Voting rights trial update: Telltale timing of law catches judge's attention

by Steve Ford, NC Council of Churches, published in NC Policy Watch, February 8, 2016.

It was just one little comment, perhaps ventured with the flicker of a wry smile. But we can doubt that Tom Farr saw the humor in being ribbed by a federal judge.

Farr, attorney for the defendants in a challenge to North Carolina’s voter ID law, was wrapping up his case on Feb. 1 before U.S. District Judge Thomas Schroeder in Winston-Salem.

“It did kind of pass in the eleventh hour, didn’t it?” Schroeder remarked. “Is that how things are normally done in Raleigh?”

Farr knew better than to take that bait. His response suggested that the timing of the law’s enactment last June was some sort of enduring mystery: “I don’t know that there’s anything in the record that explains it, your honor.”

Well, maybe not in the official record of the lawsuits brought by civil rights advocates who think election law changes adopted by the General Assembly’s Republican majority amount to unconstitutional and illegal voter suppression.

But the timing seems to have been anything but a coincidence. In fact, the same could be said about the entire batch of election changes – something the plaintiffs should be able to count in their favor.

Second thoughts

In June of 2015, attention was focused on an upcoming trial before Judge Schroeder. The NAACP and its allies were arguing that new election rules enacted in 2013 discriminated against racial minorities in making it harder for them to vote.

A key provision of the 2013 law was a strict voter ID requirement, to take effect in 2016. In-person voters (those voting absentee were exempt) would have to produce a government-issued ID with a photo in order to cast a ballot. The rule was criticized as placing an undue burden on people who otherwise would be qualified to vote but who lacked a suitable ID such as a driver’s license or the documents needed to obtain one.

African-Americans were especially at risk of being caught in that bind, the NAACP maintained. It was lost on no one that if any voters were to be inconvenienced by the changes and perhaps deterred from voting, folks who tended to favor Democratic candidates were more likely to be affected.

With the trial about to take place, Republican legislators who had pushed for the changes got cold feet. They apparently concluded that their whole law might be dragged down by the aggressive voter ID rule.

So in a surprise move, they dialed the rule back significantly. Now, people without an acceptable photo ID could vote anyway, so long as they claimed their lack of the ID was due to a “reasonable impediment.” That covers a lot of ground – no transportation, missing birth certificate, couldn’t get off work and so forth.

The revision was sufficiently drastic that Schroeder dropped voter ID from the issues to be considered at the trial over which he presided last July. At that trial, the judge heard complaints about other facets of the 2013 law. Among them: a shorter early voting period, an end to registration and voting on the same day during early voting, and an end to a person’s ability to vote outside of his or her home precinct.

The voter ID challenge went forward on a separate track. Plaintiffs sought to have the ID rule, watered down as it was, put on hold for the primary elections to be held on March 15. Schroeder refused to issue an injunction, signaling that he didn’t think the underlying complaints about discriminatory intent would stand up.

But with the wry question he posed the other day to Farr, the judge signaled something else: He knew that the legislative chiefs had known they had a problem, which is why they softened the ID rule shortly before they would have had to defend it in court.

Green light for ‘full bill’

Does the “reasonable impediment” exception get legislators and Republican Gov. Pat McCrory, who has gone along with all the contested changes, off the hook? That’s what Schroeder now must decide, in a ruling that’s bound to be appealed one way or the other.

Meanwhile, though, the judge has yet to issue an opinion in the original lawsuit that led to the trial last summer. And again, he should find the timing of the measures he’s evaluating to be of interest.

Voter ID in North Carolina was first approved by the state House in April of 2013. The bill aligned North Carolina with several other Republican-controlled states that had moved to tighten voting requirements. The reason, ostensibly, was to cut down on the possibility of voter fraud, although in-person fraud that might be prevented by an ID rule is by most reckonings exceedingly rare. It’s also a felony.

Then, in June 2013, the U.S. Supreme Court invalidated a section of the federal Voting Rights Act. The upshot was that states covered by the act because of a history of discrimination against black voters – 40 North Carolina counties were covered  – no longer would need to have election law changes approved by the U.S. Department of Justice.

The state Senate, which had been sitting on the House-passed voter ID measure, sprang into action. “Now we can go ahead with the full bill,” remarked Sen. Tom Apodaca of Hendersonville, Senate Rules Committee chairman. By that he meant a much broader bill  with a portfolio of changes attacked by voting rights advocates as circumscribing voting opportunities for poorer folks, working folks, transient folks, students – and people of color in particular.

The pumped-up bill zoomed to passage with Republicans solidly in favor. That’s when North Carolina’s popular early-voting period was truncated from 17 days to 10, and same-day registration and out-of-precinct voting were abolished.

What they knew, and when

The law’s defenders can argue all they want that they were merely trying to simplify and standardize the state’s voting procedures while upholding election integrity. But as Apodaca inadvertently explained, they made the changes only after they learned that they wouldn’t have to justify them to federal watchdogs on the lookout for racial discrimination. They must have known the changes would have discriminatory impacts, or at least must have worried that the feds would reject them on those grounds.

Judge Schroeder will decide whether any impacts experienced disproportionately by minority voters were the result of intentional discrimination, and the legal bar to such a finding is high. It could be argued that as Republicans have tried to boost their party’s chances by making it marginally harder for Democratic-leaning voters to vote, the rights of black citizens simply have suffered collateral damage.

At the same time, it’s worth remembering that the Voting Rights Act was passed for a reason – embedded in this country’s history of discrimination aimed deliberately and specifically at people of color, despite constitutional guarantees of equal treatment.

African Americans bore the brunt of hideously oppressive schemes and tactics meant to keep them from voting. The principle that every citizen of this republic deserves an equal chance to have his or her say at the polls – a principle that the Council of Churches is dedicated to furthering – endured outrageous insult.

North Carolina has not been without blame in that regard. When today’s legislators in fits of partisanship weave tangled statutory webs evoking that shameful legacy, perhaps they shouldn’t be surprised when a federal judge pointedly asks, “Is that how things are normally done in Raleigh?”

Steve Ford, former editorial page editor at Raleigh’s News & Observer, is now a Volunteer Program Associate at the North Carolina Council of Churches.