Offer new opportunity for AG Holder to make good on promise to use 'every tool' at his disposal to fight discriminatory voting laws...
UPDATE: DoJ filed suit today, seeking to block TX Photo ID Law...
By Ernest A. Canning on 8/22/2013, 12:54pm PT  

Last week, civil rights groups filed two lawsuits in a North Carolina U.S. District Court, seeking to block what Brad Friedman aptly described as "the most extreme anti-voter bill passed by any state since the Jim Crow Era."

The Tar Heel State has a sordid history of official discrimination, a history that includes 30 successful challenges to discriminatory voting laws under Section 2 of the Voting Rights Act (VRA) over the past 30 years. Until the recent Republican takeover of the state, NC had become somewhat more progressive in the area of election law, even allowing for same day registration and voting which is lacking in even most of the more progressive states in the union.

Then, everything changed. Republican Gov. Pat McCrory signed a sweeping new election "reform" bill. The breadth the new law is unprecedented. It targets "nearly every aspect of the voting process," according to one of the new lawsuits. Both complaints allege that the newly minted Voter Information Verification Act ("VIVA" aka HB 589) reflects nothing less than a deliberate, racially-motivated attempt to deprive African-Americans of their constitutionally guaranteed right to vote.

The two federal lawsuits are NAACP v. McCrory [PDF] and League of Women Voters v. North Carolina [PDF].

The League also filed a separate legal challenge in state court, Currie v. North Carolina [PDF]. The state case alleges that VIVA’s polling place Photo ID restrictions violate the NC Constitution, which treats voting as a "fundamental right." (A legal analysis of the state challenge will be covered in a subsequent article).

Earlier this Summer, when the U.S. Supreme Court carved out the very heart of the federal Voting Right Act with their 5 to 4 Shelby County v. Holder decision, they acknowledged that their ruling "in no way affects the permanent nationwide ban on racial discrimination." The controversial decision rejected the formula established by Congress in the VRA's Section 4, used to identify jurisdictions to be covered by the Act's Section 5 requirement for those covered jurisdictions to receive preclearance from the DoJ or a U.S. District Court before enacting any new election-related laws. The SCOTUS decision did not, however, eliminate the right of individuals, civil rights organizations, or the DoJ to file lawsuits seeking to block discriminatory laws under the VRA's Section 2, which bars discrimination in all 50 states.

Therefore, the new federal lawsuits filed in NC do not, and need not, challenge the Shelby County decision. Their factual allegations, however, suggest that Chief Justice John Roberts was in grave error when asserting, on behalf of the Court's right-wing majority, that "the conditions that originally justified [Section 5 preclearance] no longer characterize voting in covered jurisdictions"...

Conditions Haven’t Changed

The facts alleged in these three complaints support the view that Roberts confused the very success of the VRA since it's passage in 1965, with the notion that it was no longer required to prevent discrimination. The "condition" was, as described by the Court in South Carolina v Katzenbach (1966), a "blight of racial discrimination in voting" --- as opposed to simple percentages of African-Americans who cast votes --- that had "infected the electoral process in parts of our country for nearly a century," leading to the enactment of the Section 5 preclearance requirement for certain "covered jurisdictions" in the first place.

As described in the League's federal complaint, filed by the ACLU, that "blight" has remained ever-present in the Tar Heel State over the better part of the past three decades, and even as recently as last year [emphasis added]:

Over the past 30 years in North Carolina, there have been 30 successful cases brought under Section 2 of the Voting Rights Act and 40 objections to discriminatory changes to voting laws lodged by the Department of Justice under Section 5...Based on concerns about intimidation at the polling place, the United States Department of Justice sent federal observers to North Carolina to help enforce federal voting rights laws that protect ballot access in the November 2012 general election.

That complaint adds:

Up through recent history, political campaigns in North Carolina have been characterized by overt or subtle racial appeals, including discriminatory tactics …in elections deliberately and demonstrably designed to keep African Americans from registering and turning out to vote.

The complaints' factual allegations reveal that the higher percentage of minority voter turnout in North Carolina over the past decade is not the product of an end to the "blight of racial discrimination," but, to the contrary, reflects the success of the VRA in fending off repeated efforts to abridge minority rights at the polls.

NC's high turnout in 2012 also came on the heels of a veto by former Democratic Gov. Beverly Perdue of a previous NC Photo ID restriction bill in 2011.

Racially Motivated

As The BRAD BLOG previously reported, quoting the DoJ’s website, a violation of Section 2 of the VRA can be established simply by a finding that "the local electoral process…had the result of denying a racial or language minority an equal opportunity to participate in the political process."

While all three civil complaints provide significant evidence of the new NC law's disparate impact on racial minorities, none stopped there. Instead, the lawsuits place the discriminatory effect of the statutes within the context of a legislative history which suggests that the NC GOP had erroneously seen, in the Court’s Shelby County decision, a green light to reinstate Jim Crow at the polls.

The complaints allege that, when it was first introduced in the General Assembly on April 23, 2013, aside from some amendments to the absentee voter process, HB 589 was basically a renewed effort to enact polling place Photo ID restrictions. It was passed by the House just one day later, on April 24, but languished in the state Senate for months --- that is, until just after the Supreme Court handed down its decision in Shelby County on June 25.

Within hours of that landmark decision, Republican State Senator Tom Apodaca, the Chairman of the Senate Rules Committee, announced on WRAL TV: "Now we can go with the full bill."

On July 23, with just four days remaining in the legislative session, HB 589 was resurrected with what the NAACP complaint describes as an "armada of amendments." Those amendments "included…reductions in early voting; the elimination of same-day registration; a provision that explicitly prevented county boards of election from counting 'out-of-precinct' provisional ballots; the elimination of discretion for county boards of elections to direct that polls remain open for an additional hour on Election Day; the elimination of pre-registration for 16- and 17-year olds; the elimination of flexibility for county boards of election to open early voting sites at different hours within a county; the elimination of straight party ticket voting; the expansion of the number of poll observers and the numbers of people who can challenge ballots; and new regulations that make it more difficult to add satellite polling sites for the elderly or voters with disabilities."

"These drastic changes," the League suit adds, "were introduced only one day before the Senate passed the amended bill and only two days before the House passed the bill."

The complaints recite evidence of disparate negative impact on African-American voters that is so striking that it suggests a meticulous and concerted effort to dilute that minority vote, since much of that evidence had already been provided to the General Assembly before it's super-majority of Republicans voted to pass VIVA along party lines.

Consider, for example, Photo ID. The only type of voter fraud that can been deterred by polling place Photo ID restrictions is in-person voter impersonation. A State Board of Elections report, cited in the NAACP lawsuit, reveals a grand total of two (2) cases of alleged in-person impersonation out of some 21 million votes cast in North Carolina over the past twelve years. Concerns about cases of absentee ballot voter fraud, on the other hand, go back decades. Prior to VIVA's passage, an individual who committed in-person voter impersonation already risked a felony prosecution in order to cast one (1) vote. The recent conviction of Jack Villamaino (R-MA), on the other hand, entailed the casting of more than 300 fraudulent absentee ballots by a single individual.

Prior to approving VIVA, the Assembly heard testimony which detailed that African-Americans in the state are more than three times as likely as white voters to lack a government-issued Photo ID. They are 3.5 times more likely than whites to not own a vehicle. The NC Legislature was aware of the undue burdens imposed upon minorities and the poor in obtaining the requisite IDs. The Legislature knew that 86% of absentee ballots were cast by white voters, while only 9% of absentee ballots are cast by African-Americans. Under VIVA, those who vote in person must possess the state-approved Photo ID, yet a "voter who casts an absentee ballot is not required to present photo identification at any point during the voting process process, as long as he or she provided an accurate driver’s license number or social security number during the registration process," according to the NAACP complaint.

The complaints present similar evidence of previously known disparate impact on each of the other challenged VIVA provisions, and to the absence of legitimate countervailing reasons for adopting those provisions. For example, VIVA lopped off seven (7) of the 17 days previously afforded for early voting, even though, during the 2012 General Election, North Carolina experienced the tenth longest waiting times to vote. Last year, according to the complaints, Florida, which lopped off six early voting days, not only experienced the worst waiting time in the nation, but a 10.7% reduction in total votes cast as compared to the 2008 General Election --- this despite a court order obtained by the Democratic Party in Orlando to keep the polls open for those in line. VIVA seeks to lock in the disproportionate suppression of the African-American vote by forbidding NC election officials from keeping the polls open to accommodate the long lines when necessary.

Underpinning the argument that VIVA was racially motivated, the complaints note: "Not a single African-American member of the House or Senate voted for it."

DoJ's Golden Opportunity

As The BRAD BLOG reported last month, the DoJ began to back up the U.S. Attorney General Eric Holder's recent promise to use "every tool" at its disposal, by filing a July 25, 2013 Statement of Interest in Perez v. Texas, a federal court case challenging the imposition of new Congressional redistricting maps in the Lone Star State. Relying upon two previous federal findings last year that the map was the product of deliberate discrimination that violated the 14th and 15th Amendments to the U.S. Constitution and Section 2 of the VRA, the DoJ is now seeking an order compelling the State of Texas, over the next ten years, to submit all future election law changes to the DoJ for preclearance. It relied upon Section 3(c) of the VRA which affords a district court judge with the discretion to fashion an equitable remedy where such violations occur, including "bailing-in" a jurisdiction to require preclearance for new election laws.

While the existence of a prior finding of deliberate discrimination made Perez an ideal case in which to seek to create preclearance as an equitable judicial remedy --- as opposed to a Section 5 remedy that, thanks to Shelby County, now requires a new Act of Congress that reinstates Section 4 under a new formula calculation --- the evidence recited in the newly filed North Carolina lawsuits suggests that VIVA provides a golden opportunity to expand Section 3 preclearance well beyond the boundaries of those jurisdictions that had formerly been "covered" by Section 5.

Despite its long history of racial discrimination, only 40 of North Carolina's 100 counties were "covered" by Section 5. But thanks to that coverage, all statewide laws needed to meet federal VRA Section 5 requirements. The attempted enactment of VIVA itself, however, reveals that "the scourge of discrimination" is a statewide problem in the Tar Heel State --- a problem that warrants statewide preclearance to prevent its recurrence.

Indeed, the DoJ is positioned to argue that the real problem with Section 5 is its outdated assumption that the need for preclearance is primarily a regional problem, limited to jurisdictions with past histories of discrimination. In reality, VIVA is but one example of the coordinated, nationwide GOP voter suppression effort that was aptly described by civil rights litigator Judith Browne Dianis, in testimony before a Senate Judiciary Subcommittee as "the largest legislative effort to roll back voting rights since the post-Reconstruction era."

The effort is national in character because it has been concocted by the Koch brothers-funded, Paul Weyrich co-founded American Legislative Exchange Council (ALEC).

The speed with which the NC GOP was able to ram through what the NAACP described as an "armada of amendments" to VIVA would surprise only those who are unfamiliar with the ALEC scheme to privatize the legislative process; secretly drafting, delivering and, in those states where the GOP maintains a legislative majority, passing an ALEC-model bill, like Photo ID, sans any meaningful public debate.

Similar bills have been introduced in various state legislatures by one or more of some 2,000 ALEC legislative members. Was it a coincidence that Sen. Tom Apodaca (R), who, within hours of the Supreme Court's decision in Shelby County announced, "Now we can go with the full bill," just happens to be a legislative member of ALEC?

"Before the bills are publicly introduced in state legislatures by ALEC politicians or alumni in the governor’s offices," according to Lisa Graves, whose Center for Media and Democracy obtained copies of more than 800 ALEC model bills, "they will be cleansed of any reference to the secret corporate voting or who really wrote them."

If the DoJ were to intervene as a party plaintiff in the NC federal lawsuits, it would be positioned to learn, through civil discovery, whether this racially-motivated effort to disenfranchise African-American citizens in the Tar Heel State originated in the private confines of an ALEC legislative task force. The DoJ would then be positioned to follow these ALEC-model voter suppression bills into every state in which they have been introduced, thereby opening the door to seek Section 3 preclearance "bail-in" remedies in every jurisdiction that has adopted them.

A nationwide conspiracy to violate rights guaranteed by the U.S. Constitution and the Voting Rights Act requires a nationwide response by the nation's chief law enforcement agency, the DoJ. Time will soon tell whether Holder's promise to use "every tool" to fight racial discrimination in voting laws was heart felt, or more empty rhetoric from the Attorney General. The suits now filed in NC offer a golden opportunity to make good on that promise.

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UPDATE: Today, the DoJ filed a new lawsuit, United States v. Texas, alleging the Lone Star State's polling place Photo ID law violates Section 2 of the VRA as well as the 14th and 15th Amendments to the U.S. Constitution. A copy of the DoJ's complaint is embedded in the Washington Post's coverage, which also notes that the "Department is looking at challenging a new law in North Carolina."

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Ernest A. Canning has been an active member of the California state bar since 1977. Mr. Canning has received both undergraduate and graduate degrees in political science as well as a juris doctor. He is also a Vietnam vet (4th Infantry, Central Highlands 1968). Follow him on Twitter: @Cann4ing.