The past and the present merged into one during a three-week federal trial on North Carolina’s election law that ended just a week before the 50th anniversary of the Voting Rights Act of 1965.
On July 13, the first day of the trial, the Rev. William Barber, president of the state NAACP, told a crowd of at least 3,500 people gathered in Corpening Plaza that “this is our Selma,” referring to the 1965 civil rights battles in Selma, Ala.
For many civil rights activists like Barber, state Republican legislators were seeking to roll back the gains of that struggle by pushing through House Bill 589, which became law in 2013 and either curtailed or eliminated voting practices that blacks have disproportionately used.
Those practices included 17 days of early voting, same-day voter registration and out-of-precinct provisional voting.
North Carolina’s election law, known as the Voter Information Verification Act, was seen by opponents as a direct attack on the Voting Rights Act, which was signed on Aug. 6, 1965, by President Lyndon B. Johnson.
The N.C. NAACP, the League of Women Voters, the U.S. Department of Justice and other groups filed a lawsuit in 2013, alleging the law disproportionately made it harder for blacks, Hispanics, poor people and young people to register and vote.
They also alleged that state Republican legislators had intentionally passed the law to suppress minority votes.
The lawsuit was filed against the state and Gov. Pat McCrory, who signed the law on Aug. 12, 2013.
The trial, which took place in a wood-paneled and often cold courtroom in U.S. District Court in Winston-Salem, was closely watched throughout the nation as a test case that could ultimately determine what the Voting Rights Act means in 2015.
The lawsuit is one of several legal challenges around the country. North Carolina and Texas both passed sweeping election changes soon after the U.S. Supreme Court invalidated Section 5 of the Voting Rights Act in the case Shelby V. Holder. Section 5 required nine states and townships and communities in six other states to seek federal approval for election changes in a process called preclearance.
On Wednesday, the 5th Circuit of the U.S. Court of Appeals ruled that Texas’ Voter ID law violated the Voting Rights Act.
“This is one of the first post-Shelby County election changes filed by the (U.S.) Department of Justice,” Richard Hasen, professor of law and political science at the University of California at the Irvine School of Law, said about North Carolina’s law. “The government is looking for ways to rein in racially discriminatory effects of voter laws in places that used to be covered by preclearance provisions of the Voting Rights Act.”
That means that many people are going to be looking at what U.S. District Judge Thomas Schroeder, who presided over the three-week trial, ultimately decides. That decision won’t be coming anytime soon. In fact, it could be several months as Schroeder reads over thousands of documents and exhibits entered into evidence during the trial.
The law post-Shelby
On June 25, 2013, the U.S. Supreme Court delivered what many voting-rights activists consider a sucker-punch to the Voting Rights Act of 1965.
And once the decision came down, North Carolina’s Republican legislators reacted quickly.
Before the Supreme Court ruling, the state House had passed a shortened version of House Bill 589 that only dealt with a photo ID requirement, according to testimony at the trial.
But a month after the ruling, state Republican legislators unveiled a 57-page version of House Bill 589 that not only tightened the photo ID requirement but also curtailed or eliminated voting practices such as same-day voter registration.
According to testimony from experts and other witnesses called by the plaintiffs, those voting provisions were used disproportionately by black voters.
For example, in the 2012 presidential election, 70 percent of blacks used early voting.
North Carolina wasn’t the only state to pass election changes post-Shelby. Texas Republicans quickly moved ahead with a strict Voter ID law, which was immediately challenged in court.
Jennifer Clark, counsel for the Brennan Center’s Democracy Program, said the Shelby decision only hastened something that was already happening throughout the country.
Since 2010, Clark said, 21 states have introduced restrictive voting requirements. Some states have passed laws that dealt exclusively with Voter ID; others have cut back on early voting or eliminated same-day voter registration, Clark said.
North Carolina went the furthest in curtailing or eliminating a large number of voting practices, Clark said.
Experts for the plaintiffs testified that at least in North Carolina, timing on several fronts contributed to House Bill 589 emerging as legislation in 2013. Starting in the early 2000s, the Democratic-controlled General Assembly passed a series of laws that eased access to voting, including a longer early voting period and same-day voter registration.
State Rep. Henry “Mickey” Michaux, D-Durham, testified that he and other black legislators pushed those changes to address North Carolina’s past discrimination in voting. Michaux said many blacks were distrustful of the election system because of years when legislators passed poll taxes and literacy tests as ways to keep blacks from voting.
According to testimony, the new voting practices worked to increase voter turnout overall and particularly among blacks. In 2008, when then-U.S. Sen. Barack Obama was elected the first black president, blacks turned out to vote in historic numbers. Blacks also vote largely for Democrats, according to testimony.
In 2011, state Republicans gained a majority in the General Assembly. Then Republican Pat McCrory won the governor’s race in 2012.
Clark said the U.S. Supreme Court decision made it easier for states such as North Carolina to pass election laws that might not have withstood legal muster under Section 5 of the Voting Rights Act.
Under Section 5, North Carolina would have had to prove that any election law change would not make it harder for minorities to vote than the status quo, Clark said. But after the Supreme Court ruling, she said, the legal burden shifted to challengers under Section 2, she said.
Clark said that under Section 2, challengers have to prove there was discriminatory intent to make it harder for minorities to vote and that the law would have a disparate impact on minorities.
“We lost a lot of protections of Section 5 because it shifts the burden onto challengers to get behind the lens of the legislators and to mount a legal challenge,” she said.
The three-week trial in Winston-Salem was marked by absences.
Not one state Republican legislator came to Winston-Salem and testified. McCrory did not show up.
State attorneys said the legislators can claim legislative privilege, meaning they don’t have to show up to testify.
And in closing arguments, Thomas Farr, one of the state attorneys, argued that legislators had no obligation to justify House Bill 589. The case, he said, was not about racial discrimination; it was about North Carolina’s authority to enact reasonable changes to election laws.
But attorneys also pointed to public statements from legislators, including U.S. Sen. Thom Tillis, who was state House speaker in 2013, in which legislators said they were making the changes to restore public confidence in the election system and to guard against potential voter fraud. They also pointed to high voter turnout among blacks during the 2014 election, when some of the law’s provisions were in place. Plaintiffs argued that turnout was affected by the U.S. Senate race between Kay Hagan and Tillis and get-out-the-vote efforts by groups such as the state NAACP. The 2014 U.S. Senate race was more expensive than the 2010 U.S. Senate race, plaintiffs argued.
Clark said many Republicans in other states have often cited voter fraud to justify controversial election law changes, such as voter ID requirements.
During the trial, Kim Strach, executive director of the State Board of Elections, testified for defendants that her office had received numerous calls from North Carolina residents who were concerned about potential voter fraud.
But under cross-examination, Strach said there was no significant fraud in same-day voter registration.
Lorraine Minnite, a Rutgers University professor, testified that North Carolina had two cases of voter fraud that were referred to county prosecutors between 2000 and 2014. Strach testified that she had recently referred 31 cases of alleged voter fraud, two of which concerned in-person voter fraud, to county prosecutors.
Farr and other state attorneys argued in court papers that North Carolina’s law would have gotten federal approval under Section 5, but one of the other state attorneys, Phil Strach, in a cross-examination of one of the expert witnesses, also suggested that it would have been reasonable for state Republican legislators to wait until after the Supreme Court ruling if there was a chance that the legal burden would shift from the state to challengers.
Hasen said the justifications for the law don’t hold up.
“These laws don’t seem to be aimed at preventing voter fraud,” he said.
Protecting the future
For three weeks, Rosa Nell Eaton sat in U.S. District Court in Winston-Salem, scribbling away in a small notebook and asking people who sat in front of her to scoot over so that she could get a better look at the witnesses who took the stand.
Eaton is the lead plaintiff in the legal challenge to House Bill 589.
Eaton, born in 1921 in Franklin County, has spent all of her adult life helping others to register and vote, serving as a precinct judge in Franklin County from 1973 to 2013. Many blacks, she said in court papers, were afraid to vote “because they feared reprisals against them by employers and others in the community.”
“Because many were sharecroppers, they could be forced to move from the land by the property owner, leaving these individuals without a job or a place to live,” she said in court documents. “But I persevered and registered African-Americans throughout the United States, including North Carolina.”
House Bill 589, in her mind, rolls back all the rights she and others had fought for so many years ago.
“I believe it is wrong to pass laws that stop Americans from voting and participating in our democracy,” she said in court documents.
Plaintiffs called more than 40 witnesses, some of them college students and others working-class people, who testified about how hard it was to vote in the 2014 elections.
The Rev. Moses Colbert, 61, testified that he and his wife had registered months earlier in 2014 at the DMV, but his registration never went through. When he voted early in Cleveland County, his voter registration didn’t come up. Election officials told him to vote in Gaston County. But he couldn’t vote there either because he had a Cleveland County address. He went back to Cleveland County to vote but was told he would have to cast a provisional ballot. The provisional ballot, however, did not count because he was not registered to vote. And under North Carolina’s new law, he did not have the option of registering to vote and casting a ballot at the same time, according to testimony.
Other witnesses for the plaintiffs told similar stories.
Clark said some states are going in the opposite direction of North Carolina. She cited Oregon as an example. Legislators there passed a law that automatically registered qualified citizens to vote. Other states have implemented online registration, she said.
But what’s really needed, Clark said, is for Congress to act. There is pending federal legislation that could restore Section 5 protections but it hasn’t gone anywhere yet, she said.
“It (the federal trial in North Carolina) puts into high relief how important it is that Congress takes action to restore the protections of the Voting Rights Act,” she said. “Until they were gutted, I think the evidence that came to light about the difficulties that many voters have faced in trying to vote …makes it clear that things were getting better because the law was working.”
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