N.C. voting law: Illegal or just bad?

The Observer editorial board

N.C. NAACP President William Barber II speaks outside court.
N.C. NAACP President William Barber II speaks outside court. NYT

North Carolina’s new voting laws are wrong-headed. But are they illegal or unconstitutional?

That’s what U.S. District Judge Thomas Schroeder has to decide in a nationally watched trial that started in Winston-Salem on Monday. The NAACP and others are challenging a 2013 law that overhauled the state’s election statutes. They say legislators passed the changes to intentionally discriminate against black voters.

Four provisions are at issue, and each one of them is bad policy. But unless the plaintiffs can prove that those provisions inherently leave black voters with less opportunity to vote than others, they could be disappointed with Schroeder’s conclusion.

Even the defendants acknowledge that the changes made voting harder. The new election laws, their brief says, “simply repeal or scale back conveniences on when and how to vote or register to vote…”

Precisely. Though lawmakers should be encouraging, not discouraging, voting, Republican lawmakers instead made voting harder. They shortened the popular early voting from 17 days to 10 days. They did away with same-day registration and out-of-precinct voting. And they stopped pre-registration by 16- and 17-year-olds.

Those are all bad policy reversals and should be changed. But they shouldn’t be thrown out by a judge unless they violate the Constitution or the Voting Rights Act.

It’s not clear that they do. Should courts find that 10 days of early voting is illegal but 17 is OK? Does the Constitution demand that 16-year-olds be able to pre-register to vote? Of course not; those are just smart ways to drive voter engagement. Republicans took conveniences away more than they added new restrictions. (The photo ID provision has been watered down and is not part of this trial.)

To be sure, it appears the Republican changes were motivated by politics far more than by concerns over countering (imagined) voter fraud. Democrats’ creation of some of the original policies, though, surely was political as well.

Republicans took away things, like early voting days, that the state was not required to offer in the first place. Some states still don’t offer them. That’s why Attorney General Roy Cooper describes what the plaintiffs want as “the equivalent of election law affirmative action.”

Plaintiffs face a high bar because the U.S. Supreme Court in 2013 gutted Section 5 of the Voting Rights Act. So Judge Schroeder will instead be deciding whether the changes violate Section 2 of the Act. Under Section 5, a judge would have to decide if minorities were worse off under the new law than the old law. Under Section 2, though, he must decide if the changes make it harder for minorities to vote compared with whites.

A court challenge to these laws was inevitable. But a better approach would be not to elect legislators who work to make voting harder in the first place.