Exactly one week from today, at 9:30 AM in Courtroom 1 of the United States District Court for the Middle District of North Carolina in Winston-Salem, opening arguments will begin in NC-NAACP v McCrory - a challenge to Tarheel State Republicans' worst-in-the-nation voter suppression law which will set the stage for similar battles across the nation.
The upcoming Battle of Winston-Salem will be fought on two simultaneous fronts: one just outside the courthouse doors, in the court of public opinion, where thousands of peaceful protesters will march, and teach, and learn, and sing, and pray, and the other just inside those doors, where plaintiffs including the North Carolina chapter of the NAACP, the U.S. Department of Justice, and the North Carolina League of Women Voters have brought suit against Governor Pat McCrory (R) and the State of North Carolina. Plaintiffs seek to overturn HB 589, the Voter Information Verification Act: a sweeping law signed by McCrory in 2013 which slashes early voting days, abolishes same-day voter registration at the polls, reduces opportunities for voters to cast provisional ballots, discourages high-schoolers from registering to vote, requires would-be voters to present government-issued photo IDs at the polls, blocks black churches' previously successful 'souls to the polls' (Sunday after church) get-out-the-vote efforts, lengthens lines at polling places, and much more.
With hundreds of briefs, motions, exhibits and other documents now filed in the case and publicly available, the general outline of what we may expect in NC-NAACP v McCrory has emerged, and it draws an encouraging vision of a mighty battle for voting rights.
Here's what it looks like.
For a suit that has yet to see its opening arguments, NC-NAACP v McCrory has already covered a lot of ground. First filed (August 12, 2013) just days following passage of HB 589, it has already witnessed:
- (5/19/14) Plaintiffs' motion in District Court for a preliminary injunction to halt the application of the new law's provisions until after the 2014 mid-term election
- (8/8/14) Denial of the motion for preliminary injunction
- (10/1/14) Reversal of the denial for preliminary injunction by the U.S. Fourth Circuit Court of Appeals
- (10/8/14) Reversal by the Supreme Court of the Circuit Court's decision
In
their dissent, Justices Ginsberg and Sotomayor wrote (emphasis added):
In Shelby County v. Holder this Court found the [Voting Rights] Act’s Section 4 coverage formula obsolete, a ruling that effectively nullified Section 5’s preclearance requirement. Immediately after the Shelby County decision, North Carolina enacted omnibus House Bill 589 [....] These measures likely would not have survived federal preclearance. The Court of Appeals determined that at least two of the measures — elimination of same-day registration and termination of out-of-precinct voting — risked significantly reducing opportunities for black voters to exercise the franchise in violation of Section 2 of the Voting Rights Act. I would not displace that record-based reasoned judgment.
SCOTUS' decision returned the case to U.S. District Court, for the hearing which begins next Monday.
In yet one final pre-trial twist in this suit, just two weeks ago Republicans in the North Carolina General Assembly unexpectedly rammed a bill through both chambers weakening (but not completely removing) HB589's voter ID requirement. To many observers on both sides of the issue, it looked like a tacit admission that the State viewed its case in NC-NAACP v. McCrory to be weak, and therefore looked to jettison the single weakest link in HB589 as a sacrificial offering. Given the fact that study after study has demonstrated that voter fraud is a nonexistent problem here in North Carolina (and thus that voter ID was a solution in search of a problem), it was a sacrifice that cost the state nothing, while preserving the meatier bits of HB589 - those which make voting itself difficult for the poor, the young, and minorities.
In a recent agreement, both sides in NC-NAACP v. McCrory consented to defer the voter ID component of the case (and only that component) to a later date, in order to give all sides time to better understand how this last-minute legislation may change their arguments.
The Suit in a Nutshell
At its Mass Moral Monday March for Voting Rights web site, NC-NAACP summarizes its upcoming case:
- This case argues that H.B. 589 discriminates against African American and Latino voters in North Carolina, in violation of Section 2 of the Voting Rights Act – which prohibits policies that result in the “denial or abridgement” of voting on the basis of race. The suit also alleges that the law violates the right to vote under the 14th and 15th Amendments of the U.S. Constitution.
- The North Carolina General Assembly knew that this law would discriminate against African-American voters but passed it anyway. Lawmakers were presented with significant evidence that the measure would make it harder for African-American voters to participate in the electoral process.
- African Americans comprise 22 percent of North Carolina voters but made up 41 percent of voters who used same-day registration, and cast out-of-precinct ballots at twice the rate of White voters. Repealing these practices, which voters of color have relied on, imposes substantial burdens.
- Section 2 prohibits practices that result in African Americans and Latinos having less opportunity than other members of the electorate to vote. Poll taxes and literacy tests, for example, are illegal under Section 2 because they make it disproportionately harder for voters of color to participate – not because these practices make it impossible to vote. North Carolina’s law is in clear violation of Section 2’s prohibition on practices that deny or abridge the right to vote.
In the
Defendant's Trial Brief (filed June 29th) the State makes clear how it intends to respond to these allegations:
Since the last time the parties were before this Court, North Carolina has conducted a general election using all of the challenged practices established by 2013 Sess. Laws 381 other than a photo identification requirement. During the preliminary injunction hearing, plaintiffs' evidence substantially consisted of expert testimony by academics. They opined that the "burdens" imposed by SL 2013-381 would deprive African Americans of an equal opportunity to participate in the political process and to elect representatives of their choice [....] Historical facts following the implementation of SL 2013-381 have exposed plaintiffs' "expert" testimony as unfounded academic speculation.
Notwithstanding the opinions of plaintiffs' experts, African American participation in early voting and Election Day voting during the 2014 elections increased as compared to both the 2010 Primary and General Election [....] Given these facts - not known by this Court or the Fourth Circuit prior to the 2014 General Election - plaintiffs cannot prove that SL 2013-381 produces any discriminatory effect.
Depending as it does on the bare observation that black voter turnout in the 2014 election saw an uptick relative to 2010, the State's case appears dangerously weak to many observers. It fails to take into account the palpable outrage among black voters in the face of HB 589's obvious chicanery, which propelled them to the polls in defiance. It likewise pays an unwitting compliment to the plaintiff, NC-NAACP, for the success of the massive voter registration and get-out-the-vote efforts it launched statewide in 2014 in an heroic effort to undo as much of the damage wreaked by HB 589 as possible. Complimenting one's opponents' determination not to be disenfranchised by one's own voter suppression efforts hardly seems like a strong argument.
The Defendants' Trial Brief continues (ad nauseum):
Congress has never enacted legislation that requires states to either establish a process for early voting or that specifies a time frame for early voting [....]
Congress has not enacted legislation requiring states to count all out-of-precinct
ballots [....]
There is no federal law requiring states to implement [same-day registration] for persons who register to vote for the first time during early voting [....]
Congress has not enacted legislation requiring states to “pre-register” 16- and 17-year-olds, or requiring boards of election to conduct registration drives at public schools [....]
When your defense in a federal suit hinges on arguments that a paralegal might have assembled, you pretty much know you're in trouble. No wonder the General Assembly has suddenly jettisoned a strict voter ID requirement: panic over the State's weak case drove them to muddy the water.
In a final futile dig, the defense states:
Plaintiffs’ argument is that minorities are entitled to either the equivalent of election law affirmative action or practices that are favored by political organizations dedicated to maximizing Democratic turnout.
Precisely why the State's
"hey, there's no law precisely against exactly that thing we did!" defense is so weak is addressed masterfully in the
United States Trial Brief, filed by the Justice Department:
In 2013, despite the lack of any evidence of problems with its existing elections process, the North Carolina General Assembly enacted an omnibus elections bill that curtailed opportunities for citizens to register, to vote, and to have their ballot counted [....] The
provisions of HB 589 that the United States has challenged in this lawsuit each fall with special force on North Carolina’s black citizens. These provisions will interact with socio-economic and historical conditions in North Carolina to result in African Americans having less opportunity than other citizens to participate in the political process, in violation of Section 2 of the Voting Rights Act, 52 U.S.C. § 10301.
That unlawful result is no accident [....] North Carolina “rushed” to enact HB 589 “literally the next day” after the Supreme Court’s decision in Shelby County v. Holder, promulgating a “‘full bill’ legislative leadership likely knew it could not have gotten past federal preclearance” — that is, a bill that the State could not have shown would have neither a
discriminatory purpose nor a discriminatory effect [....]
“[Section 2 prohibits] not only voting practices borne of a discriminatory intent,
but also voting practices that ‘operate, designedly or otherwise,’ to deny ‘equal access to
any phase of the electoral process for minority group members.’” (United States v. Charleston Cnty.). Thus, Plaintiffs may prevail by showing that HB 589 has a discriminatory result, was enacted with discriminatory purpose, or both.
In other words, what this case will come down to is the plaintiffs' demonstration (or failure to demonstrate) that HB 589 discriminates against a protected class (racial minorities) either by design or in effect. The evidence regarding discriminatory effect which plaintiffs' experts have amassed is substantial, and HB 589's legislative history of discriminatory intent itself is damning. The plaintiffs' argument continues (emphasis added):
The Fourth Circuit identified the two elements required to establish a Section 2 violation in this case: First, the challenged provision “must impose a discriminatory burden,” meaning that it “disproportionately impact[s] minority voters.” Second, that disproportionate impact
must “in part be caused by or linked to social and historical conditions that have or currently produce discrimination against members of the protected class [....]
Put simply, if black voters in North Carolina have less opportunity than white voters in North Carolina to participate in the political process, it does not matter that they
have more opportunity than black (or white) voters in Mississippi to do so [....]
North Carolina is a state with a significant history of official voting-related racial discrimination. The State first adopted reforms that ameliorated the ongoing effects of that prior discrimination, but then repealed or truncated the reforms that black voters disproportionately used [....]
The Fourth Circuit directed that “a searching practical evaluation” of the “totality of the circumstances” requires an examination of the “sum of [the] parts [of HB 589] and their cumulative effect on minority access to the ballot box” [....] “A panoply of regulations, each apparently defensible when considered alone, may nevertheless have the combined effect of severely restricting participation and competition.”.
Part II of this report, which will appear here this Wednesday, will explore in some detail the data which plaintiffs appear ready to present in order to establish the cumulative effect of HB 589 on minority access to the ballot box in North Carolina.
The Supreme Court's ruling in Shelby v. Holder, gutting the Voting Rights Act, hinged on the inexplicable notion that voting rights discrimination against ethnic minorities no longer exists in today's post-racial Wonderful World of Color™. NC-NAACP v. McCrory will put the lie to that, by calling out North Carolina's own actions which put the lie to it. This case, too, will certainly end up back in the Supreme Court before the dust settles, not merely giving that court one more chance to put down the applesauce and return to its senses, but really forcing it to do so. And that makes NC-NAACP v. McCrory a suit of nationwide importance.
The trial is expected to take about four weeks to complete. Our lawyers will be fighting in the courtroom. Come help us cover their backs, by fighting in the court of public opinion: come to the streets of Winston-Salem on July 13th. All the details you need are here. Look for the friendly orange Daily Kos signs, held aloft, to find our flash-meetup there.
Forward together!
11:09 AM PT: This inspiring email call-to-action just in from NC-NAACP's president, Rev. Dr. William J. Barber (emphasis added):
We are going into one of the most historic weeks of our lives. 49 years and 11 months ago, civil rights leaders, whose steps were covered in the blood of the martyrs, were anticipating the passage of the Voting Rights Act. They would wait 31 more days, until August 6, 1965, for the VRA to be signed into law.
Today we find ourselves fighting to hold on to the very things that they won 50 years ago. This is no small moment and we have all been chosen for this. The moment is bigger than any individual -- it is a collective, Kairos moment. Personally I am glad to be alive and glad to be on this righteous team with you.
I know we were meant to be together, to fight together, and to serve this present age together. So let us do it so well that in the ages to come someone will recall how we served, how we stood, and how we would not turn around.