In closing arguments Monday, North Carolina’s photo ID requirement was described by attorneys for the North Carolina NAACP as a racially discriminatory law that places unconstitutional burdens on blacks and Hispanics.
Attorneys representing Gov. Pat McCrory and state elections officials called the change in the law a mere inconvenience, saying it would affect a small group of people.
Penda Hair, an attorney for the N.C. NAACP, said evidence presented during the trial clearly shows that the photo ID requirement would make it harder for blacks and Hispanics to cast ballots in this year’s election. It’s undisputed, she said, that blacks disproportionately lack the kinds of photo IDs that they would need to show when they come to the polls.
Moreover, she said, blacks and Hispanics have fewer resources, such as transportation, to overcome obstacles in getting photo ID. Hair said the N.C. Department of Motor Vehicles is a dysfunctional organization that places hurdles in front of people trying to get photo IDs, even ones that are supposed to be free. She noted that DMV had issued about 2,100 free IDs in the past two years.
But Thomas Farr, one of the attorneys for the state, told U.S. District Judge Thomas D. Schroeder that he heard not one shred of evidence that the photo ID requirement would keep blacks and Hispanics from voting, primarily because the law hasn’t even been implemented yet. The first time it would be enforced would be during the March primaries.
“At the end of the day, this is a policy dispute,” he said. “If the federal court can throw out this law, without evidence, then federalism is a dead letter.”
It’s not clear when Schroeder will issue a decision. Attorneys on both sides can submit additional evidence until Feb. 11 and they have to file proposed findings of fact by Feb. 24.
North Carolina is among at least 33 states in the country that have some kind of photo ID requirement, according to the National Conference of State Legislatures. In 2013, state Republican legislators passed what was considered then a strict photo ID requirement as part of a sweeping election law.
That eventually became the Voter Information Verification Act not only included a strict photo ID requirement but also made a number of other changes. That included reducing the number of days for early voting from 17 to 10 and eliminating same-day voter registration.
The changes came soon after the U.S. Supreme Court invalidated Section 5 of the Voting Rights Act of 1965. Section 5 required certain states, mostly in the South, to get federal approval, known as pre-clearance, before making any changes in elections law.
Forty counties in North Carolina were under the Section 5 requirement. States had to prove that the election law changes being passed weren’t discriminatory against racial minorities.
Plaintiffs have argued that state Republican legislators had racially discriminatory intent because they waited until after the U.S. Supreme Court ruling and they knew that the law would have a disproportionate impact on blacks and Hispanics. State Republican legislators, at the time, said they were passing the law to restore confidence in the voting system and to prevent potential voter fraud.
No evidence of widespread fraud
There is little evidence of widespread in-person voter fraud in North Carolina or nationally. Last year, in another federal trial, Kim Strach, the state’s election director, testified that 31 cases of voter fraud had been referred to county prosecutors around the state. Two of them involved in-person voter fraud. Kim Strach is married to Phil Strach, one of the attorneys for the state. Farr, however, argued that there’s no way to know how much in-person voter fraud there is because it is difficult to measure.
One of the key issues in the trial centered on an amendment that state Republican legislators passed in June 2015. The amendment came just weeks before the photo ID and the rest of North Carolina’s election law was going on trial in U.S. District Court. A major change involved allowing voters to sign what is known as a “reasonable impediment” declaration form.
On that form, voters can check one of several boxes that provides a reason why they were unable to get a photo ID, including lack of transportation, family obligations or work schedule. After filling the form out and signing it, voters can cast a provisional ballot that would be counted later, once their reasons were verified.
Because the amendment came just weeks before the trial, Schroeder delayed legal proceedings on the photo ID requirement until this year. State attorneys have argued that the “reasonable impediment” option makes moot arguments that the law is discriminatory.
Hair, in her closing arguments, said the “reasonable impediment” declaration is a confusing process and an intimidating one. Blacks and Hispanics have lower literacy rates and may be unable to understand the form. State elections officials have done little to clear up the confusion, she argued.
Strach acknowledged last week that she has not sent out a memorandum about how the “reasonable impediment” should be interpreted.
But she also implied that it would be virtually impossible for someone to challenge a voter on their reasons for not being able to obtain a photo ID because the law is supposed to be interpreted broadly in favor of the voter.
Hair said that’s not good enough. The law is vague, she said, and blacks have a historical reason for fearing intimidation while trying to cast a ballot.
Farr said that plaintiffs were engaging in mere speculation.
“That’s all they have is possibilities,” he said.
Standing outside the federal courthouse, the Rev. William Barber, president of the state NAACP, said the photo ID law is no different than other past efforts to suppress the black vote.
“We’ve been down this road before,” he said. “It was called Jim Crow and we do not need James Crow Esquire leading us down the same path again.”
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