By: Cara L. Gallagher, weekend contributor
This is a follow up on N.C. State Conference of the NAACP v. McCrory
African-American voters in North Carolina were “targeted with almost surgical precision” by the North Carolina legislature, according to a three-judge panel for the Fourth Circuit Court of Appeals. Judge Diana Gribbon Motz wrote the opinion dismantling, point by point, all the provisions rushed through the Legislature in the days immediately following the landmark voting rights decision in Shelby County v. Holder on June 25, 2013.
In the Shelby decision, the Supreme Court released states that, after passage of the 1965 Voting Rights Act, were required to clear all changes to voting policies and practices with either a federal court or the Department of Justice. Former slave states, where Jim Crow laws abound that disenfranchised minority voters for decades, were released from the pre-clearance requirement and allowed to make whatever changes they wanted to voting policies. States like North Carolina and Texas moved immediately – within days – to initiate laws increasing restrictions on voter access.
In North Carolina, one day after the Shelby decision, the State Legislature designed and accelerated passage of an “omnibus” bill with five provisions restricting voting access. These provisions, aimed at curbing voter fraud, disproportionately affected African-American voter turnout in myriad ways.
· Provision one required voters show a DMV-issued ID in order to vote. The bill excluded non-government issued identification and no longer allowed voters to use recently expired IDs. According to Judge Motz, African-Americans disproportionately lack DMV-issued identification.
· Provision two eliminated early voting days from 17 to 10 when 60% of blacks voted early compared to 44-49% of whites. Among the 17 was one of two Sundays which historically are “Souls to the polls” days when African-American churches provide transportation to polling places.
· Provision three eliminated same-day voter registration, an effort that disproportionately affected blacks who are more likely to move and need to re-register and vote on the same day.
· Provision four eliminated out-of-precinct voting which affected black voters who tend to lack access to the kind of voter education programs that inform them about their correct polling places. Because of the increased rates of mobility, African-Americans are more likely to go to the wrong polling place.
· Provision five ended a pre-registration program for high school students who could’ve automatically registered to vote at 18 when they received their driver’s license. According to the State, the program was eliminated because it was “too confusing.”
Legislation like this in North Carolina is exactly what Shelby opponents were afraid of: Fast-tracked restrictions and laws framed in seemingly race-neutral ways that don’t appear on paper to have the intent to disenfranchise but have the effect of doing exactly that.
Despite appearances, NAACP v. McCrory articulated a clear message to other states that discrimination “need not be the sole or even primary motive for the legislation, just that it was a motivating factor.” Restricting access to a group of people, particularly racial groups, dilutes voter efficacy. This hampers their ability to elect members of a specific party and results in racially polarized voting. As African-Americans have consistently voted Democratic, the Court found these restrictions imposed by the North Carolina state legislature in 2013 – a time when Republicans had the majority in the House, Senate, and the Governor’s mansion – intentionally discriminatory to black voters and likely to have an adverse effect on Democratic candidates.
The facts Judge Motz methodically presented revealed concerted efforts to subdue the effects of rising black voter turnout, efforts that reflect insidious machinations by Republicans to dilute an influential bloc of voters in as fast a way as possible. Take for instance black voter registration in North Carolina prior to the 2013 bill, which grew to 51.1% between 2000 and 2012. African-American turnout also grew from 41.9% in 2000, to 71.5% in 2008, and 68.5% in 2012. “Not coincidentally, during this period North Carolina emerged as a swing state in the national elections,” according to the decision.
Vote dilution mitigates the power that comes with racially polarized voting. Since African-American voters in North Carolina overwhelmingly vote Democratic, [85% of African-Americans voted for Kerry in 2004, 95% for Obama in 2008; 27% of whites voted for Kerry, 35% for Obama] any restrictions would protect the very architects who designed the law in 2013.
North Carolina’s Legislature and the lower court failed to see the “forest in surveying the trees” and the “inextricable link between race and politics” that resulted in the disenfranchisement of thousands of African-American votes. According to the Judges, “Indeed, neither this legislature – nor, as far as we can tell, any other legislature in the Country – has ever done so much, so fast, to restrict access to the franchise.”
Fast is an understatement. Take for instance the glaring disparity in the way the first draft of the bill – which in its 16 pages included only one minor voter identification provision – was handled compared to the second draft, a 57-page “omnibus” mother of a bill that included five voter restrictive provisions.
The first draft, released in April of 2013, received six weeks of hearings and debate, and the backing of opposing party members. It sat unchanged until June 26, 2013, one day after the Shelby decision was announced by the Supreme Court. That day the Legislature put the same bill on steroids, editing the one provision and adding four more.
The second draft offered no public debate or action for a month, was released on the down low for which no minutes of meetings about the bill exist, and moved through the General Assembly in a record three days. “This hurried pace, of course, strongly suggests an attempt to avoid in-depth scrutiny,” wrote Judge Motz.
The three judges criticized the district court for allowing the state to chalk up the restrictions to one party playing “politics as usual” against the other. Judge Motz, in perhaps the most derisive commentary in the decision, condemns this notion. “We recognize that elections have consequences, but winning an election does not empower anyone in any party to engage in purposeful racial discrimination. When a legislature dominated by one party has dismantled barriers to African American access to the franchise, even if done to gain votes, ‘politics as usual’ does not allow a legislature dominated by the other party to re-erect those barriers.”
Particularly damning was the fact that the legislature requested data that broke down DMV-issued identification ownership, absentee voting, early voting, same-day registration, and provisional voting by race during the drafting of the bill. Analysis of this data would’ve (or should’ve) revealed to lawmakers that African-American voters are disproportionately impacted in each category. With this revelation, any argument by the State that there was no intent to discriminate against black voters and no knowledge that the restrictions would have such adverse impacts is stunningly impossible.
You’re a state with a proven record of voter fraud that wants to quash this. Fine. But if their intent was honestly to curb voter fraud these restrictions look more like the State brought a machine gun to a knife fight.
What are these state-wide rushes to reform voting processes always about? Voter fraud, the integrity of the election process, restoring public confidence? Yes, those things are important and while it would seem as if North Carolina must’ve had an outbreak of recent voter fraud, according the Judge Motz “the State has failed to identify even a single individual who has ever been charged with committing in-person voter fraud.”
Further disproving the state’s genuine interest in thwarting fraud, the only evidence of actual voter fraud has been with mail-in absentee ballots, but you’ll note not one of the provisions repaired this alleged problem. According to the opinion, “Notably, the legislature also had evidence that absentee voting was not used by African-Americans; indeed, whites disproportionately use absentee voting.”
The three judge panel reversed the decision of the lower court and would’ve likely recommend the case be remanded back to the state and lower court for revision or reconsideration. Not this time. Writing that a remand “would accomplish little,” they, in essence repealed the law and gave no second chances.
While the Judges could’ve sanctioned the State by putting them back under a Section 5 pre-clearance requirement, they stopped short of going that far. The next steps for North Carolina are to either request an en banc hearing in which all the judges at the 4th Circuit would rehear the case, or they could appeal to the Supreme Court. It’s likely that even if they got four Justices to grant a hearing of the case they would end up with a 4-4 decision, which would leave this decision in place.
The views expressed in this posting are the author’s alone and not those of the blog, the host, or other weekend bloggers. As an open forum, weekend bloggers post independently without pre-approval or review. Content and any displays or art are solely their decision and responsibility.
http://www.latimes.com/nation/la-na-oregon-automatic-voter-registration-20150317-story.html Oregon has it right as usual.
swm – if Oregon wants voter registration to be automatic it should also make driver’s licences automatic.
Squeeky:
The more important question is why those who have paid the penalties prescribed by law for criminal conduct are not automatically restored the right to full participation in civic life in a number of states. You may even find interesting the impact of passage of the Fifteenth Amendment on the popularity of disenfranchisement legislation.
@Jill
BUT there is a mechanism through which those rights are exercised. I have a right to vote, but not when the court house is closed. I have a right to vote, but do I necessarily have the right when I can’t prove who I am???
Perhaps when people lived in small rural communities, when everybody knew everybody else, ID wasn’t necessary. But today many of us don’t even know the people in our neighborhoods. Not to mention the fact that there is probably 10% of the country who is here illegally. So do you really think it grossly unfair to have to show ID to vote? When we have to show ID for darn near everything else in life.
Or, is that just some more race baiting drivel where people are snapping at the worm? Objectively speaking:
Is it unfair to require Voter ID??
That’s the question. I say no. Because I want my vote protected. I don’t want it diluted by people voting multiple times, or illegally.
Squeeky Fromm
Girl Reporter
Squeeky,
The party which benefits from people having voter rights is irrelevant. People should have them because that is the law. I have seen Republicans take away voter rights and I have seem Democrats do it. That isn’t the point. The only relevant issue is each person have the rights afforded to them by law.
“How many bubbles are there in a bar of soap?”
Y’all heard about that question haven’t ya?
One problem the White Republicans have in NC is the practices of the past when poor White trash did not vote. When asked today they will say:
“My daddy didn’t vote and I ain’t votin.”
The Republicans can get these guys to vote for their guys IF they get em to voter registration. On the other hand Blacks were legally excluded from voting in days past and thence are more motivated to register and vote. The new laws were enacted to dampen them. They worked.
This court sees things as they are.
Y’all come to NC and listen to the Republicans when they get together at a meeting or whatnot. It will be an all White crowd and they will be yakkin about the N guy Obama and what happened to Jim Crow laws.
Y’all come back now. Hear?
Doglover, the wrong choice according to whom? Trump isn’t my 1st choice, but it should be quit evident that a lot of people in this country are not happy with the status quo.
@Jill
You said: “Voter rights need protection. The powerful have always been willing to take away the rights of anyone they could when it suits them. Here, there is real and careful proof of a deliberate plan to commit voter suppression. To me, that is wrong and should be rectified even if the plan was not all that successful.”
I am not sure there was proof, but let’s move it to Virginia! The Democratic governor restored voting rights to 200,000 ex-felons. A few months before a presidential election. I think it obvious he did it because the Democrats will pick up more votes from felons, who are more likely to be black, than will the Republicans.
Sooo, is that fair? Now, assume he is successful, and then next year the GOP gets back in power. So, they pass a law to re-restrict the restoration. According to the judge in the North Carolina case—what the Democratic Governor did would be OK, while the GOP’s actions would be suspect, and probably rule them discriminatory.
Yet, aren’t both parties playing politics? With our votes which should be protected. You see, if I was the judge in the hypothetical Virginia case, I would ask “Is it unreasonable to prevent ex-felons from voting?” No, because plenty of states do it.
But your analysis would find it discrimination. Doesn’t that bother you some??? Because one day soon, the contest is going to be over illegal aliens. Who are not necessarily prevented from voting in State elections.
Squeeky Fromm
Girl Reporter
I’ve been called to be on several jury pools in my lifetime and I never tried to weasel out of my civic duty. I show up every election day to vote. I know when the poles are open and I get myself there to vote during the hours they are open. My mother in law died at 94. She did not drive, but she had a bus pass with her picture on it. As much as I smell something may not be right in these states voting laws, I still believe that some form of I D should be shown. I fear that some over zealous political hacks in this country will try to stuff ballot boxes. Back in 1960 some one ask Il. Sen. Dirksen why no one complained about dead people voting for John Kennedy in Chicago. His answer was, “That’s because dead people voted for Richard Nixon in southern Illinois”.
Excellent analysis, Cara. It has indeed been a good couple of weeks for advocates of voting rights. What I found particularly remarkable about Shelby was the court’s willingness to ignore congressional findings. What was not remarkable was the recidivism rate once the affected states were off probation.
@GaryT
I just look at the results.
1. Are Photo ID’s a bad thing? Nope. If they are too hard for some people to get, make it easier.
2. Is there some legally required minimum timeline for early voting? Nope, many states don’t have it at all.
Sooo, let the law stand. When you consider that black voting actually INCREASED after the law, then any thing else is irrelevant to me.
When you start getting into motivations and trying to read legislators minds, I think you are entering a swamp land. A lot of laws are passed just to make a legislator or party look good to his or her voting base. Sooo, give me the objective stuff because probably 90% of our laws are total BeeEss to begin with.
IMHO.
Squeeky Fromm
Girl Reporter
Doglover,
I think this case is genuinely about race. I do agree with you that voter suppression laws go after the other groups you mentioned as well and that is also wrong. However, this case does objectively seem to target black voters specifically. That’s my take on it.
I’m glad this was taken seriously and stopped.
Squeeky, I think voter suppression should matter to everyone whether they are liberal or conservative. One of the things (among many) that I have found so disgusting about mainstream Democrats is their watching the DNC suppress votes in real time while cheering it along like barking seals. It is therefore hypocritical of them to get upset about voter suppression in any context, since they have absolutely no objection to that course of action when it benefits their cause. But this cynical hypocrisy doesn’t seem a good pathway to follow.
Voter rights need protection. The powerful have always been willing to take away the rights of anyone they could when it suits them. Here, there is real and careful proof of a deliberate plan to commit voter suppression. To me, that is wrong and should be rectified even if the plan was not all that successful.
Naw Squeeky, I think they are right on this one.
The supposedly innocent reasons for ostensibly racist goals, just continue to stack up over and over, until there isn’t a straight-face answer to all of them.
That, combined with the pre-data investigation, the speed and stealth of litigation, it just isn’t plausible that this legislation was accidentally racist.
@doglover
Read the article above. The law was overturned because of RACE. I agree with you that the elderly and disabled have problems getting ID. But guess what? They also have problems getting to the grocery store, the bank, their doctors. And to visit a doctor requires ID. The states should just concentrate on making the IDs easier to get.
The problem is, when the Democrats head over to the local flop houses, to round up the drunks and derelicts to go vote, for a bottle of Cisco, or crack, whichever, the sots often lack paperwork. Or when they round up illegal aliens to go vote. The whole point of this stuff is:
1. Create another phony race narrative for Democrats to race bait over;
2. Make it easier to round up bodies with a pulse to pull the lever by “D”.
Squeeky Fromm
Girl Reporter
The judges decided the legislation was about race, Doglover. Read the decision.
So, blacks in NC cannot figure out where to vote, pass the driver’s test, know where to register to vote? And why are black churches allowed to take the whole congregation to vote on Sunday? Does the DNC still give black pastors ‘walking around money’ to sway their voters?
Why do journalists, commentators, and everyone else have to make this about race? Lots of people are affected by voter suppression laws regardless of race — military, students, the elderly, disabled, poverty stricken, rural folks, and low information folks. Those folks all deserve voting access, even if it takes them longer to understand the process, identify themselves, get to the polls, etc.
While many think voting is irrelevant, Trump’s rise shows that voters do make a difference, even if they make the wrong choice.
More of the Democrat’s Black Victimolgy Narrative. Not surprising Democratic Judges buy into it. But how about mentioning the fact that while the blogger, and the court, state that cutting back the number of early voting days is RACISSST!, many states, including big blue ones, do not have early voting at all:
http://www.ncsl.org/research/elections-and-campaigns/absentee-and-early-voting.aspx
Because that would throw doubt on the narrative. The Democrats are doing their best to stuff the ballot box with phony votes, illegal alien voters, and ex-felons. What a wonderfully inclusive party!
And not to mention, that the number of black voters went UP after the passage of the bill. Geeeesh our country is sooo screwed!
Squeeky Fromm
Girl Reporter
So incredibly repugnant:
“The first draft, released in April of 2013, received six weeks of hearings and debate, and the backing of opposing party members. It sat unchanged until June 26, 2013, one day after the Shelby decision was announced by the Supreme Court. That day the Legislature put the same bill on steroids, editing the one provision and adding four more.
The second draft offered no public debate or action for a month, was released on the down low for which no minutes of meetings about the bill exist, and moved through the General Assembly in a record three days. ‘This hurried pace, of course, strongly suggests an attempt to avoid in-depth scrutiny,’ wrote Judge Motz.”
Thank you for a thorough and highly-readable summary. I always enjoy reading your stuff here!
https://www.washingtonpost.com/news/wonk/wp/2016/07/29/the-smoking-gun-proving-north-carolina-republicans-tried-to-disenfranchise-black-voters/ “The federal court in Richmond found that the primary purpose of North Carolina’s wasn’t to stop voter fraud, but rather to disenfranchise minority voters. The judges found that the provisions “target African Americans with almost surgical precision.”
In particular, the court found that North Carolina lawmakers requested data on racial differences in voting behaviors in the state. “This data showed that African Americans disproportionately lacked the most common kind of photo ID, those issued by the Department of Motor Vehicles (DMV),” the judges wrote.
So the legislators made it so that the only acceptable forms of voter identification were the ones disproportionately used by white people. “With race data in hand, the legislature amended the bill to exclude many of the alternative photo IDs used by African Americans,” the judges wrote. “The bill retained only the kinds of IDs that white North Carolinians were more likely to possess.” ” Wow!
Good news for voters in Texas,Wisconsin, Kansas and North Carolina where republican authored bills were overturned. This is also good news for the democrats in NC and WI. Kansas and Texas will stay RED. Hopefully, McCrory’s days in office are numbered.