Huge victory for voting rights comes on heels of similarly encouraging decisions against GOP Photo ID voting restriction in TX, WI...
By Brad Friedman on 7/29/2016, 11:30am PT  

The 4th U.S. Circuit of Appeals has struck down all of the very worst provisions of North Carolina's voter suppression law, which we originally described, after it was enacted in 2013, as "the nation most restrictive voter suppression law" and "the worst since the Jim Crow era". Others have described it as "the mother of all voter suppression laws."

In its 83-pages of decisions [PDF], the three-judge panel on the 4th Circuit finds that North Carolina acted with a racially discriminatory intent when enacting the law which included Photo ID voting restrictions, the reduction of early voting days, cancellation of the state's successful same-day registration option, the counting of provisional ballots cast out-of-precinct, and pre-registration of young voters who would be 18 years old by Election Day.

Those provisions, the 4th Circuit holds, "target African-Americans with almost surgical precision."

This is a huge and long-fought victory for voting rights, and it comes on the heels of similar wins within the past week as the 5th Circuit Court of Appeals found that the state of Texas' similarly draconian Photo ID restriction had a racially discriminatory effect, and as a federal court in Wisconsin ordered that state to allow voting provisions for those who do not own the few, narrow types of Photo ID now required to vote at the polling place under the new voting restriction adopted there.

All three laws --- in NC, TX, WI --- were enacted by Republican legislatures and put in place after the U.S. Supreme Court gutted a key provision of the federal Voting Rights Act in 2013...

I'm busy prepping for today's BradCast, so I am going to try and keep this brief and lean heavily, for the moment, on the early analysis from UC Irvine Law Professor Rick Hasen at the Election Law Blog.

Hasen describes the NC law as "the largest collection of voting rollbacks contained in a single law that I could find since the 1965 passage of the Voting Rights Act" and notes that the key part of the 4th Circuit's holding "is that North Carolina acted with racially discriminatory intent."

Despite that finding, however, he explains, "the 4th Circuit refused to use its discretion to put North Carolina back under federal supervision for up to 10 years for its voting." The plaintiffs challenging the law, including the U.S. Dept. of Justice, had asked that North Carolina be required to face pre-clearance for all new election laws once again, as per Section 3 of the Voting Rights Act. The state had previously been required to obtain such pre-approval for new election laws from the federal government, until SCOTUS gutted the section of the Voting Rights Act that had determined which jurisdictions, with long histories of racial discrimination, should fall under that federal scrutiny.

"Such remedies '[are] rarely used' and are not necessary here in light of our injunction," the court determined today. "Nonetheless," Hasen notes, "the finding of intentional discrimination could be the basis for a future argument for section 3 [placing the state of NC back under the requirement for federal pre-clearance for any new election rules or laws] should North Carolina pass other discriminatory voting laws."

According to the 4th Circuit majority, the lower court was simply wrong in rejecting plaintiffs challenge by upholding the law as written: "In holding that the legislature did not enact the challenged provisions with discriminatory intent, the court seems to have missed the forest in carefully surveying the many trees. This failure of perspective led the court to ignore critical facts bearing on legislative intent, including the inextricable link between race and politics in North Carolina."

"In North Carolina, restriction of voting mechanisms and procedures that most heavily affect African Americans will predictably redound to the benefit of one political party and to the disadvantage of the other. As the evidence in the record makes clear, that is what happened here," the appellate court held, adding that the trial court's finding were "clearly erroneous."

Hasen writes:

The 4th Circuit rejected the argument that NC's cutbacks cannot be evidence of discriminatory intent because the rules for voting were still more generous than in other states. "The district court discounted the claim that these provisions burden African Americans, citing the fact that similar election laws exist or have survived challenges in other states. But the sheer number of restrictive provisions in SL 2013-381 distinguishes this case from others. Moreover, removing voting tools that have been disproportionately used by African Americans meaningfully differs from not initially implementing such tools."

Remanding the case back to the lower court for readjudication is "not necessary because the trial court created and described an extensive record. It just weighed the facts in clearly erroneous way."

Moreover, the 4th Circuit held, racial discrimination simply cannot be justified by the assertion of the need to prevent fraud, as NC (and the other Republican states arguing in favor of these types of laws) argued:

"Thus, we do not ask whether the State has an interest in preventing voter fraud - it does - or whether a photo ID requirement constitutes one way to serve that interest - it may - but whether the legislature would have enacted SL 2013-381's photo ID requirement if it had no disproportionate impact on African American voters. The record evidence establishes that it would not have." In any case, the Court makes the point I have made in The Voting Wars and many others have made. If you want to stop fraud, you don't use ID, which targets virtually non-existent voter impersonation fraud. You go after absentee balloting, where fraud actually does occur. But that's not what this law did. The law also excluded the types of ids likely held by African-Americans for no discernible anti-fraud purpose.

Hasen reports that "The court marched through the other provisions of the law and the state's justifications, calling them 'a solution in search of a problem.'"

"The record thus makes obvious that the 'problem' the majority in the General Assembly sought to remedy was emerging support for the minority party," the court held.

This is a very good day for voting rights in America. It has been very good week or two, in fact, for voters, even though these rulings have been somewhat overshadowed by the GOP and Democratic political conventions.

In 2008, the battleground state of North Carolina supported Barack Obama's election by just a few thousand votes. In 2012, it swung back to Republican Mitt Romney by not many more votes. Thus, NC is a key swing-state. But the rulings here are important on a much larger scale, as the effect and intent of these type of laws --- passed after the 2013 gutting of the Voting Rights Act and still being enacted all over the nation in states controlled by Republicans --- is becoming clearer and clearer at the federal court level each day now and, along with it, more and more difficult for the U.S. Supreme Court to ignore or undercut.

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UPDATE 12:11pm PT: Writing at Slate, Mark Joseph Stern describes some of the examples the court found of blatantly discriminatory intent by the NC legislature, and adds in closing:

Friday’s decision was issued by a three-judge panel; if North Carolina requests a rehearing by the full court, it will almost certainly lose again on the left-leaning Fourth Circuit. Moreover, there is simply no chance that the state can gather five votes on our current Supreme Court to reverse Friday’s ruling. It seems quite likely, then, that North Carolina’s discriminatory voting law is, like Texas’, dead in the water. That means one of the most brazen attempts in modern times to limit black voters’ access to the polls has now officially failed.
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