S. Senate race in North Carolina on which control of Congress may hinge.
Attorneys for the state argued in court Thursday that the laws modernize North Carolina’s elections and make them more transparent and fair.
Assistant Attorney General Alex Peters told the judges it’s too late for them to change the election laws without confusing voters and scrambling ongoing planning. Absentee ballots have been mailed out, he said. “This election has already started,” Peters said.
The real harm, he said, “is changing the rules of an election at the last minute.”
Raleigh attorney Tom Farr, representing the state, said the plaintiffs have “failed completely” in making the case that the rules are harmful. They offer conjecture, not proof, that the rules affect black voter registration or participation in any way, he added.
Yet Allison Riggs of the Southern Coalition for Social Justice, told the judges that the laws could cost “tens of thousands” of residents their votes.
A report published this month by Democracy North Carolina alleges that 454 voters were blocked from participating in the May primary by the rules Republicans have put in place.
Washington, D.C., attorney Marc Elias said GOP legislators didn’t want young people “voting in their elections,” so they blocked college IDs from being used at the polls.
“My clients have the right not to be discriminated against, and to not have their right to vote abridged,” Elias said.
The judges, all appointed to the appeals court by Democratic presidents (though Floyd was first appointed a federal judge by President George W. Bush) jack-hammered the attorneys with questions. They often drew laughter from the audience.
If the new laws do such damage, they asked the plaintiffs, why was turnout for the May primary larger than in previous years? Who decides how an election is run, the voters or the state?
With the state attorneys, they probed the timing of the passage of the new rules, which came shortly after a Supreme Court ruling that made it more difficult to prove legal discrimination.
The judges also challenged the state’s assertion that the election plan is too far along to be changed. Aren’t election officials still familiar with the old rules? Wynn asked.
When Peters said the state has already mailed out voter pamphlets that include information about judicial candidates, Motz quipped, “Nothing in the bios will change.”
Floyd, a Brevard native, joined in. “Does an administrative burden trump a constitutional right?” he asked.
Wynn, pulling on his Eastern North Carolina roots, homed in on the new ban on allowing provisional ballots from voters who turn up at the wrong polling places. That happens all the time in his native Robersonville, he said, where redistricting often means residents must travel miles to vote when other polling places are nearby.
Doesn’t the new rule mean that fewer people can vote? he asked Farr.
That’s an assumption without proof, the attorney responded.
“We do have to use some common sense here,” Wynn replied. “We know that this happens.”
Farr did not retreat. “This is a reasonable regulation,” he said.
With the start of early voting less than a month away, the date of the judges’ decision is unknown. But if they choose to block the new election rules, Peters asked that they delay their decision so the state can appeal to the U.S. Supreme Court.
Meanwhile, county election workers keep watch.
Michael Dickerson, Mecklenburg County’s election director, said later in the day that there’s still time to add back the seven days of early voting – if the court orders him to do so. But it’s getting close.
“The sooner anything is decided on, the better off we are,” Dickerson said. “It's going to be more confusing if you don't make a decision within a week.”