An election worker checks a voter's drivers license at a polling place in Charlotte, N.C. March 15, 2016.
Photo by Chris Keane/Reuters

North Carolina voting law, upheld by court, could cause chaos this fall

Voting rights groups say Monday’s ruling by a federal judge upholding North Carolina’s sweeping and restrictive voting law could cause chaos this fall if left in place.

“If this decision remains in effect, the impact on the November election could be devastating,” said Penda Hair, a lawyer for the Advancement Project. Hair said the plaintiffs would appeal the ruling immediately, asking for expedited consideration of the case to ensure a decision before voters go to the polls.

North Carolina could be a pivotal state in the presidential race this fall. Gov. Pat McCrory, who signed the voting law, also will be up for re-election in what could be a close contest.

Voting rights groups fear that the law’s various restrictions will cause longer lines and make it harder for minorities to vote, when the presidential and governor’s races could make for a high turnout election in the state. 

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On Monday evening, U.S. District Court Judge Thomas Schroeder upheld the law, ruling that it didn’t give minorities any less opportunity to participate in the political process than whites, as the plaintiffs alleged under the Voting Rights Act.

Rick Hasen, an election law scholar at the University of California, Irvine suggested that, given Judge Schroeder’s findings, getting the law overturned on appeal could be a heavy lift. 

“The chances on appeal may well depend upon the 4th Circuit panel draw,” Hasen wrote. “Nonetheless, even with a Democratic-leaning draw, the judge made a number of factual findings adverse to the plaintiffs which are supposed to get great deference by the appellate courts. If the case gets to the Supreme Court, we could well see the same dynamics in play.”

North Carolina’s Republican legislature passed the law in August 2013, just weeks after the Supreme Court, in Shelby County v. Holder, weakened the Voting Rights Act. Previously, the state would have had to have the law approved by the federal government before it could go into effect. 

The law, described by many observers as the strictest in the nation, imposed a voter ID requirement, cut early voting from 17 days to 10, eliminated same-day voter registration, banned voters from casting ballots in precincts other than their own and ended a popular program to pre-register 16 and 17 year olds, among other provisions. The law’s challengers presented evidence at trial that African-Americans and Hispanics are more likely than whites to lack an ID and to take advantage of all of those features, and the state did little to dispute those findings. 

There were numerous reports of voters being kept from the polls as a result of the law, both in November 2014 and in last month’s primaries.

But Schroeder, an appointee of President George W. Bush, found that the plaintiffs failed to show that this was because of North Carolina’s historical legacy of racial discrimination, as they needed to do under Section 2 of the Voting Rights Act. Schroeder also found that the law didn’t depress minority turnout in the 2014 midterms.

“Plaintiffs oppose this system because they preferred one that they say was even more convenient – which they used disproportionately during certain elections – and point to some fraction of voters who did not vote or register,” Schroeder wrote. “Plaintiffs’ contention that such voters did not do so because of vestiges of historical official discrimination is rebutted by the facts. There is strong evidence that some other reason is at play for the failure of these persons to register and/or vote. The unprecedented gains by African-Americans in registration and turnout, both during and even in 2014 after [the law went into effect], bolster this conclusion.” 

But Hair said Wednesday that it’s impossible to gauge the law’s effect by looking only at one election. She noted that North Carolina’s 2014 U.S. Senate race, in which control of the chamber potentially hung in the balance, was the most expensive and perhaps the most hotly contested Senate race in history, meaning it’s not surprising that turnout was high. She said a backlash to the voting law also increased minority turnout in a way that’s not likely to be replicated.

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As for the law’s ID provision, Schroeder found that there’s essentially no evidence of voter impersonation fraud of the kind that would be stopped by an ID requirement, but said that’s irrelevant. Citing the 2008 Supreme Court ruling in Crawford v. Marion which upheld Indiana’s ID law, he wrote that the state has no obligation to show that such fraud exists.

The law’s challengers also called Tuesday for Congress to restore the Voting Rights Act to full strength by updating Section 5, the formula that determines which areas of the country must get their voting laws approved by the federal government, which was invalidated by the Shelby ruling. Two bills have been offered since Shelby to do so, but neither has received a hearing.

“The refusal to fix Section 5 is a cynical ploy to allow laws like this to be passed, especially in the South, that suppress the vote and allow extremists to win,” said Rev. William Barber II, the head of the North Carolina NAACP, who has led a grassroots movement against the law.

North Carolina, Pat McCrory and Voter Id

North Carolina voting law, upheld by court, could cause chaos this fall