A three-judge federal panel meeting in Charlotte on Thursday may soon decide how North Carolinians vote in November, potentially impacting a midterm election that carries national importance.
The jurists from the 4th Circuit Court of Appeals in Richmond, Va., will hear arguments on whether parts of the state’s controversial new election laws should be set aside for the Nov. 4 midterm election.
Critics, including U.S. Attorney General Eric Holder, say changes put in place last year by the state’s Republican-controlled legislature intentionally discriminate against African-Americans and Latinos by making it harder for them to vote.
Both groups are key parts of an emerging Democratic coalition that helped Barack Obama carry the state in 2008 and helped him nearly do so again in 2012. Both could also play major roles in picking a U.S. senator in November, one of a handful of key elections across the country that could swing control of the Senate to the GOP.
Meanwhile, local election officials in Mecklenburg and other North Carolina counties are preparing for an election while not yet knowing what voting rules will be in place.
New law vs. old law
The state’s new election laws, described by many as the most sweeping in the country, shortened the days for early voting, ended programs to allow residents to register and vote on the same day, restricted the use of provisional ballots by voters who turn up at the wrong precincts, and eliminated a program that allowed 16- and 17-year-olds to register early for future elections. In 2016, the plan also will require voters to show a photo ID at the polls.
Supporters say the new laws are not discriminatory, but will help modernize North Carolina elections while making the vote fairer and more transparent.
Legal challenges to the laws are scheduled to go to trial next July. A coalition of groups, including the American Civil Liberties Union, the League of Women Voters and Obama’s Department of Justice, have asked the courts to stop the state from using the rules until the matter is settled in court. They want the old laws put back in place for the November vote.
Last month, a federal judge in Winston-Salem refused to do so. U.S. District Judge Thomas Schroeder, who was nominated by former President George W. Bush, said the critics had not proved that the laws would cause irreparable harm if put in place before July. But Schroeder, of Winston-Salem, also denied a state motion to throw out the case before the trial.
Challengers to the law appealed.
Big questions for court
Whether the 4th Circuit judges act with the state’s election only five weeks away remains one of a series of key questions swirling around Thursday’s hearing.
It’s unclear why the court is coming to Charlotte to hear the election-law case. One theory being tossed around by attorneys this week is that the city is a more convenient meeting place for the judges selected to hear the case. Their identities won’t be known until less than a hour before the 1 p.m. session.
Legal experts say the Supreme Court has counseled courts not to change election laws shortly before a vote. That heartens state Sen. Paul Stam of Cary, one of the Republican leaders who helped push through the changes in 2013.
“These laws were passed 14 or 15 months ago. The election is five weeks out. It would fly completely in the face of federal precedent for a court to change any of it now,” he said.
Debate over voter rights
John Hood, director of the conservative John Locke Foundation in Raleigh, said to make their case, critics of the new laws have to reach a legal bar that’s the equivalent of “jumping over a house” because it can’t be proved that any of the changes will limit turnout.
“This notion that we have moved North Carolina into some kind of voter-suppression hell has absolutely nothing to do with reality,” Hood said.
Still, challengers hold out hope that the judges will act. Legal experts say that a judge in Ohio recently struck down the state’s voter ID law, a decision that was later upheld by the 7th Circuit Court of Appeals.
In doing so, those courts used a far more expansive view of the federal Voting Rights Act than Schroeder, says Rick Hasen, an election expert at the University of California-Irvine.
N.C. could set precedent
A ruling in a Texas voting law case is expected soon. Yet Hasen says the upcoming decision here could very well be the first time an appeals court writes extensively about the subject.
What the judges say, he believes, could determine whether a host of other states follow North Carolina’s lead in changing how elections are held.
Chris Brook, legal director of the ACLU of North Carolina, says the stakes are high.
“It is difficult to overstate the implications of this case, both in North Carolina and beyond,” he said Wednesday. “These measures will doubtlessly make it harder for North Carolinians to vote, to say nothing of serving as a pernicious national model, if allowed to go into effect.”
The Rev. William Barber II, state president of the NAACP, said the courts can’t afford to wait.
“The reality is that any votes prevented at any time because lawmakers eliminate practices are votes that are forever lost,” he said. “That is a violation of the law. You cannot deny or abridge the right to vote in America.”
Decision likely in a week
Each side will be given 45 minutes Thursday to make their arguments, and several attorneys are expected to share the time. It’s unclear when the judges will rule. But since the court granted the challengers’ request to hear their appeal before the elections, observers don’t expect the court to take more than a week or so to rule.
Michel Bitzer, a political analyst at Catawba College, expects the courts to tread lightly in reaching a decision so close to a vital vote.
“Do they allow this election to unfold and then look back and see what happens or do they try and guess the potential impact and address it before it takes place?” he asked.
“This is one of the great unknowns.” Staff writer David Perlmutt contributed.