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Trial Begins Over North Carolina Voter Law

Dan Brian   |  July 14, 2015   |  

WRAL.com provides a summary of the happenings as trial begins in Winston Salem over recent changes to the North Carolina’s voting law, detailing opening arguments on day one, Monday, June 13, 2015.

The suit is ongoing despite the North Carolina General Assembly recently passing a new statute moderating some of the more controversial provisions of the Act.  The new statute moderated the effects of the law Republicans pushed through just a year earlier requiring voters to show certain types of photo ID.  The new law created some exemptions to allow voters to sign an affidavit explaining why they were unable to procure an accepted form of ID.  The Plaintiffs in the suit continue to challenge the voting law, arguing for example that student IDs (particularly ones from state schools) should be acceptable forms of ID for voters.  But those issues have been continued and will not be addressed in the trial.

In dispute this week are portions of the law implementing changes to early voting (cutting the number of early voting days), early registration (limiting the right of persons to one-stop register and vote), limiting the ability to register of young people (people who are not yet 18, but will be 18 before election day had previously been allowed to pre-register), and invalidating the ballots of persons who accidentally travel to and vote at the wrong precinct..

The trial is novel in that until the Supreme Court’s recent ruling throwing out portions of the federal Voting Rights Act.  Prior to that S.C. decision, states in the south were required to get clearance from the United States Justice Department or from a federal judge before implementing changes to the voting process.  But the Supreme Court’s ruling allowed North Carolina and other states to pass such laws and let them go into effect without preclearance.  Instead, persons challenging the law must bring suit to block its implementation, as was done in this instance.

The Plaintiffs are trying to show two things in the trial.  Impact and Intent.

First they are attempting to show that the changes to the voting laws have a “disparate impact.”  This means that while the law is facially neutral as to race (Meaning it does not openly create different voting rules for whites than blacks), it still has the effect of discriminating, because its impact is different on white voters than on minority voters.  For example, after the Civil War, many states passed laws requiring would-be-voters to pass reading or intelligence tests, or to pay poll taxes.  While the laws required all persons, regardless of color, to pass the tests and pay the taxes, the impact was felt disproportionately by black voters, who were more likely to be unable to read or afford the taxes.  Plaintiffs in the ongoing trial make a similar claim: that while the law reduces early voting dates for everyone, its effect is felt hardest by minority voters who are statistically more likely to have trouble voting on a weekday during business hours when lines are often too long to allow voting during a lunch hour.

Second, the Plaintiff are trying to show that the voting changes were done with the specific intent of reducing minority turnout.  For example, the voting law eliminates early voting on the Sunday before election day, but allows early voting on the Sunday the week before.  In the past two Presidential elections, the Sunday immediately prior to the election had incredibly high turnouts of black voters due to numerous Churches bringing parishioners in buses after service in a so-called “Souls to the Polls” drive.  The Plaintiffs argue that the law was not intended to save money (the law requires counties to increase early voting hours on other days to make up for the cancelled Sunday) or protect the sanctity of Sunday (you can still vote on the Sunday a week before election day), but was a blatant attempt to eliminate voting on a day specifically because it is a date that has been utilized by African-American churches.

The Defendants counter that since the law’s enactment, minority turnout has actually increased, demonstrating that the law has not had a disparate impact.  And they counter that the law was not intended to curtail minority voting, but simply part of the state’s prerogative to administer its elections in a way it sees fit.

Unstated is the fact that politicians are allowed to make changes to the voting system for partisan effect, so long as the effects are not racist.  So, it is perfectly legitimate for Republicans to try to pass voting laws that favor Republicans over democrats, so long as the effects are not also racially disparate.  For example, a Republican might legitimately favor making it easier to obtain absentee ballots because military personnel over sees tend to vote Republican.  And a Republican can legitimately wish to reduce early voting hours because historically, Democrats have dominated early voting in North Carolina.  But the Voting Rights Act prohibits such actions if they also have a racial effect, whether intentional or incidental.