Court Issues Ruling on North Carolina Voting Rights

Buncombe County voters rally in 2013 against the voting restriction law, which was recently overturned by the 4th Circuit Court of Appeals. Photo: Urban News
Buncombe County voters rally in 2013 against the voting restriction law, which was recently overturned by the 4th Circuit Court of Appeals. Photo: Urban News
By Nelda Holder –

“The legislature requested data on the use, by race, of a number of voting practices. Upon receipt of the race data, the General Assembly enacted legislation that restricted voting and registration in five different ways, all of which disproportionately affected African Americans…. The new provisions target African Americans with almost surgical precision, they constitute inapt remedies for the problems assertedly justifying them and, in fact, impose cures for problems that did not exist… As in LULAC, this ‘bears the mark of intentional discrimination.”

~ Ruling from the 4th Circuit U.S. Court of Appeals in
N.C. State Conference of the NAACP v. Patrick McCrory

Against the backdrop of two national presidential nominating conventions last month, the rights of voters in the state of North Carolina were being tested in court. And in a July 29 decision against legislative provisions enacted in 2013, it would appear the voters won—at least for the moment.

At issue was NC State Law 2013-381, omnibus voting legislation that, among other provisions, changed the state’s voting franchise in five particular ways that were the subjects of court scrutiny. A three-judge panel from the 4th U.S. Circuit Court of Appeals in Richmond, Virginia, issued findings that minced no words in overturning these five provisions. As a result:

  • Photo ID will no longer be required for voting
  • An additional seven days of early voting will be reinstituted
  • Same-day voter registration will again be allowed
  • Out-of-precinct, provisional voting will again be allowed
  • Preregistration by 16- and 17-year-olds will be reinstituted

The five challenged provisions were originally upheld by U.S. District Court Judge Thomas D. Schroeder in Winston-Salem, who ruled they were not enacted with discriminatory intent and thus could stand. But in writing for the 4th Circuit’s reversal decision, Circuit Judge Diana Gribbon Motz noted Schroeder’s decision “seems to have missed the forest in carefully surveying the many trees. This failure of perspective led the court to ignore critical facts bearing on legislative intent, including the inextricable link between race and politics in North Carolina.”

Seizing the moment to avoid preclearance

The new findings document a timeline in the NC Legislature that points directly at changes made to a mild voting bill immediately following a U.S. Supreme Court decision (Shelby County v. Holder) that eliminated preclearance obligations in states that had significant histories of racial discrimination. Those obligations, put in effect following the Voting Rights Act of 1965, required 40 North Carolina jurisdictions to “preclear” changes in voting procedures or qualifications with either the U.S. Department of Justice or with the District Court for D.C. (See “Voting History and Ideals Collide in North Carolina Primary,” Urban News, March 10, 2016.)

On the day after the preclearance requirement was voided, writes Judge Motz, “a leader of the party that newly dominated the legislature (and the party that rarely enjoyed African American support) announced an intention to enact what he characterized as an ‘omnibus’ election law.” It was then the legislature requested data on different voting practices by race (see opening quotes).

The court further noted that the smaller version of the voting bill before the Supreme Court ruling had contained a voter ID requirement, but one that was much more “expansive” in terms of the permissible ID forms. “After Shelby County, with race data in hand, the legislature amended the bill to exclude many of the alternative photo IDs used by African Americans,” retaining only the kinds of IDs that white North Carolinians were more likely to possess.

Puncturing an opportunistic bill

The voting bill also grew from 12 to 57 pages, targeting “four voting and registration mechanisms, which had previously expanded access to the franchise.” And although the original bill had been languishing in committee, the new omnibus bill “moved through the General Assembly in three days.”

Offering comprehensive documentation of other discriminatory factors in its own 83-page decision, the appeals court rejected all five of the appealed components of the NC Voter ID law. It also subsequently rejected the state’s request to delay enforcement pending appeal, noting that the harm to disenfranchised voters outweighs granting a delay.

According to Mike Meno, communications director of the American Civil Liberties Union-NC, one of the plaintiff organizations in the litigation, the only option regarding a delay at this point would be an appeal to the U.S. Supreme Court, now sitting with only eight members. Five votes would be required to reverse the decision, and Meno says he is “reasonably confident” that won’t happen.

So the expectations for the November 7 presidential, statewide and local elections (see sidebar) are a much easier and wider path to voting. Meno calls it “a tremendous victory for North Carolina.” He noted that prior to the now-overturned sections of the law, “tens of thousands used these provisions,” a disproportionate number being black voters.” An added benefit, he pointed out, will be the ability to correct any errors in registration that might have occurred through system errors and not through the fault of a voter.

This case joins several other reversals around the country in the past few weeks. As noted in an August 2 article in The New York Times (“Turning the Tide on Voting Rights”) strict voter identification law in Texas was found to have a racially discriminatory intent; Wisconsin’s voter ID laws were modified or negated; Ohio’s cuts in early voting were ruled unconstitutional; Michigan’s elimination of straight-ticket voting was reversed; and Kansas lost a round in its attempts to make registration harder.

NOTE: Various organizations and individuals acted as appellants in four separate filings that were combined into one docket with this appeal, including the NC-NAACP and the NC-League of Women Voters, several other nonprofit groups and a number of churches, as well as the U.S. Department of Justice. To read the full court findings, go to www.ca4.uscourts.gov/Opinions/Published/161468.P.pdf

And in yet another court, another voting rights battle …

North Carolina’s redistricting dispute has not gone away. The nonprofit Common Cause has just taken the lead in filing a civil action against several members of the NC Legislature’s leadership who were instrumental in redistricting the state following the 2010 U.S. census, including Sen. Bob Rucho (R-Mecklenburg), Rep. David Lewis (R-Harnett), Senate President Pro Tem Phil Berger (R-Guilford/Rockingham), as well as the NC State Board of Elections and the State of North Carolina. The suit was filed August 5 in U.S. District Court, Middle District.

This suit asks that the 2016 Congressional Redistricting Plan and the 13 districts it created to be declared “unconstitutional partisan gerrymanders” that violate the First Amendment, the Equal Protection Clause of the Fourteenth Amendment, as well as Article I, section 2 of the U.S. Constitution. Of the 13 districts, three were ostensibly allocated as Democratic and 10 were drawn to assure Republican dominance.

Common Cause, a nonpartisan organization, filed on behalf of itself, its members, and those whose votes in congressional elections have been diluted or nullified.” The suit notes that gerrymanders “have been used by both Democrats and Republicans to entrench their power,” and declares such use “antithetical to our democracy.” The N.C. Democratic Party and several individual voters are also named as plaintiffs in the suit.

Among other arguments, the suit notes that given the “fundamental” right to vote, district lines must not be drawn if they are “inconsistent with the Equal Protection Clause of the Fourteenth Amendment” (citing Bush v. Gore, 2000).

In court action earlier this year, a three-judge district court declared the 2011 NC Congressional Redistricting Plan unconstitutional due to unconstitutional racial gerrymandering. (A new plan was then instituted that changed the boundaries of the 11th and 12th Congressional districts, affecting the voters in the Asheville/Buncombe County area.)

The Common Cause lawsuit notes that as of the date of enactment of the 2016 plan, there were “2,634,903 registered Democrats, 1,976,873 registered Republican, and 1,844,264 unaffiliated registered voters” in the state. It declares that the defendants “enacted a plan designed to give Republicans a 10-3 seat majority when Republicans comprised only 30% of the registered voters.”

The First Amendment, Common Cause argues, protects the right of voters to join or support a political party and to vote for the candidate of their choice. “Partisan gerrymanders … are incompatible with democratic principles,” the suit claims, referencing previous court cases. The suit also claims the redistricting plan was adopted “in excess of the authority granted to the North Carolina General Assembly” under the U.S. Constitution.

Common Cause seeks to void the current redistricting plan and guarantee that future districts be created that do not penalize an identifiable group, political party, or individual based on their political beliefs, party membership, registration, affiliations or political activities, or voting histories. It further asks for an end to the use of “political data” in any future redistricting.

And in additional courts, civil liberties at issue …

First, Gov. McCrory and the Department of Public Safety sued the federal government, and in turn the Department of Justice is suing the governor, the public safety department, and the UNC system and board of governors over the state’s widely publicized and divisive HB 2 law. The law contains a requirement that transgendered individuals use public bathroom facilities that match the sex listed on their birth certificate, which the Justice Department claims is discriminatory.

In all, five lawsuits have now been filed regarding the “bathroom law.” Senate President Pro Tem Phil Berger and House Speaker Tim Moore filed a second suit against the Justice Department over the same bill. The American Civil Liberties Union has filed in opposition to the law, and North Carolinians for Privacy, a conservative legal organization, has filed in favor.

It is expected that the issue will ultimately be heard by the U.S. Supreme Court, for a decision on whether the transgender issue constitutes sex discrimination.

The state law, which passed in a special 48-hour session of the Legislature last March 23, is officially called the Public Facilities Privacy and Security Act, although it contained other provisions such as preempting local government regulation of wages and other practices by contractors. In its original form, it also denied state residents the right to file discrimination suits in state courts, but that right was returned to the citizens in the most recent legislative session.

U.S. District Judge Thomas Schroeder is currently weighing a call for a court order blocking the law while litigation is pursued. He has not (at press time) issued a ruling. A trial date for the matter is set for November 14 regarding the federal claim that the bill violates the 1964 Civil Rights Act.

And in downtown Asheville …

Meanwhile, in downtown Asheville, August 8 witnessed a federal court hearing under U.S. District Court Judge Max Cogburn Jr. in the Ansley v. Warren lawsuit challenging NC Senate Bill 2, which was passed in 2015. That law allows magistrates to recuse themselves from performing “all lawful marriages” based on their personal “sincerely held religious objection.”

It further allows every assistant register of deeds and deputy register of deeds the right to recuse from issuing “all lawful marriage licenses” based on their personal religious belief.

According to the Campaign for Southern Equality, which is based in Asheville, the lawsuit’s argument holds that the effect of SB2 is to declare a magistrate’s religious beliefs superior to his or her oath of judicial office to uphold and support the federal constitution, and that public money is being used to “advance those religious beliefs.” It expressly charges that SB 2 violates the First and 14th Amendments. The Establishment Clause of the First Amendment forbids government actions that unduly favor one religion over another. The 14th Amendment, according to U.S. Supreme Court ruling, protects gay couples’ right to marry.

And who is paying …

In 2015, the Legislature set aside $8 million for legal bills, budgeting $4 million a year for 2016 and 2017 to pay outside defense lawyers. At that point, according to various press reports, some $3 million in outside legal costs had been designated for such costs, primarily for the defense of the election reform bill that was just overturned in part (see first section above).

In the most recent session, the Legislature transferred $500,000 from the state’s disaster relief fund for outside legal assistance regarding the controversial HB 2 law, also discussed above. Gov. McCrory’s legal counsel has announced that McCrory will not use the appropriated disaster-relief money, but will continue to glean the money from state department and agency budgets. (McCrory recently let the legislative appropriation become law without signing it.) Attorney General Roy Cooper, who is running against Gov. Pat McCrory in the November gubernatorial election, has articulated his opinion that the law is discriminatory, and he is not pursuing a defense through the Attorney General’s office.