It takes more than good intentions to transform the South. It takes money.
What the hell is a Scalawag?
A federal appeals court scored a substantive blow last week against the conservative strategy to keep Black, brown and socioeconomically vulnerable voters from casting ballots. On Friday, three justices from the Fourth Circuit ruled that North Carolina's state legislature intended to discriminate against Blacks when its Republican majority passed a sweeping rollback of voting provisions and instigated a photo identification requirement in 2013. In response, the court voided all of the challenged provisions — restoring a week of early voting, same-day registration, provisional ballots and pre-registration as well as getting rid of the photo ID requirement. While the individual provisions might not seem to be drastic taken by themselves, the justices noted that the combined effect of the law constituted the most comprehensive rollback of the franchise since the Voting Rights Act passed in 1965.
North Carolina lawmakers have defended the law as a necessary precaution to combat election fraud, but the appeals court firmly dismissed the state's claims in its opinion, noting that the election restrictions "constitute solutions in search of a problem." Attorneys for the North Carolina state legislature have struggled to find any instances of in-person voter fraud, which is what North Carolina's law is designed to prevent.
Since its passage, the so-called election "omnibus bill" in North Carolina has represented one of the most foremost battle lines between (mostly) White Republican majorities seeking to safeguard their political power in state assemblies across the country — and Black voters, supported by progressive advocacy groups and law firms. Similar photo identification requirements have been passed in 34 states, and other Republican lawmakers have looked to North Carolina's legislation as a model initiative in reforming their own ballot access. Hanging in the balance could be the White House this November as a set of swing states, including North Carolina, could be decided by razor-thin margins. In 2008, North Carolina voted to elect Barack Obama with 49.9 percent supporting him over Romney's 49.5 percent.
But aside from the partisan power games, these electoral schemes hurt Black voters on a deeply personal level. Rosanell Eaton, one of the plaintiffs in the North Carolina lawsuit, first won her right to vote as an African American woman back in 1939, when she had to recite from memory the entire preamble to the United States Constitution. Now she faced being disenfranchised all over again because she didn't possess the proper form of photo identification. After fighting for the right to participate in American democracy on equal terms — a fight that was sustained and often sparked violent retaliation from Whites — it is hard for Black communities not to feel insulted by these contemporary attempts to minimize their political power.
What is perhaps most significant about the court's decision in the North Carolina case, however, extends far beyond the direct impact that the extended voter protections might have in this November's election. For North Carolina's law was one of the first — and the most aggressive — to be passed in the aftermath of the Supreme Court's decision to get rid of the Voting Rights Act's pre-clearance coverage in its disastrous Shelby County decision. Arguably one of the most succesful pieces of civil rights legislation yet, the Voting Rights Act of 1965 explicitly banned state legislatures and local municipalities from passing election rules that would disproportionately keep voters from casting ballots because of their race. As originally written, the act had two key mechanisms for preventing discrimination at the polls: first, under Section II, plaintiffs could challenge laws after they were passed on the basis that they were racially discriminatory; and then under Sections III and V, the act created a pre-clearance scheme for any states and counties that had historically attempted to keep Blacks from voting.
Under the old pre-clearance scheme, states and local jurisdictions looking to make changes to their election procedures had to first go to the U.S. Department of Justice for review. The Justice Department would ensure that the new voting scheme wouldn't disproportionately impact Black and brown voters, either by diluting the power of their votes or by denying them the ability to cast ballots altogether. In those instances, the federal government was only looking at the question of disparate impact — it didn't matter why the state wanted to cut down on its early voting or a county wanted to move its polling places, only that those changes might obstruct communities of color from exercising their voting rights. And so many proposed electoral changes never made it through the pre-clearance process; the federal appeals court noted that North Carolina officials again and again failed to get electoral changes through the Justice Department's review.
But that all changed when five justices on the Supreme Court decided that the pre-clearance coverage formula was outdated and no longer valid in June 2013. Now states can make whatever changes to voting regulations they can pass by law, and vulnerable communities are left fighting the laws in court after they have gone into effect — an expensive and daunting process for voters who often do not have access to the resources or legal credentials to wage such campaigns.
In North Carolina's case, plaintiffs challenged the voting omnibus law, arguing that it violated Section II of the Voting Rights Act. Because many voting changes were halted in the pre-clearance phase prior to 2013, courts have not had to rely much upon Section II to defend the franchise. That worried plaintiffs, seeing that the court could interpret the law narrowly to allow state legislatures to pursue all sorts of voting restrictions if they could prove that they had not intended to discriminate.
Thankfully, the federal appeals court issued a convincing rejection of North Carolina's voter ID law. Rather than argue that the voting restrictions would disproportionately impact Black and brown voters — although the evidence seems to clearly demonstrate that it would — the justices advanced a stronger claim, finding that the state legislature had acted with a discriminatory intent when it designed and passed its voting changes and thus had violated Section II of the Voting Rights Act.
The Fourth Circuit didn't dispute the facts at issue in the case. The district court had pulled together a thorough evidentiary record, the justices allowed. Where it went wrong was in how the lower court interpreted what those facts meant. The district court considered each provision separately and out of the broader context of North Carolina's racialized voting patterns, which ultimately led the court to take the state legislature's rationalizations of the law at face value.
"In a vote denial case such as the one here, where the plaintiffs allege that the legislature imposed barriers to minority voting, this holistic approach is particularly important, for '[d]iscrimination today is more subtle than the visible methods used in 1965,'" the court ruled.
Assessing whether or not a state legislature intended to discriminate against Black voters is no easy task. After all, a state legislature is a corporate entity made up of all kinds of representatives with different intentions and motivations. A court seeking to understand the intention behind a specific piece of legislation can't take one or two legislators' statements as obvious indicators of what the bill's writers and sponsors intended or what the broader majority that voted for it meant to accomplish by voting yea. In turn, the justices often have to approach the state's attempts to explain its own actions after-the-fact in legal disputes with caution, given the strong incentive to rationalize and neutralize any discriminatory intent.
Instead, courts attempting to determine whether or not officials intended to discriminate against Black voters must look at the broader context of the law's passage and its impact. And when the Fourth Circuit Court did take a contextual approach in North Carolina's case, the justices came away convinced that the Republican majority has intentionally targeted Black voters with the new voting restrictions. It is important to take a moment to look at the court's decision and its interpretation of the fact pattern here. The devil is in the details.
North Carolina, the federal appeals court argued, is particularly susceptible to unconstitutional voter suppression tactics because of its racist history of denying the franchise to Black communities and because the state remains racially polarized in its voting habits. The law took hold in a state with a damaged record on protecting and providing voting rights for African Americans; forty of North Carolina's counties remained subject to the VRA's pre-clearance requirement in Section V at the time of the Shelby decision.
"Race and party are inexorably linked in North Carolina," the court noted. "This fact constitutes a critical — perhaps the most critical — piece of historical evidence here. The district court failed to recognize this linkage, leading it to accept "politics as usual" as a justification for many of the changes… But that cannot be accepted where politics as usual translates into race-based discrimination."
Almost to a rule, Black voters in North Carolina support Democrats, which didn't prove much of a problem for GOP power in the state until Black turnout rose precipitously in the early 2000s and turned North Carolina into a swing state in national campaigns. In 2000, African American turnout hovered at around 42 percent statewide; by 2008, it had soared to 72 percent, in keeping with white turnout.
A substantial reason for the change? Democrats passed a series of measures in the mid-2000s that sought to make voting easier for communities that had a difficult time navigating the registration process or getting to the polls on Election Day. Some of their reforms? Adding same-day registration. Allowing people who voted in the wrong precinct to cast provisional ballots. Creating a pre-registration system Extending the early voting period to fourteen days, including on the Sunday before Election Day when Black churches often provided bus services to transport their congregation members to the polls.
When North Carolina swung Democratic for Barack Obama in 2008 for the first time in 32 years, the Republicans attempted to consolidate their own hold over the state in the face of growing Black turnout. With a newly elected majority after the 2010 midterms and a Republican governor after 2012, the state's GOP leadership got their opportunity to take drastic action in June 2013 after the Shelby County decision removed the pre-clearance headache.
June 25, 2013 proved a critical turning point in the voting rights saga: before Shelby County, state lawmakers had introduced a limited, 16-page bill that attempted to institute a photo identification requirement. After Shelby County, a GOP state senator allowed that the General Assembly could now progress with the "full bill." Lawmakers requested data on how North Carolinians voted by race. And then, in late July, Republicans introduced a revised version of the photo ID bill, but now it numbered 57 pages. Included in its provisions that rolled back early voting, same-day registration, pre-registration, and out-of-precinct voting — all of which were disproportionately used by Black voters. The photo identification requirement too had been revised. Left off the list of acceptable forms of ID were those that African Americans were most likely to possess. The only mode of voting that HB 589 left untouched was the absentee ballot, which Whites are more likely to use.
The GOP majority rammed the full bill through in three days, severely limiting the time for public comment or legislative amendment. On July 25, the House voted to approve the Senate's measure along strictly party lines. Republican Gov. Pat McCrory signed the bill into law on Aug. 12 over strident protests from Democratic lawmakers and progressive advocates alike.
"Neither this legislature — nor, as far as we can tell, any other legislature in the Country — has ever done so much, so fast, to restrict access to the franchise," the court wrote.
Taken together, HB 589's timing, the furtive, closed-door manner in which the GOP legislators pushed the law through, and the precise way in which its restrictions track Black voters' past habits all indicate that lawmakers were up to no good, the federal appeals court found. What Republicans have sought to explain as race-neutral electoral changes or as "political gamesmanship" as usual has in actuality proved to be an explicit scheme to keep Black voters — who the district court found are "disproportionately likely to move, be poor, less educated, have less access to transportation, and experience poor health" — from the polls.
And it gets worse.
"Although the new provisions target African Americans with almost surgical precision, they constitute inapt remedies for the problems assertedly justifying them and, in fact, impose cures for problems that did not exist," the justices wrote.
When asked if North Carolina had a legitimate state interest in rolling back these specific voting provisions, the state couldn't give anything close to a convincing answer. While states should be concerned with protecting an election's integrity and combating voter fraud, the court allowed, North Carolina's GOP majority couldn't show that voting fraud was a real problem in the state's elections. In fact, the state couldn't provide one example of the sort of in-person voter fraud that HB 589 was allegedly designed to prevent. The most likely source of fraud involves absentee voting — but the GOP conveniently decided not to require photo ID for absentee ballots.
Instead, the court noted that "the State offered only meager justifications" for these voting restrictions. Undergirding the state's case was the claim that the Republicans just wanted to restore the election law back to what it was before all of the Democratic reforms of the mid-2000s — back to when Black voter turnout was only 42 percent. As if shoring up the power of the White electorate was a morally legitimate and legally defensible argument for changing voting laws.
Throughout this case, Republicans have tried to position the electoral changes that brought more Black and brown voters to the ballot box as a question of elective preferences. Which is a disgraceful bit of rhetorical positioning that the federal appeals court saw through.
"Registration and voting tools may be a simple "preference" for many white North Carolinians, but for many African Americans, they are a necessity," the justices rejoined.
Perhaps the scariest part of the saga around North Carolina's voting restrictions is that the district court acknowledged all the same facts to be true about what the bill did and how it was passed — and yet came to the exact opposite conclusion about whether these voting changes discriminated against Blacks and required court relief under the Voting Rights Act. How the same facts can be interpreted to be racially neutral and unproblematic seems a bit baffling.
And, in turn, perhaps the most uplifting part of the appeals court's decision is that the plaintiffs didn't have to prove that the General Assembly acted out of antiblack malice when they passed the law. (Although I would hazard that there was a fair amount of racism motivating specific legislators.) Instead, it was enough to prove that the state legislature had targeted Black voters specifically for whatever motivation, that this law would not have been passed in its current form if it hadn't been for the antiblack strategy that sought to consolidate GOP control over the state.
"Using race as a proxy for party may be an effective way to win an election," the justices wrote. "But intentionally targeting a particular race's access to the franchise because its members vote for a particular party, in a predictable manner, constitutes discriminatory purpose."
All in all, last week's decision was a huge step forward for combating unfair voting restrictions in the post-Shelby age. The only thing that could have made the decision better would have been if the appeals court had returned North Carolina to the VRA's pre-clearance coverage under Section V. After all, if this entire case, from the bill's inception to Gov. McCrory's outraged statement after the Fourth Circuit decision came down, is any indication, our elected officials can't be trusted to protect the franchise for all North Carolinians.