Federal judge: New voting law applies in November elections

In a 125-page decision released at 5 p.m. on Friday,  U.S. District Judge Thomas D. Schroeder ruled that the upcoming November elections will go forward under provisions of the new voting law enacted by the General Assembly in 2013.

For North Carolina voters, that means for this election cycle, there will be no same-day registration, early voting days will be reduced from 17 to 10, and votes cast out-of-precinct will not be counted.

In several lawsuits filed in federal court, groups and individuals, including the N.C. State Conference of the NAACP, the League of Women Voters, students and the Justice Department, contend that the House Bill 589 — dubbed the “monster voting bill” by voting rights advocates and uniformly called one of the most restrictive election laws in the nation — violates Section 2 of the Voting Rights Act as well as the 14th, 15th and 26th Amendments to the Constitution.

The challengers had asked the court to suspend enforcement of that law during the November elections, arguing that holding an election under a constitutionally-challenged law would irreparably harm voters, particularly those rendered unable to vote, those unduly burdened by the new law, and those whose votes might be discounted because of its provisions.

But Schroeder, appointed to the federal court here in 2007 by President George W. Bush, was unpersuaded by that argument.

Importantly, though, Schroeder also rejected the state’s efforts to have the case dismissed. That means the continued viability of the new law will be tested at trial in July 2015.

“If this law is found unconstitutional, North Carolinians whose voting rights were violated in the midterm election will have lost a critical opportunity to participate in our democratic process,” Dale Ho, director of the ACLU’s Voting Rights Project, said in a statement. “While we had hoped the court would recognize this irreparable harm, the ultimate goal is to see these discriminatory measures struck down. We look forward to making our case at full trial, which is something the state had sought to avoid.”

The Decision

Here are the key parts of Judge Schroeder’s ruling:

At this stage of the proceedings Plaintiffs and Intervenors have failed to demonstrate a likelihood of success on their claims that changes as to same-day registration and out-of-precinct provisional voting were implemented with intent to deny or abridge the right to vote of African-American North Carolinians or otherwise violate Section 2 of the VRA or the Constitution.

Further, even if the court assumes, without deciding, that Plaintiffs and Intervenors can demonstrate a likelihood of success on their legal challenges to the remaining provisions, they have not made a clear showing that they will nevertheless suffer irreparable harm if the court does not enjoin the law before a trial on the merits can be held. The only election slated before trial is the November 2014 general election. As to the reduction of early-voting days from 17 to ten, the parties acknowledge, and history demonstrates, that turnout for the fall election will likely be significantly lower than that in presidential years. The evidence presented, in light of the law’s requirements for counties to provide the same number of aggregate voting hours as in the comparable previous election under prior law, fails to demonstrate that it is likely the State will have inadequate polling resources available to accommodate all voters for this election. The court expresses no view as to the effect of the reduction in early voting on other elections.

As to the voter ID provisions, Plaintiffs only challenged the “soft rollout,” which the court does not find will likely cause irreparable harm, and not the photo ID requirement, as to which the court also expresses no view. In the absence of the clear showing for preliminary relief required by the law, it is inappropriate for a federal court to enjoin a State law passed by duly-elected representatives.

Some takeaways

To change the legislation, you have to change the composition of the legislature.  Although ruling only on the claims for purposes of granting or denying an injunction, the judge admitted as much with this statement:

Throughout the proceedings, there was much debate over the policy merits of SL 2013-381 as an election law and the popularity and desirability of various voting mechanisms it affects. It is important to note that, while these have evoked strongly-held views, this is not the forum for resolving that aspect of the parties’ dispute; such considerations are matters for legislative bodies to address. The jurisdiction of this court is limited to addressing the legal challenges raised based on the evidence presented to the court.

Business as usual at the General Assembly. Judge Schroeder accepted the state’s sterilized version of the legislative process that preceded the passage of the new voting laws, concluding that nothing that occurred during those final days of the session hinted at a discriminatory intent. The judge at times called the debate “thorough,” touted the “public hearings” that took place on the floor and elsewhere, and said that the gutting of an old bill and the dumping in of new and extensive provisions was not atypical in the General Assembly.

“As a political matter, it may have been preferable, even highly so, to put the bill on a slower track, but the court cannot say that the manner of the proceedings in the General Assembly raises a strong inference of discriminatory intent,” Schroeder wrote.

Section 2 of the Voting Rights Act is tricky.  Unlike the analysis under Section 5 of the Voting Rights Act (gutted by the U.S. Supreme Court in Shelby County v. Holder), which looks at how minority voters fared under the old law versus a new law, the analysis under Section 2 focuses on “equality of opportunity” — something the judge reiterated in his opinion.  That’s  a big difference, as election law expert Rick Hasen explains:

Under the old Section 5 of the VRA, the question was one of “nonretrogression:” one compared the conditions for minority voters under an old law and a proposed new law. If the state could not demonstrate that the proposed new law did not make minority voters worse off, then the law could not be put into effect. Today, the judge in North Carolina said that section 2 did not include a similar nonretrogression standard. Thus, in deciding whether a cutback from 10 to 7 days of early voting violated Section 2 of the Act, the question was not whether 7 was worse than 10, but whether 7 days standing alone made it much harder for minority voters to participate in the political process on the same basis as other voters. The court held that there were still ample opportunities to vote under even the truncated dates, and especially in a midterm election where turnout is not expected to be a big problem. 

Early voting is already being impacted.  Remember when the governor said this?  “We didn’t shorten early voting. We compacted the calendar, but we’re going to have the same hours in which polls are open in early voting and we’re going to have more polls available.”   Judge Schroeder took that to heart when he ruled that plaintiffs had failed to show irreparable harm from the reduction of early voting days. “Plaintiffs’ request asks the court to assume that some counties will obtain waivers of the extended hours for the general election as they did for the primary elections, but there is no indication they will,” he wrote. Well, as of the end of July, 33 counties had asked the state board of elections for a waiver so that they can reduce early voting hours.

Other Reaction

Rev. Dr. William J. Barber, II, president of the North Carolina State Conference of the NAACP said in a statement:

We will not rest in our efforts to ensure that the people can make their voices heard this November. The right to vote lies at the heart of our democracy. Our movement against this voter suppression law is built on the legacy of those who have testified before us, with their feet and blood, to fight for equal rights in North Carolina and the nation. We will not falter in our efforts to mobilize until this extreme law is repealed.

Penda D. Hair, co-director of Advancement Project, added:

We are disappointed that the court’s failure to issue a preliminary injunction means that countless North Carolinians could be disenfranchised in this November’s election.  With the elimination of same-day registration, the shortening of the early voting period by a week, and preventing out-of-precinct provisional ballots from being counted, this harmful law burdens the constitutional right to vote, especially for voters of color who used those positive reforms at a significantly higher rate than White voters. In a democracy, voting should be fair and accessible to all citizens. In North Carolina this November, that simply will not be the case. We remain confident that when the court has access to the full evidence in this case, and when we have a full trial next summer, we will prevail and ultimately restore the voting rights of North Carolina’s citizens.

The Governor’s Chief Legal Counsel, Bob Stephens, calling the new voting law “popular,” said in a statement:

This is a victory for North Carolina’s popular law that requires identification to vote. North Carolina is joining a majority of states in common sense protections that preserve the sanctity of the voting booth. Today’s ruling is just more evidence that this law is constitutional – as we have said from the very onset of this process.

State Rep. David Lewis, one of the prime movers of HB 589 in the House, told WRAL:

I’m very pleased that the judge has not found a reason to impair the commonsense election law that we passed that we’ve said all along gives everyone a full opportunity to participate in the election process, while at the same time improving the real and the perceived integrity of the election system.

State Board of Elections Executive Director Kim Westbrook Strach offered this:

We are partnering with civic organizations across the political spectrum to implement new voting requirements in a way that serves all communities in our state. Outreach staff at the State Board will continue our efforts to ensure that every voter has the opportunity to participate this November.

Read more about the case here.

Read the court’s full decision here.