While still poring over a federal judge’s 485-page ruling upholding North Carolina’s recent election law overhaul on Tuesday, attorneys for the voters and civil rights organizations challenging the changes quickly filed notice of plans to appeal.
Judge Thomas Schroeder’s opinion – one of the first to come down since the U.S. Supreme Court invalidated a key provision of the Voting Rights Act – is being scrutinized by many as a test of what obligations states have to make sure their citizens have access to the ballot box.
Schroeder’s ruling, which was released to the public Monday evening, upheld sweeping voting changes – requiring North Carolina voters to have one of six forms of photo identification, curbing the number of days for early voting, prohibiting voters from registering and casting a ballot the same day, and banning out-of-precinct voting.
North Carolina Republicans, who shepherded the changes through the 2013 legislative session, describe the cutbacks, new prohibitions and ID provision as common sense measures designed to prevent voter fraud. There are few documented cases of voter fraud.
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Challengers of the law described the measures as designed and adopted to disenfranchise African-American, Latino and college-age voters – constituencies more likely to vote Democratic than Republican.
They argue, and plan to continue to argue in their appeal to the judges of the 4th U.S. Circuit Court of Appeals, that legislators showed that to be the case when quickly adopting a much fuller version of election law changes than had been proposed shortly after the U.S. Supreme Court invalidated a section of the Voting Rights Act. The provisions the justices struck down required North Carolina and other Southern states to get clearance from the U.S. Justice Department before making major changes to election law.
“There is significant, shameful past discrimination,” Schroeder stated in his decision. “In North Carolina’s recent history, however, certainly for the last quarter century, there is little official discrimination to consider.”
Schroeder, a George W. Bush appointee, went on to say: “In short, North Carolina has provided legitimate State interests for its voter-ID requirement and electoral system that provides registration all year long up to twenty-five days before an election, absentee voting for up to sixty days before an election, ten days of early voting at extended hours convenient for workers that includes one Sunday and two Saturdays, and Election Day voting.”
Schroeder added that the challengers “oppose this system because they preferred one that they say was even more convenient – which they used disproportionately during certain elections – and point to some fraction of voters who did not vote or register.”
What will 4th Circuit do?
Rick Hasen, a law professor at the University of California-Irvine, described Schroeder’s opinion as “thorough.”
“The judge goes into the evidence in great detail, but the opinion reads like someone who is very, very skeptical of the plaintiffs’ arguments, and very forgiving in terms of the state’s interests,” Hasen said on his Election Law Blog. “The aspect of the opinion I found particularly weak is his discussion of whether the state had good reasons for the voting cutbacks, which are the greatest set of election rollbacks in a single bill that I know of at least since the passage of the 1965 Voting Rights Act.”
Hasen, who said the chances on appeal could depend on which three appellate judges are selected to hear the case, was critical of the judge for barely discussing the role of partisanship in the election law changes.
“It is pretty clear that the North Carolina voting law was partisan legislation enacted to help Republicans,” Hasen said. “And part of this is exacerbated by the ‘race or party’ question. The judge has to look at this through the lens of race, at least for Voting Rights Act purposes. A better approach would be to say … that when a state makes it harder for voters to vote, the question should be whether the state has a good reason for burdening voters. And that’s where the tenuousness of many of the state’s arguments come in.”
On Tuesday, Republican leaders and voter ID advocates continued to praise Schroeder’s ruling.
“Despite the small but shrill opposition who continue to abuse the courts in an attempt to overturn the will of the voters, another reasonable, common sense law supported by a majority of North Carolinians has been upheld,” Rep. David Lewis, a Republican from Harnett County, and Sen. Bob Rucho, a Republican from Mecklenburg County, said in a joint statement. “We are glad the court recognized the law provides all voters an equal opportunity to vote and stopped this politically-motivated overreach from the Obama Justice Department.”
Others, though, questioned whether Schroeder divorced the state’s constitutional obligations from voters’ civil rights.
“The attack on voting rights in North Carolina is a shameful attempt to curtail access to the ballot that could disenfranchise hundreds of thousands of African-American voters in North Carolina,” said Liz Kennedy, director of the Center for American Progress, a left-leaning think tank. “North Carolina’s voter suppression law is the biggest rollback in voting rights since the Voting Rights Act, which could have prevented exactly these sorts of racially discriminatory retrenchments had the Supreme Court not gutted the law. … The same politicians who claim voter fraud is rampant when it is largely nonexistent have taken advantage of the weakening of the Voting Rights Act to manipulate voting laws to keep certain populations from voting and maintain the status quo that keeps them in power. These kinds of suppression tactics have been devastating to access and equality throughout American history, and it is deeply disturbing that they continue to threaten the integrity of our democracy today.”
Focus on 2014 turnout
The Rev. William Barber II, head of the state NAACP and an architect of the “Moral Monday” protests at the legislature, tried to shift the focus of conversation on Tuesday from the ID portion of the law to what he describes as “voter suppression.”
Though attorneys for the challengers have yet to provide many details of how they plan to challenge the judge’s ruling, they stated in a conference call with the media on Tuesday that they thought Schroeder’s analysis was flawed because he focused much attention on 2014 turnout results that showed black voters had higher turnout and registration rates than in 2010.
“The 2014 data merely confirm what the remaining data suggest: that minorities enjoy equal and constitutionally-compliant opportunity to participate in the electoral process,” Schroeder wrote.
The plaintiffs’ attorneys said focusing on the 2014 election to determine the effect of the law doesn’t take into account other factors. In 2014, there was a high-profile U.S. Senate campaign, as well as voter mobilization efforts by opponents of the 2013 law.
Barber characterized Schroeder’s reliance on 2014 election data as a “dangerous rationalization.” He argued that did not prove the law isn’t discriminatory, only that the affected groups were able to rally a voter registration and turnout campaign against what he described as discriminatory measures.
“We were able to overcome discrimination when we had segregated schools, but it did not mean that segregated schools were OK,” Barber said. “We’re quite concerned about that type of rationale in this decision.”
Though each side hoped to have resolution to the appeal before the November presidential elections, some questioned whether some issues might still be before the courts.
At the 4th Circuit, legal analysts say, the challengers could face obstacles because the judges often give deference to facts found by the lower court, and Schroeder went into great depth about how he determined the facts in the case.
“Republicans and Democrats tend to view these facts through different lenses, and judges are no different – not because they want to help ‘their party,’ but because they are predisposed to see facts in different ways,” Hasen stated in his blog post. “The judge made a number of factual findings adverse to the plaintiffs.”