Federal court is right to keep NC’s discriminatory voter ID requirement sidetracked

By: - January 13, 2020 12:15 pm

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A long road remains to be traveled before North Carolinians find out whether they’ll have to show an identification card, with photo, in order to vote in next fall’s pivotal elections. Did we say pivotal? Try crucial, momentous, fateful — take your pick.

But this much now seems more or less certain: The voter ID law rushed to passage by the Republican-controlled General Assembly in the last days of 2018 will not be in effect during the state’s primary elections to be held in March.

Ideally, the general elections in November and thereafter would proceed without a photo ID requirement – given that the kind of rule now on the books serves little valid purpose while making it harder for some people to vote. But suspension of the law for the primaries represents an important first step.

The hold on voter ID came in the form of a preliminary injunction issued on Dec. 31 by Judge Loretta C. Biggs of the federal district court in Greensboro. She ruled in a lawsuit brought by the state chapter of the NAACP, which alleged that the 2018 law unconstitutionally discriminates against African-Americans and other affected groups.

Biggs found that not only is the law likely to have a discriminatory effect – holding down the number of minority voters, who tend to favor Democratic candidates – but also that the law’s enactment was “imbued with discriminatory intent.” In other words, it was fair to conclude that legislators who pushed for photo voter ID to the disadvantage of some citizens knew what they were doing.

The judge cited North Carolina’s complex history of voter ID legislation and of race discrimination in general. Perhaps that legacy could have been even worse, in Deep South mode, but in Biggs’ view the 2018 voter ID law must be evaluated within the state’s own historical context.

“The preliminary evidence suggests a clear likelihood that Plaintiffs will establish that discrimination was behind the law,” Biggs wrote. The law, known as Senate Bill 824, “was enacted against a backdrop of recurrent state-sanctioned racial discrimination and voter suppression efforts – both in the far and more recent past.”

Prominent recently was a version of voter ID that went on the books in 2013, only to be overthrown by the federal courts three years later on grounds that it targeted minority voters with “almost surgical precision.” That law, opposed by the NAACP and its allies such as the N.C. Council of Churches, also included several other provisions aimed at restricting the vote. Its failure resulted in the current do-over.

Republican legislators, in Judge Biggs’ view, want to continue exploiting the fact that in North Carolina one sure way to punish a Democratic voter is to punish a voter who happens to be black. The motive may be partisan, but unequal treatment on the basis of race runs afoul of the Constitution. That Biggs herself is African-American should do nothing to devalue her findings – after all, the likelihood of an enhanced and justified sensitivity to the practice of illegal discrimination is a key reason to strive for diversity on the bench.

A.G.’s hard call

After the 2013 law’s rejection by the 4th Circuit Court of Appeals – a decision that the U.S. Supreme Court let stand – the legislature moved toward a less restrictive voter ID framework. Notably, it approved several additional types of acceptable IDs, including college-issued ID cards meeting certain standards.

It allowed someone who claimed a “reasonable impediment” that kept them from obtaining an approved ID to cast a vote anyway after certifying his or her identity. And it required county election boards to issue free IDs to voters who asked for them.

Attorney General Josh Stein

Democratic state Attorney General Josh Stein has been aligned with opponents of voter ID requirements because of their effect on people who are less likely to have government-issued photo IDs such as driver’s licenses or passports. Those people, many of them perfectly eligible to vote, also tend to be poorer, older or younger than average, or black or Latino.

But Stein has announced that his office will appeal Judge Biggs’ ruling on behalf of the defendants. Rather than Republican legislators who enacted the law, the NAACP’s suit targets Democratic Gov. Roy Cooper and members of the State Board of Elections, who are responsible for carrying it out.

Stein’s position seems to be that by comparison, S.B. 824 amounts to voter ID-lite and that it passes legal muster. Perhaps an argument can be made along those lines – although Stein also has decided not to press that argument before the March primaries. So unless Biggs’ preliminary injunction is made permanent or is lifted by another court, it will remain in effect until the lawsuit known as NAACP vs. Cooper goes to trial, on a schedule that hasn’t yet been set.

Despite his obligations as A.G., Stein will serve the cause of fair elections if he – like Biggs – remains mindful of the law’s gestation amid Republicans’ desperate efforts to cement partisan advantages they have enjoyed since taking control of both the state House and Senate in 2010.

Beginning in 2012, they piled up veto-proof majorities in both chambers – to the discomfiture both of Republican Gov. Pat McCrory, elected that year, and of Cooper, who defeated McCrory in 2016. In the elections of 2018, however, Democrats captured enough seats to put some teeth in Cooper’s vetoes.

Amendment strategy

Earlier that fall, in an effort to drive Republican turnout and to nail down some victories in an ongoing power struggle with Cooper, the legislature approved a slate of six amendments to the state constitution, to go before the voters during the November balloting.

One of those amendments, as approved by referendum, stipulated that voters would have to display photo IDs. As written, however, the amendment didn’t set forth any rules for those IDs – meaning voters were kept in the dark as to how the ID process would work and who might be disadvantaged. In a subsequent lame-duck session, facing the threat of a meaningful Cooper veto once 2019 arrived, legislators approved S.B. 824. Cooper did veto the bill but as expected the veto was overridden.

That recent history, as Biggs pointed out, dovetailed with long-standing efforts to find ways to suppress minority voters whom those in power found to be a nuisance. In other words, partisan gamesmanship did in fact “imbue” the entire process. The hollow argument that photo IDs are needed to prevent in-person voter fraud – a crime that scarcely exists – cannot be taken seriously by anyone looking at the matter in good faith.

While it should be possible in theory to enact a voter ID law that doesn’t meaningfully hamper anyone’s right to vote, that is a complicated and expensive undertaking. The current legislature has shown little sign of wanting to invest the necessary resources. And why would it – when the underlying motive plainly has been to hinder the flow of ballots from folks who might vote the “wrong” way?

The legislature’s extreme gerrymandering of election districts to boost Republican fortunes is another telltale piece of the larger picture. Again, state and federal courts have acted to protect voters’ rights.

The North Carolina Council of Churches supports democratic institutions that give everyone a fair voice at the polls, no matter their partisan allegiance and no matter their status in society. It has stood firmly in support of the NAACP’s voter ID challenges. In that spirit, it welcomes Judge Biggs’ ruling and looks forward to more elections in which qualified voters face no cumbersome, unnecessary and politically self-serving barriers to choosing their leaders.

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

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Steve Ford
Steve Ford

Steve Ford, former editorial page editor at Raleigh’s News & Observer, wrote this commentary for the North Carolina Council of Churches, which was first to publish it at www.ncchurches.org.