The U.S. Justice Department will file suit against North Carolina's voting law, Attorney General Eric Holder said Monday. The move, which comes on the heels of a similar challenge filed last month against Texas, is the latest step in the Obama administration's effort to defend voting rights in the wake of June's Supreme Court ruling that weakened the landmark Voting Rights Act (VRA).
Holder said North Carolina's voting law, passed in July, "would shrink, rather than expand, access to the ballot." He called it "highly restrictive."
"The Justice Department expects to show that the clear and intended effects of these changes would contract the electorate and result in unequal access to participation in the political process on account of race," Holder added.
[Read the complaint here.]
The law is perhaps the nation's strictest. In addition to requiring voters to show a limited range of state-issued IDs, it also cuts back on early voting and ends same-day voter registration, among other provisions. All of those provisions disproportionately affect racial minorities, studies show. Rick Hasen, a law professor at UC Irvine and a prominent expert on voting, has called the law "a laundry list of ways to make it harder for people to vote."
Holder called the cutbacks to early voting "especially troubling," noting that in the last two presidential elections, 70% of minority voters took advantage of early voting.
The measure was pushed by Republican lawmakers who control the state's legislature, and signed by Gov. Pat McCrory, a Republican. An August poll found that just 39% of North Carolinians support their state's law, with 50% opposed. Along with a slew of other conservative measures enacted by the Republican government, it helped spark an energetic progressive opposition movement that since the summer has held demonstrations across the state.
Leaders of the movement, including Rev. William Barber III, the president of the state's NAACP chapter, applauded the lawsuit Monday, as did North Carolina Democrats.
By contrast, in a short appearance before reporters Monday afternoons, McCrory called the suit "an overreach and without merit." And he accused DoJ of playing politics, by singling out North Carolina's Republican administration.
"The Justice Department ignores similar laws in other blue states throughout the United States of America," McCrory said, though he did not specify which state laws he was referring to.
And in a joint statement issued Monday, Thom Tillis and Phil Berger, the GOP leaders of the state's House and Senate respectively, and both staunch supporters of the law, called Holder's move "nothing more than an obvious attempt to quash the will of the voters."
Last month, DoJ filed a similar lawsuit against Texas's voter ID law, and its redistricting plan. In all three cases, Holder said, the Justice Department is seeking to use Section 3 of the Voting Rights Act (VRA) to put the states back under a system of federal review. That system ended in June when the Supreme Court invalidated Section 5 of the VRA.
About half of North Carolina's counties were covered under Section 5. Since the Court's ruling, several other southern states previously covered by Section 5, including Alabama, Florida, and Virginia, have announced plans to push ahead with restrictive voting measures.
The lawsuit's chances are uncertain at best. It relies primarily on Section 2 of the VRA, which experts say is a weaker tool for stopping race bias in voting than the now-invalid Section 5. Under Section 5, the federal government could block changes proposed by covered jurisdictions if the changes might reduce the political standing of minorities, as compared to the previous status quo. Under Section 2, plaintiffs need to show that an election change denies minorities an equal opportunity to participate in the political process—a far vaguer standard. And unlike Section 5, which required covered jurisdictions to submit proposed changes in advance, Section 2 is an after-the-fact remedy.
Section 2 has rarely been used to challenge laws like North Carolina's, Samuel Issacharoff, a law professor at New York University who has worked as a top election lawyer for the Obama campaign, told MSNBC. It was amended by Congress in 1982 to help stop at-large voting schemes, which tend to over-reward majorities and have been used to reduce minority representation.
"Section 2 makes a lot of sense in that context," Issacharoff said. "It wasn’t drafted for this context, for how to deal with North Carolina’s very complicated racial-partisan impact [of a] change in the voting rules."
Issacharoff added that because minorities in North Carolina are more likely to be Democrats, racial and partisan threads could be difficult to disentangle. "There’s also the problem that a lot of what has an impact on minorities, has an impact on minorities because of partisan politics," he said.
Still, Issacharoff also noted that in 2012, courts blocked several state-based efforts to restrict the franchise, most notably in Ohio and Pennsylvania. To do so they often relied not on Section 2 but on the 14th and 15th Amendments to the Constitution itself.
"There is a renewed series of efforts, directed by the Republican party, to shut down access to the ballot," Issacharoff said. "And so far the courts have been extremely responsive to protecting the right to vote."
CORRECTION: An earlier version of this article stated that Sec. 2 requires evidence of discriminatory intent. Under Section 2, plaintiffs need to show that an election change denies minorities an equal opportunity to participate in the political process, or the right to elect a candidate of their choice. We regret error.