DoJ, ACLU, others seek to block sweeping GOP election reform under still-standing provisions of federal Voting Rights Act
Plaintiffs cite state's recent history of attempted discriminatory voting practices...
By Brad Friedman on 7/7/2014, 12:07pm PT  

[This article now cross-published by Salon...]

The case against North Carolina's radical voter suppression law begins hearings today, as the U.S. Dept. of Justice, the ACLU, the League of Women Voters and other plaintiffs seek a preliminary injunction on the most sweeping and restrictive "election reform" bill in the nation.

After Republicans took over both the legislature and the Governor's office in the Tar Heel State for the first time since Reconstruction, they instituted what we described after passage of the law in 2013 as "the nation's most restrictive voter suppression law".

In addition to draconian polling place Photo ID restrictions (despite any evidence of in-person voter impersonation in the state), the legislation also shortens the early voting period; eliminates NC's very successful same-day voter registration program; eliminates pre-registration for 16- and 17-year olds; bars counting provisional ballots cast in the right county but wrong precinct; prohibits extending poll hours even for extraordinary circumstances such as long lines; allows any registered voter in a county to challenge the eligibility of anyone else to vote in the same county; and much more.

Virtually every anti-voting provision that has been passed or attempted to be passed by Republicans across the country was included in NC's legislation. After House Bill 589 --- known officially as the Voter Information Verification Act (VIVA) --- was originally adopted in July of 2013, then signed days later by Gov. Pat McCrory (R), we explained it to be "the whole ball of wax. Everything that a Republican desperate to stay in power by keeping legal (Democratic-leaning) voters from being able to cast their legal vote could ever want, short of a provision declaring outright that 'Non-Republican voters need not apply'."

As the hearings begin, the Winston-Salem Journal's coverage over the weekend drew a bead on just how transparently partisan this legislation is, as it ballooned from 16 to 57 pages just days after the U.S. Supreme Court gutted the federal Voting Rights Act, before the law was adopted by both the state House and Senate in just two days...

On June 25, 2013, the U.S. Supreme Court issued a landmark ruling that many civil-rights activists saw as a gut-punch to the Voting Rights Act of 1965.

The court struck down Section 5 of the Voting Rights Act that required states and other communities to seek federal approval for changes in voting laws. Forty counties in North Carolina had been under the Section 5 requirement.

According to motions filed by opponents, the House had passed that April a smaller version of House Bill 589 that only dealt with requirements for photo ID. Then it sat in a Senate committee for several months before it was revived again after the Supreme Court ruling, the motions said.

The same day that the Supreme Court issued its ruling, Sen. Tom Apodaca, the chairman of the Senate Rules committee, was quoted as saying, "Now we can go with the full bill."

Nothing happened until July 23, 2013, when House Bill 589 expanded from 16 pages to 57 pages and included a number of other provisions, including reducing the days for early voting. The expanded bill passed both the House and Senate on July 25. McCrory signed the legislation into law on Aug. 12.

41 pages of new, radically restrictive voting provisions were added to the bill and then jammed through by both chambers of the legislature with only two days of "debate" and no public comment period.

After passage of the law, Ari Berman wrote at The Nation that "The legislation is likely to be deeply unpopular." Indeed it has been. The law was just one of several radical Republican laws that have helped to spark the state's massive Moral Mondays protests over the past year.

"For example, 56 percent of North Carolinians voted early during the 2012 election," Berman explained at the time. "Blacks used early voting at a higher rate than whites, comprising a majority of those who voted absentee or early. According to Public Policy Polling, 78 percent of North Carolinians support the current early voting system and 75 percent have used it in the past."

"In addition," Berman continued, "over 155,000 voters registered to vote and voted on the same day during the early voting period in 2012. 'Voters expressed their satisfaction and gratitude that North Carolina had a process that afforded citizens with more opportunities to register and vote,' said a 2009 report from the state board of elections."

In the last several years, prior to the Republican takeover of the state, North Carolina had actually become rather progressive in its voting laws, particularly for a southern state, including successful adoption of same day registration and other inclusive voting practices that even some of the most progressive states in the union still do not offer.

But it wasn't always so, as the Journal's Michael Hewlett notes, the state has a very bad modern record of attempted voter suppression, which had been held in check for decades only by the provisions in the Voting Rights Act now gutted by SCOTUS:

In the preliminary motions filed by the U.S. Department of Justice and other plaintiffs, including the state NAACP, the history of racial discrimination in North Carolina is told.

That history includes references to poll taxes and literacy tests that were used against black voters. Up until 1970, the motions said, blacks were still forced to read parts of the U.S. Constitution in order to vote in some parts of the state.

Between 1971 and 2012, the Justice Department objected 64 times to changes in North Carolina's voting laws that were subject to federal approval under the Voting Rights Act, according to the motions.

In other words, the VRA blocked suppressive, discriminatory voting measures in the state 64 times over the past four decades. Nonetheless, the Rightwing Supreme Court majority found last year, in its 5 to 4 decision in Shelby County, AL v. Eric Holder, that "Nearly 50 years [since the passage of the VRA] things have changed dramatically."

Writing for the majority, Chief Justice John Roberts declared that the VRA's formula for determining which jurisdictions (like North Carolina) are subject to federal preclearance of voting laws "is based on decades-old data and eradicated practices."

"The conditions that originally justified these measures no longer characterize voting in the covered jurisdictions," Roberts wrote. "Today the Nation is no longer divided along those lines, yet the Voting Rights Act continues to treat it as if it were."

And, it seems, based on the rush by Republican-controlled states like North Carolina to pass new voting restrictions that they clearly recognize would have never passed muster under Section 5 of the VRA, those jurisdictions must still be kept, somehow, from enacting purposely discriminatory voting restrictions.

NC's sweeping voter suppression provisions, enacted only after the Supreme Court made it possible for them to do so, proves the Court's dissenters were correct.

"Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet," Justice Ruth Bader Ginsberg correctly wrote on behalf of the Court's minority.

Hearings on the Motion for Preliminary Injunction begin today in U.S. District Court and "will last four to five days," according to the Journal. If plaintiffs are successful in arguing that they are likely to succeed on the merits of the case, that the law violates the Voting Rights Act's still-standing Section 2 barring discriminatory voting laws, HB 589/VIVA --- or various parts of it --- could be put on hold until after a full trial, which is not expected to begin until the summer of 2015.

Further, the U.S. Dept. of Justice is also asking the court, for the first time, to apply Section 3 of the Voting Rights Act. That Section of the federal law allows for jurisdictions shown to have a history of racial discrimination to be added to the list of those requiring federal preclearance for voting laws. Currently, no jurisdictions are covered, since SCOTUS struck down the VRA's previous coverage formula and Republicans in Congress continue to block the bi-partisan Voting Rights Act Amendment to fix it. North Carolina would be the first jurisdiction added by a Court under Section 3.

The federal case in NC is being watched closely, following on the heels of a federal court which recently struck down Wisconsin's polling place Photo ID restriction as unconstitutional and a violation of VRA Section 2, finding it "absolutely clear" that the Badger State's voting restriction "will prevent more legitimate votes from being cast than fraudulent votes."

The WI case is being appealed and similar federal challenges are pending in both Texas and Arkansas.

The U.S. District Judge presiding over the case in North Carolina, Thomas D. Schroeder, was nominated to the court in 2007 by George W. Bush. While its not known for certain how quickly the Judge will rule on the motion as we barrel towards the 2014 general elections, according to the Journal, "Chris Brook, legal director of the ACLU of North Carolina, said Schroeder has indicated he understands the urgency and will issue a decision soon after the hearings are over."

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UPDATE: Ari Berman's report from the courtroom on today's proceedings is published at The Nation. From his report:

According to expert witness Charles Stewart, a political scientist at MIT, if the law had been in effect in 2012, "over 30,000 African Americans who registered during the same-day registration period would have been unable to register during that period, almost 300,000 [black] early voters would have been shoehorned into more congested early voting and Election Day voting sites, and at least 2,000 African- American voters would have had their out-of-precinct votes left uncounted."

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UPDATE 7/9/2014: My interview with Ari Berman outside the courtroom in NC, just after hearings ended on Wednesday is now here, detailing how this federal case against the state's GOP law will help determine how the Voting Rights Act is now used --- after the Supreme Court's gutting of the Voting Rights Act in 2013 --- to protect voters across the entire country. In other words, this case may well be as important to the entire nation as it is to NC.

UPDATE 7/10/2014: Berman wraps up in NC for now with "ten takeaways" after his week in court watching the hearings. There's a lot of good information to read there, but most telling might be this passage:

In 1965, black registration lagged fifty points behind white registration in the state. Decades after the passage of the VRA, the gap narrowed but remained significant. That changed starting in 2000, with the adoption by the legislature of early voting (2000), the counting of out-of-precinct provisional ballots (2005) and same-day registration (2007). North Carolina became one of the most progressive states in the country with regard to voting rights. As a consequence, black turnout increased 65 percent from 2000 to 2012 --- in 2008 and 2012, African-Americans registered and voted at a higher rate than whites for the first time in state history.

A year later the legislature repealed the reforms that boosted black participation. "In one bill, they obliterated what many of us worked on for twenty to thirty years to increase voter participation," [state Senator Dan Blue, the Democratic minority leader] testified.

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