Rosanell Eaton, 94, has been a registered voter for more than 70 years.
As a black woman growing up in the Jim Crow South, she had to read the preamble of the U.S. Constitution in order to register to vote. Last year, she was forced to make 10 trips to the N.C. Department of Motor Vehicles and other state offices so she could vote in this year’s elections.
That’s because of North Carolina’s new photo ID requirement, which goes into effect this election cycle. According to attorneys with the N.C. NAACP, the new requirement forced Eaton to spend more than 20 hours to obtain a photo ID. Her name was spelled differently on the other forms of identification that she needed for a photo ID.
Eaton’s experience will be included in the evidence that attorneys for the state NAACP, the U.S. Department of Justice and others will present during a weeklong trial starting Monday in U.S. District Court in Winston-Salem. The trial is the second one in less than a year that challenges North Carolina’s state elections law that was passed in 2013. The first trial was in July and centered on other provisions of the law, including the reduction of days for early voting from 17 to 10 and the elimination of same-day voter registration.
The trial once again puts North Carolina in the national spotlight. Voting-rights activists view North Carolina’s elections law as the most sweeping and restrictive in the country. State Republican legislators pushed the legislation through in 2013 soon after the U.S. Supreme Court invalidated a key section of the Voting Rights Act of 1965.
Section 5 required 40 counties in North Carolina as well as other states and communities to seek federal approval, or pre-clearance, for major changes in election laws. Immediately after Gov. Pat McCrory signed the legislation into law in August 2013, the state NAACP, the U.S. Department of Justice and others filed a federal lawsuit, charging that the law was racially discriminatory and unconstitutional.
Richard L. Hasen, a professor of law and political science at the University of California at Irvine School of Law, said the trial will be watched closely.
“I think this is one of those cases that is being watched nationally not only because North Carolina enacted (sweeping election changes) in a single bill but also because North Carolina is one of the jurisdictions that was subject to special pre-clearance conditions of the Voting Rights Act,” Hasen said.
Undue burden
North Carolina is one of 36 states that requires some form of photo ID, according to the National Conference of State Legislatures.
According to the North Carolina law, registered voters have to present one of six kinds of photo ID — a North Carolina driver’s license, provisional license or learner’s permit; a special nonoperators ID card; a U.S. passport; a tribal enrollment card issued by a federally or state recognized tribe; an ID card issued by another state subject to certain limitations; and a military or veterans ID card.
The state law also requires the N.C. Department of Motor Vehicles to issue a special free photo ID to any registered voter who lacks one of the six acceptable forms of ID under the law.
According to the lawsuit and other court papers filed, the photo ID requirement places an undue burden on blacks and Hispanics because they are more likely not to have a photo ID. A January 2013 analysis by the State Board of Elections found that 31.2 percent of registered voters who didn’t have a photo ID were black, even though blacks make up 20 percent of registered voters, attorneys for the state NAACP wrote in a trial brief. And a 2015 analysis found that blacks made up 36 percent of voters who could not be matched to the N.C. DMV database of individuals who had acceptable forms of ID.
State attorneys have disputed some of those numbers in court papers they filed, questioning the methodology used by plaintiffs’ experts.
Plaintiffs have also argued that blacks and Hispanics are more likely to live in places where there isn’t public transportation. They also point to racial disparities in household incomes, literacy rates and access to private cars as potential obstacles to efforts by blacks and Hispanics to obtain a photo ID.
One of the plaintiffs, Maria Del Carmen Sanchez, had to make numerous trips to the DMV because her name is presented differently because of naming conventions in Hispanic culture, attorneys for the plaintiffs said.
State attorneys have said the photo ID requirement is not discriminatory. State Republican legislators have said they passed the photo ID requirement, along with other changes, to restore public confidence in the voting system and to prevent potential voter fraud.
North Carolina does not have widespread in-person voter fraud, according to Lorraine Minnite, an expert for the plaintiffs who testified in July’s trial. Minnite is a Rutgers University political science professor. She testified that the State Board of Elections referred two cases of in-person voter fraud to prosecutors from 2000 to 2014.
‘Reasonable impediment’ declaration
A few weeks before the trial in July, state Republican legislators amended the photo ID requirement in ways they said made the federal lawsuit moot.
The amendment allows voters without a photo ID to sign a “reasonable impediment” declaration, a form listing acceptable reasons voters were not able to get a photo ID. There is also a part of the form that allows voters to write in another reason why they couldn’t get a photo ID. Then voters would cast a provisional ballot that would be counted later after county elections officials verified the voters’ reasons.
At the plaintiffs’ insistence, U.S. District Judge Thomas D. Schroeder agreed to exclude the photo ID requirement from the July trial and delay legal proceedings. Since then, plaintiffs and defendants had tried to reach a settlement without going to trial. When that didn’t happen, plaintiffs sought a preliminary injunction to keep the photo ID requirement from taking effect during the March primary.
Schroeder denied the preliminary injunction Jan. 15.
Hasen said the amendment might make the plaintiffs’ claims tougher to prove.
“I think it demonstrates it’s going to be an uphill battle for the plaintiffs to show that voter ID as it has been modified by the legislature creates an illegal burden on voters,” he said.
In fact, Schroeder, in his written order on the preliminary injunction, said that the “reasonable impediment” declaration makes it harder for plaintiffs to claim that the photo ID represents an undue burden on minorities. He said in his order that “Plaintiffs have failed to show that giving reasonable impediment declarants a provisional ballot is likely to impose a material burden on the right to vote.”
Jennifer Clark, counsel for the Brennan Center’s Democracy Program, said Schroeder’s decision in the preliminary injunction is not necessarily a signal of how he will ultimately rule after this week’s trial. A preliminary injunction is an extraordinary action that requires a high legal standard, she said.
Clark also said that a lot depends on how the reasonable impediment exception is implemented. Plaintiffs have argued that state elections officials have done a poor job of educating voters about the reasonable impediment exception, which could result in confusion. They also said county elections officials and poll workers have not been adequately trained.
State attorneys said elections officials have expended a great deal of energy and money in educating the public, including a media campaign and a new website. Schroeder noted in his ruling on the preliminary injunction that he believed state election officials have worked hard to educate people about the amended photo ID requirement.
The Rev. William Barber, president of the state NAACP, said the photo ID requirement, whether amended or not, still infringes on people’s right to vote.
“The right to vote is supposed to be constitutional, not confusing,” he said during a teleconference with reporters Tuesday.
Clark said that North Carolina is one of 15 states that will have new election laws that voters will have to navigate this year, when a new U.S. president will be elected.
“First of all, there is no doubt that North Carolina is part of a nationwide trend to make it harder to vote in this election,” she said. “Unless the court steps in and strikes down the law, when people go to the polls, they will be facing more obstacles to vote for president.”
