Voting rights trial opens on Monday

By: - July 9, 2015 12:05 pm


Trial is set to get underway on Monday in the cases challenging North Carolina’s election laws, nearly two years since state legislators passed and the governor signed what many have called the most restrictive voting provisions in the nation.

It’s not going to be a quick one, with more than 100 possible witnesses lined up and hundreds more exhibits to review. Attorneys in the case expect the trial to last at least two weeks and predict an early August completion.

Here’s a quick look at what’s at stake and what to expect.

The law and its passage House Bill 589 started out in early 2013 as a simple voter ID bill, but then grew quickly later that summer into a 50-page comprehensive package of provisions scaling back previous measures designed to expand voting opportunities.

Within weeks of the U.S. Supreme Court’s gutting of preclearance requirements for election law changes in Shelby County v. Holder and without much in the way of public vetting or debate, Republican lawmakers pushed the “Monster Voting Bill” through both chambers and on to the governor’s desk.

As signed into law in August 2013, the bill eliminated same-day registration and the counting of out-of-precinct provisional ballots and shortened the early voting period from 17 days to 10 days – changes set to go into effect in time for the 2014 elections.

It also included a restrictive voter ID provision – effective in 2016 – which required all voters to present an acceptable form of photo ID before voting in person.

The lawsuits On the same day that Gov. Pat McCrory signed HB 589 into law, two groups of organizations and individuals – one led by the North Carolina State Conference of the NAACP and another by the League of Women Voters – filed lawsuits in the state’s Middle District federal court challenging the new law as unconstitutional and in violation of the Voting Rights Act.

The Justice Department filed a separate lawsuit in the same court in late September 2103, and a group challenging the law for its impact on the youth vote joined the fray in January 2014.

The Judge The cases have been consolidated for trial and are assigned to U.S. District Judge Thomas Schroeder, a George W. Bush nominee who has served in the Middle District since 2008.

How the case has proceeded After four days of hearings last July on whether portions of the new law should be blocked for the November 2014 elections, Judge Schroeder issued a late-Friday-in-August ruling denying that relief. In a 125-page decision, Schroeder dissected each of the challengers’ arguments and held that they had little likelihood to succeed on the merits.

But the 4th U.S. Circuit Court of Appeals then took the case on an expedited basis and heard argument in September — during which U.S. Circuit Judge James Wynn wondered aloud why the state of North Carolina wanted to keep people from voting.

reversal of Schroeder’s ruling quickly followed, but the case barely returned to the district court before the state asked the U.S. Supreme Court to jump in and stay the appeals court ruling.

The nation’s highest court did just that on Oct. 8, sending North Carolina voters to the polls in November 2014 with fewer early voting days, without the benefit of same-day registration and unable to cast a ballot if they showed up at the wrong precinct.

In a surprise turnabout this month, lawmakers adopted changes to the voter ID requirements of HB 589, now allowing voters lacking photo ID to cast a provisional ballot once they’ve signed a sworn statement indicating that they had a “reasonable impediment” to getting such an ID.

The judge has since indicated that he would not consider claims related to voter ID provisions as part of the coming trial but would review them at a later date.

The challengers’ case The gist of the case against the state is that the challenged provisions made voting harder for North Carolinians — “burdened” their fundamental right to vote — in violation of the 14th Amendment, and that those burdens fell disproportionately upon minority voters, giving them “less opportunity” to participate in the political process, in violation of Section 2 of the Voting Rights Act.

The challengers ask the court to view the voting changes through a wide lens, taking into consideration the cumulative impact HB 589 has on all voters and the historical and social implications it has in particular for black voting opportunity in North Carolina.

With testimony from some of the nearly 100 voters, lawmakers and experts the challengers have identified as possible witnesses along with other evidence to be introduced at trial, they’ll argue that North Carolina voters in large numbers came to rely on measures like same-day registration and two weeks of early voting – which were intended to and did increase voter participation.

For example, over 90,000 voters relied on same-day registration in each of the presidential elections it was available, the challengers contend in their trial brief, and some 700,000 ballots were cast on the specific early voting days eliminated by the new law in each of those elections.

African-American voters in particular relied on those changes to expand their voting options — using same-day registration twice as much as white voters in three of the last six elections in which it was available, casting out-of-precinct provisional ballots twice as often as white voters, and using early voting at increasingly higher rates than white voters in recent general elections.

Scaling back voting options which increased black participation was not unintended, the challengers say, pointing to demographic voting date lawmakers requested when considering HB 589.

As the Justice Department argues in its trial brief:

The General Assembly adopted HB 589 in part for the racially discriminatory purpose of rolling back the gains black citizens had achieved under the State’s prior election laws. This intent forms a second basis for holding that HB 589 violates Section 2.

The state’s defense The state defendants’ case, as outlined in their trial brief, turns largely upon facts developed after the passage of HB 589.

With only 24 possible witnesses identified, they’ll present a pared-down, three-part argument to rebut the challengers’ claims – asking the court to parse those claims with a facts-on-the ground approach rather than with regard to social and historical ramifications.

First, they say, turnout in the most recent election demonstrates that the challenged provisions had no discriminatory effect on minority voters.

African American participation in early voting and Election Day voting during the 2014 elections increased as compared to both the 2010 Primary and General Election,” the state defendants note in their brief.

Next, although voter ID claims are now not part of the trial, the state defendants add nonetheless that no voters will be turned away from the polls simply because they lack a photo ID. The restrictive voter ID provisions of HB 589 have now been changed so that any voter lacking an acceptable form of identification will still be able to cast a provisional ballot upon swearing under oath as to the reasons why.

And last, they contend, none of the challenged provisions unduly burden the right to vote, as there is no legal requirement in the first instance that the state provide ameliorative measures like same-day registration or a specific number of early voting days. And to the extent that there is any such burden, it is shared by all voters without regard to race.

As argued in their brief:

There is no evidence that the state will only require African Americans to register 25 days before the election, allow white voters a larger period of time for early voting, or only require African Americans to vote in their assigned precinct on Election Day.”


Trial in the cases consolidated under the lead case, North Carolina NAACP v. McCrory, will begin at 9:30 a.m. at the federal courthouse located at 251 N. Main St., Winston-Salem NC 27101.

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Sharon McCloskey

Sharon McCloskey, former Courts, Law and Democracy Reporter for N.C. Policy Watch, writes about the courts and decisions that impact North Carolina residents. McCloskey also wrote for Lawyers Weekly and practiced law for more than 20 years. Follow her online at or @sharonmccloskey.