Friday, August 23, 2013

Three Questions That Will Decide the Fate of Voting Rights in North Carolina

Three Questions That Will Decide the Fate of Voting Rights in North Carolina


A supporter of the North Carolina NAACP holds stickers for those gathered in the House chamber of the North Carolina General Assembly, Wednesday, April 24, 2013. (AP Photo/Gerry Broome)
Three lawsuits have been filed challenging North Carolina’s new voter suppression law, which I called the worst in the nation and Rick Hasen says is the most restrictive since the passage of the Voting Rights Act in 1965. Now comes the question: Will the challenges be successful? Here are three factors that will decide the outcome in North Carolina and the future of the VRA and voting rights more broadly.
1. Can Section 2 replace Section 5 of the VRA?
Conservatives opposed to Section 5 of the Voting Rights Act strenuously made the argument before and after the Supreme Court’s decision in Shelby County v. Holder that Section 2 was an adequate replacement for Section 5, which forced states with the worst history of voting discrimination to approve their voting changes with the federal government. “Our decision in no way affects the permanent, nationwide ban on racial discrimination in voting found in Section 2,” Chief Justice Roberts wrote for the majority. Testifying before the House, Hans van Spakovsky of the Heritage Foundation called Section 2 “the heart of the VRA” and said “there’s no reason for Congress to take any action” to resurrect Section 5 with a new coverage map.
This is a clever and disingenuous marketing job. In truth, Section 2 has been used mostly to challenge at-large election schemes and to protect majority-minority districts during redistricting, and has been narrowed in recent years by the Supreme Court, most recently in Bartlett v. Strickland in 2009. The Department of Justice hasn’t filed a Section 2 lawsuit since 2009 and no major voting restrictions were blocked under Section 2 during the last election. It’s difficult to challenge voting changes before they go into effect under Section 2 and the cases often take years and millions of dollars to defend. “This is one of the fixes we need from Congress,” says Spencer Overton, a professor at George Washington University Law School. “We need some better, clearer standards for Section 2. The law is not well-developed.” Moreover, the more cases that are filed under Section 2, the more likely it is that anti-VRA conservatives will challenge its constitutionality.
Under Section 5, the burden would have been on North Carolina to prove that its voting changes were not discriminatory. Given the overwhelming facts of disparate racial impact in the law, DOJ or the courts would have almost certainly blocked its implementation. The strong evidence of racial discrimination in this case shows the urgent need for Congress to resurrect Section 5.
The outcome under Section 2 “will depend on a lot of discretionary factors instead of a straightforward law, which is why Congress needs to update the VRA,” says Overton. “It’s uncharted territory, so no one really knows what will happen,” says Dale Ho, director of the ACLU’s voting rights project. The federal lawsuits have been assigned to Judge Thomas Schroeder of the Middle District of North Carolina, a George W. Bush appointee regarded as an establishment Republican.
2. Did North Carolina Republicans intentionally discriminate against minority voters?
Lawsuits brought by the North Carolina NAACP and the ACLU ask that North Carolina be covered under Section 3 of the VRA, so that they must seek federal approval of their voting changes for a period of time, based on a “preponderance of evidence” of intentional discrimination. DOJ recently asked a court to do this with Texas. “The General Assembly has discriminated against African Americans and other voters of color in violation of the Fourteenth Amendment, and thus coverage under Section 3(c) is mandated under the Voting Rights Act,” the ACLU plaintiffs in North Carolina write.
The lawsuits argue that clear evidence of the law’s discriminatory burden on African-Americans—who were disproportionately more likely to lack ID and to use early voting and same-day voter registration, for example—was presented during the legislative debate and that Republican sponsors of the bill did nothing to alter the legislation. “After Shelby County v. Holder, the courts are going to have to take these intent claims seriously,” says Penda Hair, co-director of the Advancement Project, which filed suit on behalf of the North Carolina NAACP.
But North Carolina could argue, like Texas, that its law was simply aimed at disenfranchising Democrats, not minorities, and thus is not intentionally discriminatory. Proving intentional discrimination in court is very difficult. One change Congress could easily make is for Section 3 to cover voting changes that have a discriminatory impact, not intent. Under that standard, North Carolina would almost certainly have to clear its voting changes with the feds for a period of time.
3. Will voter suppression efforts produce an electoral backlash among minority voters?
It’s almost considered a truism today that laws meant to disenfranchise minority voters will motivate more minority voters to cast a ballot in order to defend their most sacred right, since that’s what happened in 2012. But the backlash against voter suppression in the last election was the result of a number of unique factors: an extremely well-organized and well-funded Obama campaign, a poorly run Romney campaign that did almost no outreach to minority voters and the fact that many of the new voting restrictions were blocked or repealed in key battleground states like Ohio, Wisconsin and Pennsylvania.
We shouldn’t assume that such a backlash will become the new normal, especially as more onerous laws are put on the books in the wake of the Supreme Court’s decision. “The 2012 election was an anomaly, because of the candidate and campaign at the top of the ticket,” says Overton. “In primaries, off-year elections, midterms, the resources aren’t there to mobilize people to the polls.” And even if the impact of a new voting restriction is ultimately tempered or overcome, that doesn’t make attempts to restrict the right to vote any less immoral. “I hope there is a backlash,” says Hair. “I hope everyone is so angry in North Carolina about efforts to take away their right to vote that they redouble their efforts. But you shouldn’t have to redouble your efforts in order to vote.”
That said, North Carolina is one of the states where you could potentially see a higher turnout as a result of the legislature’s draconian overreach. First off, the Republican legislature is deeply unpopular, with a 20 percent approval rating, and so is the new voting bill, with 39 percent approving and 50 percent disapproving. Seventy percent of moderates and 72 percent of African-Americans dislike the legislation. Second, the well-organized Moral Monday coalition has been mobilizing people against the legislature’s actions for months and is strongly positioned to get a lot of people to the polls. Third, the litigation against the law will keep this story in the news and make more people aware of its onerous details. Fourth, there is a competitive Senate race in North Carolina that could decide the balance of power nationally, with Democrat Kay Hagan likely facing North Carolina Speaker of the House Thom Tillis, who was named “legislator of the year” by the American Legislative Exchange Council in 2011 and is closely tied to all of the unpopular legislation passed by the General Assembly.
Republicans have done everything possible, through aggressive racial gerrymandering and onerous new voting restrictions, to protect their majorities in 2014 and beyond. In so doing, they’ve alienated a large segment of the electorate. The next election will be a good test case of the extent to which power-hungry politicians can successfully manipulate the democratic process in order to thwart the will of the people.
CORRECTION: I initially wrote that Section 2 has been used mostly for redistricting, which isn't true. Of the 1,265 successful Section 2 challenges, according to voting rights historian Morgan Kousser, 70 percent challenged at-large elections, which have been used since the passage of the VRA to thwart growing minority voting power, and 12 percent related to redistricting. "What should be emphasized," says Kousser, "is a point that you and I and many others have made before: Section 5 has primarily stopped local changes, and Section 2 has stopped changes that were already in place or in areas not covered by Section 5.  While it may be that big statewide redistricting and voter id changes will attract Section 2 lawsuits, election laws in small towns and rural areas, and even in substantial cities, will either go unnoticed or be ineffectively attacked or the expense will drain voting rights lawyers." It's also worth noting that 85 percent of DOJ objections under Section 5 were to local election changes that are unlikely to be challenged under Section 2.

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  • Rosemary Potter
    These Republican Governors have no shame.  What they seem not to realize, the citizens of these States will not sit back and allow voting suppression to continue.  2014 is becoming more, and more for a bigger voting turn out by those that don't want their vote suppressed.  I have a good idea that with a large turn out no matter how long the lines, no matter how difficult it becomes to vote, citizens of these states need to come together and show the Republican party as a whole, they will not stop people from voting.  There ARE consequences to their actions.  2014 a push for all those concerned about our freedoms need to come out to vote.  The GOP  need to be voted out of Government.  We live in a democracy.  OUR VOTE SHOULD NOT BE SUPPRESSED.  With the Democrats back in Government, all our rights and freedoms will be restored.
  • Watitis


    Oh! I can't resist this one... Crabby remember the
    2000' nationals, and Florida's electoral handing the presidency to GW Bush?
    Dude your party was screaming to high heaven, so if "voter fraud" could
    influence even 1/2 of a percent of the vote in 2000, should it be a concern?
    Hmmmm. Crabby your partisan idolatry is so embarrassing!   
  • TKinSC
    “The General Assembly has discriminated against African Americans and other voters of color in violation of the Fourteenth Amendment...."
    If lawyers wrote this, shame on them.  Every high school civics student knows that it is the Fifteenth, not the Fourteenth Amendment, that prohibits racial discrimination in voting.
  • bruno de berardis, Ingegneria Online su www.deberardis.it
    da www.deberardis.it
    ottima posizione ed iniziativa
  • SandyHands
    Why don't we just make everybody show a photo ID to vote like almost every other developed country?
  • svbackstreets
    They have national IDs that everyone has.  Do you want that?
  • SandyHands
    Uh, you mean a federally issued national ID like a passport? I already got one.
  • FGFM
     Costs at least $55 just for the card.
  • darthchris67
    Back when the Abu Ghraib photos came out, Rush Limbaugh said that the things going on in the photos was no worse than fraternity hazing and pranks.  Now no one outside of the US believed that for an instant, but the purpose of those statements wasn't to justify the actions or explain them.  It was to provide a way of looking at and defending the pictures for people who supported the Bush/Cheney agenda in a way that salved their conscience and allowed them to continue to support it.  But the rest of the world, and the rest of the people in the US, knew what the pictures represented.
    In the same way, all of the justifications for requiring IDs to vote to prevent voter fraud, reducing the number of extra voting days/times,  ending same-day registration, etc. are for those people who already believe in the Right Wing Agenda.  The people whose votes these acts are aimed at suppressing know what's going on, and all the excuses given by people on this thread and in the media are little more than pleasant fictions to ease their minds.  Those who came up with these ideas made sure that they would not inconvenience their base, used focus groups to test the language and rationales, then let their paid lackeys get the ball started.
  • limoman
    The ONLY question of relevance will be is requiring a voter ID  discrimination. And with the Sharptons and Jacksons and the Jealouses  and the Bermans out there crying wolf over EVERYTHING they don't agree with,  the possibility of that happening diminishes with each day and every false claim.
  • crabwalk
     You are just like those guys!
    BENGHAZI!!! BILL AYERS!!!
  • crabwalk
    Getting an approved  ID is no "hassle"?
  • Peachy
    The examples in that are pretty lame.  One woman couldnt vote in Indiana because they wouldnt accept her Illinois drivers license.  Well, duh.  I dont know too many states that will accept an out-of-state DL to be allowed to vote in another state.  And how is that an example of getting a FREE Id being a hassle?  In fact, all of those examples do nothing to show getting a free ID is a hassle.  One said a woman didnt have a birth certificate.  There are about 2 dozen different forms of ID that could be acceptable.
  • crabwalk
    Yes, no doubt using a mobile phone bill  to "prove " ones identity will root out the massive impersonation fraud...
    Which neither the NC GOP nor ANY conservative poster here can show exists.
    But hey, again, who cares if there is a need, conservatives love government regulation and higher taxes, when myth and fallacy are the basis of the "need". But, if there is actual need, like not polluting one of the nations clean water aquifers...then government is BAD BAD BAD! 
  • Peachy
    So because you think there isnt a lot of voter fraud out there (there is) that we shouldnt have a voter ID law? I dont think there's a lot of cannibalism out there either but its probably a good idea to keep that law. Fact is the majority of the country is in favor of voter ID laws. And North Carolina will give them a free ID. FREE! But leave it to liberals to whine about trying to prevent voter fraud.
  • limoman
    Yes peachy very lame .  But the crabman is the king of lame responses when it comes to this issue . All of those old folks who  the NAACP claims cant vote are all receiving  medicare/medicade  as well as social security. How does one suppose they are receiving those without being able to identify  themselves.
  • crabwalk
    The reality: they ARE receiving them.
    Perhaps you could supply me with the stats on voter impersonation fraud in NC?
    Or would that be lame, to have to back up your claims with some facts.
    Done with you, tired of trying to unwrap the idiot from a moron. It is just scary that you get to vote, even with an ID. This is our problem, not Zombie Voters...ignorant people being allowed to vote. Voting based on myth, misinformation and stereotype. Dead people voting could do a better job, their brains at least probably worked at on time.
  • limoman
    Good job crabby, citing the  NAACP.
     The same NAACP that called for the secret service and the DOJ  to investigate a rodeo clown just the other day  .  
  • crabwalk
     Way to glom onto the latest Celebrity Entertainer Talking Point. Beats having to produce any facts to bolster your argument.
  • limoman
    LAS VEGAS, Nev. (KMOX) – The President of the Missouri Chapter of the National Association for the Advancement of Colored People (NAACP) says a rodeo clown act depicting President Barack Obama at the Missouri State Fair Saturday night was a hate crime.
    “I think that a hate crime occurred,” Mary Ratliff told KXNT Radio in Las Vegas Thursday. ”I think a hate crime occurs when you use a person’s race to depict who they are and to make degrading comments, gestures, et cetera, against them.”
    Keep using the NAACP as a "credible " source for your facts crabby . 
  • FGFM
    The NAACP didn't call for anything, someone at a state level said that.
  • crabwalk
     "It's not unheard of for a rodeo clown, depending on how he reads his audience, to play politics a little bit,But this crossed a line. Clearly, when you're suggesting that the
    president should be injured, it kind of gets to a level of hostility
    that is inappropriate."-Jim Bainbridge, the senior public relations coordinator at the Professional Rodeo Cowboys Association
    But, I am arguing with an amateur clown that gets his news from Celebrities and their weekly talking points. Yep, a clown that joins in with Islamo-fascists in burning the Commander in chief in effigy. How patriotic is that!
  • unknown510
    Since you are obviously outraged by this display of disgrace to our Commander in Chief, I would hope that you would show the same emotions about this identical instance of mockery and indignity to the very Republican, George HW Bush: http://www.washingtontimes.com... can you not muster the same fervor for injustice based simply on you're political affiliations?
  • limoman
    Idiot , moron , clown,  islamo fascist .
    I guess this is how the "informed "  liberal   talks  to the "uninformed"   who dares to disagree with him .
    Shame on you crabby .
    As peachy said above "pretty lame"
  • crabwalk
    Question #1:
    Is there a problem with voter impersonation in N Carolina.
    If not, why the expansion  of government  regulation and higher taxes (to pay for the "free ID"?

    answer: There is no evidence that voter impersonation is a problem in N Carolina, or any other state. The purpose of Voter ID laws and more restrictive voting procedures is to limit citizen access to voting booths. Period.
    The reason we have restrictive gun laws is because +-30,000 Americans get dead annually from gun shots, and crimes committed with firearms occur daily.  The number of voter impersonation crimes is minuscule. Even in court the proponents of Voter ID cannot produce any statistics or studies to back up their claims of massive voter fraud.
    But,, if you conservatives want more government regulation and higher taxes to prevent minuscule occurrences...core values and all that rot go out the door and we know that all of that rhetoric is just that, empty rhetoric that can be abandoned on a whim. Like respect for the Commander in Chief while at war, a "core value" that went out the door in a moment.
  • Don
     More people die in car accidents a year, crabwalk do we ban cars and most of those 30,000 gun deaths are from crimnals killing people in liberal hell holes like Chicago and Detroit.  We are a nation of 300,000,000 and 30,000 people less than one percent of our people die a year due to gun violence and we need to ban guns.  Liberal nonsense at it's finest.
  • limoman
    And your "core value" crabby is that you are obsessively against conducting fair elections.
  • crabwalk
     "When one has to make things up to make his point then it seems clear you don't have a point to make. "-LIMOMAN May 26, 2012
  • Peachy
    nm
  • Peachy
    Also, and this is a very important piece those on the left keep leaving out for some reason, the state of North Carolina will provide ALL of its citizens with a FREE state-issued ID card.  They will give them one, FREE!  So how can it be so bad that they will require an ID card when the state is willing to give them one FREE?
  • justacog
     how much does it cost to get a birth certificate? provide those for free, make sure voting machines are disbursed based on population.  You guys act like there hasn't been a history for voter suppression ever. Why did early voting have to be shortened? so we can have longer lines? Why do you guys always want to make voting harder? and don't give me illegals voting that is a Fox new republican party talking point.
  • Peachy
    You dont have to have a Birth Certificate.  Valid forms of ID to get the FREE ID card are:
    Drivers License
    Original Social Security Card
    Tax forms
    Motor Vehicle Drivers Record
    Certified NC Motor Vehicle Record.
    Non-Certified NC Motor Vehicle Record .
    Certified Out-of-State Motor Vehicle Record.
    School Documents
    Military ID
    Passport
    Certified Marriage Certificate
    NC limited driving privilege
    US Government documents
    Court documents
    Divorce Decree
    Adoption papers
    Court order for child support
    Court order for change of name
    court order for change of gender
    Or....Birth Certificate.
  • limoman
    Amazing how easy it is to get a voter ID .
    Mr Berman  unknowingly reveals the motivation  and the truth  behind all this voter suppression nonsense .
     “I hope there is a backlash,” says Hair. “I hope everyone is so angry in North Carolina about efforts to take away their right to vote that they redouble their efforts.
    This is the ONLY way the left thinks it can win elections  anymore  They know they cant win with their ideas and policies . One need to look no further than Detroit to see where their basic policies lead to .  So lie mislead misinform and agitate to get their loyal voters mad enough to go out and vote . 
  • crabwalk
     Except for the fact that democrats won two presidential  elections without massive voter fraud, took back the house and senate a few times without massive voter fraud, win state elections without massive voter fraud, win municipal elections without massive voter fraud etc etc.
    Other than facts and reality, you might have a point.
    But, maybe Zombie Voters are working your neighborhood, using heffalumps and woozles to gather votes?
  • Watitis
    Oh! I can't resist this one... Crabby remember the 2000'
    nationals, and Florida's electoral handing the presidency to GW Bush? Dude your party was screaming to high heaven, so if "voter fraud" could  influence even 1/2 of a percent of the vote in 2000, should it be a concern? Hmmmm. Crabby your partisan idolatry is so embarrassing! 
  • limoman
    And rodeo clowns are working yours.;)
  • Don
    The laws are reasonable. If I have to show my id to purchase a firearm people can show their id to vote.
  • Peachy
    Exactly.  This isnt about oppressing anyone, just as having to show an ID to open a checking account isnt oppressing anyone or having to show an ID to board a plane isnt oppressing anyone. 
  • crabwalk
     "I don't want everyone to vote" Paul Weyrich, founder of ALEC and author of several Voter Id laws.
    It is ONLY about voter suppression.
  • Peachy
    You need an ID to board a plane, ride Amtrak, buy beer, buy cigarettes, get in a club, open a checking account, enter many public and private office buildings and even qualify for public assistant programs such as medicaid.  So how is requiring ID for all of these things (plus many, many more) different from requiring ID to vote? 
  • Kathy Hurley
    What about portions of the law other than voter i.d.?
  • Peachy
    i see no problem with eliminating same-day registration.  The majority of the states dont allow it so I see no reason why North Carolina cant follow what the majority of the states do.  I do agree that the early voting should be left at 17 days but allowing 10 days isnt that much different, especially condsidering that they will allow the same amount of hours for early voting (.County election officials can either extend hours on a given day or provide more early voting locations.)  But the majority of the crying from the left has been about the ID and thats something I see no problem with.  3/5ths of the states have that law already and opinion polls show the public overwhelmingly support voter ID laws. 
  • Kathy Hurley
    There are a lot of moderates who accept the voter i.d. portion but who, like myself, see this North Carolina statute as a grab bag of measures intended to intimidate certain portions of the electorate.   Did you see the lines in Florida and other places where some folks waited in line 7 and more hours to vote?   That's what happens when early voting days are eliminated.   What about folks who turn 18 just before the election - why should they not be eligible to register early and thus vote when legally able?   And many younger voters do not have a driver's license, but do have a valid college i.d.   Why is that not good enough?   All these measures, taken together, are chilling indeed in my view.
  • Peachy
    As for the college ID; at many colleges in NC you have to have a valid government issued ID in order to obtain (or get a replacement) student ID card.  UNC, East Carolina and Elon are examples of this.
  • Don
    If you voting isn't important enough to you to wait in line your values are flawed.    If you can't get a drivers' license or state id you should not be able to vote.
  • darthchris67
     How many hours are you willing to stand in line and vote?  8 hours?  Will you get fired from your job if you go to lunch to vote and don't come back for seven hours?  How about if you try to vote early and come in 8 hours late?
  • flaglib
    What about those who need to vote on their lunch hour, or after work, why should they have to stand in line for that long?
  • Kathy Hurley
    Waiting in line for seven hours on a work day?   Come on - you honestly cannot defend that sort of thing?
  • Peachy
    Requiring ID to vote isnt suppressing voters right to vote anymore than requiring ID to buy a gun is suppressing the right to buy a gun. 
  • flaglibCollapse
    It is easier to buy a gun then vote, and there is something terribly wrong with that.

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