North Carolina NAACP president, Rev. William Barber, center at podium, gestures as he is surrounded by supporters during a news conference at the Third Street Bethel AME Church in Richmond, Va., Tuesday, June 21, 2016. The press conference was held to talk about the appeal before the 4th U.S. Circuit Court of Appeals on North Carolina’s major rewrite of voting laws in 2013. (AP Photo/Steve Helber)
With the clock ticking down to the presidential general election in November, civil rights attorneys recently took to the court in another attempt to block North Carolina’s HB 589, which constitutional rights activists have called one of the most brutal attacks on minority voting rights in the modern era.
The Fourth Circuit Court of Appeals on June 21 heard oral arguments in NC State Conference of the NAACP vs. McCrory, a case which could have a significant impact on the outcome of the elections, experts say.
“The implications for the upcoming presidential election are huge,” said David Gans, director of the Human Rights, Civil Rights & Citizenship Program at the Constitutional Accountability Center.
“Since the Supreme Court gutted the Voting Rights Act in the case of Shelby County v. Holder in 2013, we have seen a wave of new legislation that makes it harder for racial minorities and others to exercise their constitutional right to vote,” Gans further told the AFRO. “Seventeen states which comprise 70 percent of the electoral votes needed to win the presidency now have new or tougher laws that make it harder for Americans to exercise their right to vote. That’s why we are seeing so many courts cases, such as the one in North Carolina, to enforce the Constitution’s promise of the right to vote for all regardless of race.”
The Fourth Circuit panel that includes Judges Diana Gribbon Motz, James A. Wynn Jr. and Henry F. Floyd has a difficult road ahead as one defense counsel noted the lack of Supreme Court guidance on vote denial cases.
“Believe me, we are aware of that,” Judge Motz replied, according to an audio recording of the hearing posted on the court’s website.
The NAACP and other plaintiffs asked the appeals court to overturn a ruling by District Judge Thomas D. Schroeder upholding HB 589, which truncated early voting by a full week, eliminated same-day registration, prohibited provisional ballots cast out of precinct from being counted, expanded the ability to challenge voters, eliminated a pre-registration program for 16- and 17-year-olds, and implemented a strict photo ID requirement. The provisions, civil rights advocates argue, violated Section 2 of the Voting Rights Act, and also the 14th and 15th Amendments of the U.S. Constitution by intentionally and disproportionately disenfranchising Black and young voters.
Anna Baldwin, an attorney representing the U.S. Department of Justice in its challenge of the law, said there were “critical errors” in the District’s Court legal analysis of the intent behind HB 589.
“The District Court failed to take account of the fact that – even as the defense’s experts testified – in North Carolina the best predictor of voter behavior is not party registration but race,” she said.
A proper intent analysis, she added, would have involved consideration of whether the passage of HB 589 was motivated by the “troubling blend of race and politics” in the state, a framework established by the Supreme Court in League of United Latin American Citizens v. Perry.
“We have to start with the fact that in passing HB 589 the North Carolina Legislature acted to block growing African-American political power just as Black North Carolinians had begun to experience real political gains,” Baldwin cited as evidence of the “troubling blend.”
She also said the District Court erred by using an incomplete metric—the difference between the 2014 and 2010 turnout figures—to gauge HB 589’s impact, failing to consider factors such as the higher-profile Senate race in 2014 and the “extraordinary efforts” undertaken by churches to counteract the law’s restrictions.
Pressed by Judge Motz to offer specific evidence of HB 589’s impact, Baldwin said, “There are thousands of voters under uncontested factual record who were shut out of the political process under this bill.”
She cited more than 12,000 voters who registered after the “book-closing” period who could not take advantage of the state’s previous same-day registration law because of HB 589 and the more than 1,600 voters whose out-of-precinct ballots were not counted.
With the voter ID law slated to be enacted in this election cycle, the impact could be worse, said activists, who have claimed that more than 300,000 voters will actually be disenfranchised by the law’s provisions.
The state’s attorney, Thomas A. Farr argued that the District Court’s “detailed factual findings” were sufficient to show that “intentional discrimination did not take place.”
The judges seemed to question that assertion, however, posing very probing, pointed questions to the attorney, particularly with regards to the Legislature’s timing and intent in passing the bill.
The judges were also particularly concerned with the logistical impact of striking down HB 589 given the fast-approaching election.
North Carolina Senior Deputy Attorney General Alexander McClure Peters argued it would pose a significant burden in terms of money and time needed to rewrite training materials and voter guides as well as retrain poll workers, among other issues.
“Sacrificing voter enfranchisement at the altar of bureaucratic inefficiency or under-resourcing isn’t acceptable,” Riggs argued. “The state board of elections may have set a training for Aug. 8 or 9. To enfranchise voters, that training can be moved. They may have a contract to get proofs for a guide. If a federal court rules that these laws are racially discriminatory and unconstitutional, I think this court’s ruling trumps that. There is ample time to educate the voters, get a remedy in place, and make sure North Carolinians can vote in November.”