Hearing on NC voter ID law draws national attention

Rev. John Mendez, of Winston-Salem, shares his story with the protesters at the 13th Moral Monday protest as Rev. William Barber, the president of the N.C. NAACP, looks on. (Andrew Dye/Journal)

Rev. John Mendez, of Winston-Salem, shares his story with the protesters at the 13th Moral Monday protest as Rev. William Barber, the president of the N.C. NAACP, looks on. (Andrew Dye/Journal)

WINSTON-SALEM, N.C. — For Rev. John Mendez, longtime activist and pastor of Emmanuel Baptist Church in Winston-Salem, voting is more than just casting a ballot in a particular election, according to the Winston-Salem Journal.

“I believe that voting is important to the African-American community because it is the only place where powerless people can be powerful,” he said in court papers filed in U.S. District Court in the Middle District of North Carolina as part of a trio of lawsuits challenging the state’s new election law.

“It is where individuals who have been excluded and oppressed can find their voice. Voting makes you feel equal to everyone else, which is not the everyday experience for many African-Americans. At its core, voting gives individuals a sense of dignity.”

Mendez and others believe that the right to vote, especially for blacks, is under attack in the form of the new election law that Gov. Pat McCrory signed last August. The law, referred to in lawsuits as House Bill 589 and known officially as the Voter Information Verification Act, includes a number of provisions, the most well-known being the requirement that voters present a photo ID, beginning in 2016.

But the law also reduces the number of days for early voting from 17 to 10, eliminates same-day voter registration, and prohibits county officials from counting ballots cast by voters in the right county but wrong precinct. In addition, the law gets rid of pre-registration for 16- and 17-year-olds, increases the number of poll observers that each political party assigns during an election and allows a registered voter in a county to challenge another voter’s right to cast a ballot.

On Monday, U.S. District Judge Thomas D. Schroeder will hear arguments on whether to block many of the law’s provisions from taking effect during the Nov. 4 general election in a case that’s being closely watched across North Carolina and throughout the country.

“It’s the single biggest law curtailing voting and registration rules that we have seen since the passage of the 1965 Voting Rights Act,” said Rick Hasen, a professor who specializes in election law at the University of California at the Irvine School of Law. “It’s not any single provision that is worse than. It’s all just rolled into one.”

Law found beginnings in U.S. Supreme Court ruling

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.

Hasen said legislators in North Carolina would never have been able to pass the elections law so quickly if the U.S. Supreme Court had not gotten rid of federal pre-clearance rules. The Supreme Court ruling also paved the way for Texas to start enforcing its Voter ID law, which Hasen called one of the most restrictive in the country.

Opponents charge that the Republican-led General Assembly and McCrory rushed through this law to disenfranchise blacks and Hispanics, elderly voters, young voters and poor voters.

The issue of racism runs through the court papers filed in the case. 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.

Opponents argue that between 1999 and 2009, state legislators approved changes in elections laws, including early voting, that improved voter turnout and led to North Carolina being ranked 11th in the country for voter participation. All those changes are targeted in the new election law, they say, and the curtailment or elimination of those changes disproportionately affects black voters.

‘Equal opportunity’

In court papers, state attorneys argue that the law isn’t racially motivated and that the Voting Rights Act of 1965 only guarantees an “equal opportunity” to vote. State legislators, they say, have the authority to draft legislation regulating the time, place and manner in which elections are held and said that Congress doesn’t require that states provide things such as early voting or that states have to count provisional ballots.

“Returning North Carolina to rules in place prior to the fairly recent enactment of the rules changed by the challenged provisions no more violates the law now than it did in the absence of the voting practices favored by the Plaintiffs,” state attorneys argue in court filings.

McCrory issued a statement when he signed the law saying that 34 other states have passed laws requiring voters to present a photo ID and that it would not unduly burden voters. Some Republicans have cited the need to guard against voter fraud, even though statistics from state elections officials indicate that there is no widespread in-person voter fraud.

Specifically, state attorneys argue that opponents are trying to squeeze the requirements of Section 5 of the Voting Rights Act of 1965 into Section 2. They say it simply doesn’t fit.

“There is no “neutral” practice here that prevents them from registering or voting on the same terms and conditions as other members of the electorate,” state attorneys argue. “Instead, each and every voter has the ability to control his or her own conduct as it relates to registering to vote and voting according to the rules that apply to everyone.”

A closely watched outcome

The hearings in U.S. District Court in Winston-Salem will last four to five days. It’s unclear whether Schroeder will issue a decision immediately after the hearings’ conclusion or at a later time. 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.

Schroeder will not only have to decide whether to grant a preliminary injunction. He will also have to decide whether to dismiss the lawsuits, which state attorneys have requested. A trial on the lawsuits isn’t expected to commence until summer 2015.

Hasen said the case will be closely watched because North Carolina’s law is unique, Hasen said. Opponents challenging election laws here in North Carolina and in Texas are using Section 2 of the Voting Rights Act, he said.

“These are the first cases involving Section 2 of the Voting Rights Act” where the U.S. Department of Justice has gotten involved, Hasen said.

And in the lawsuits, the justice department is asking for extraordinary relief under Section 3 of the Voting Rights Act, which would allow a court to subject a state to federal approval for voting changes if it found intentional racial discrimination.

Brook said that no state has gone as far as North Carolina. The ACLU represents several of the plaintiffs in the lawsuits and preliminary injunction, including the League of Women Voters.

“This is really the mother of all voter suppression measures,” he said.

Brook called the measures “unnecessary restrictions that cut right to the core of democracy and serve to exclude marginalized North Carolinians at the ballot box.”

“No one should be comfortable with that,” he said.



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