For the second time in four years, a version of North Carolina’s election law was in federal court, this time based on allegations that if enacted, black and Latino voters would be disenfranchised.
Attorneys for the North Carolina NAACP and several local chapters, including Winston-Salem, were in a Winston-Salem courtroom Tuesday asking U.S. District Judge Loretta C. Biggs to grant a preliminary injunction that would block the law from going into effect for the March 3, 2020, primary elections.
They argued that black and Latino voters disproportionately lack the photo IDs required under the law and face more obstacles to obtaining those photo IDs. The law would result in black and Latino voters being denied the right to vote at the polls, they argued. They further argued that state Republicans intentionally put the law into place to racially discriminate against black and Latino voters. The North Carolina NAACP filed a federal lawsuit against the law in December 2018.
Attorneys representing North Carolina and the State Board of Elections said the law is not discriminatory and that it provides many provisions that would allow everyone the opportunity to vote. They mentioned several times that the law allows for what is known as a reasonable impediment for people who say they could not get a photo ID. That reasonable impediment could be lack of transportation, they said. People also can file for a provisional ballot if they have a photo ID but did not bring it to a polling place. Their vote would be counted as long as they brought a photo ID back to elections officials within 10 days after the election, attorneys for the state said.
Republicans have argued for a photo ID to prevent voter fraud and increase voter confidence. Voter fraud (the kind where a person impersonates someone else to cast a ballot) is rare. Lorraine Minnitte, an expert who testified in a previous trial on the state’s elections law, said that between 2000 and 2014, the State Board of Elections referred only two cases of in-person voter fraud for prosecution.
Biggs didn’t make a decision on Tuesday but told attorneys on both sides that she plans to make a decision quickly. Paul Cox, an attorney for the State Board of Elections, said elections director Karen Brinson Bell has indicated that she would need to know by Dec. 31 whether the photo ID law would be blocked.
At Tuesday’s hearing, attorneys for the plaintiff argued that context mattered. Caitlin Swain-McSurely, one of the attorneys, said North Carolina has a long history of racially discriminating against black people in voting. And that racial discrimination didn’t stop, she said, after the Voting Rights Act of 1965 was passed.
In the last decade, state Republicans have tried to pass a photo ID law, she said. In 2011, they failed. But in 2013, state Republicans pushed forward an elections law that not only required photo ID but also eliminated same-day voter registration, shortened the time for early voting and got rid of provisional voting, all practices that disproportionate numbers of black voters used, she said.
This came at a time when black people were registering to vote and casting ballots at historically high rates, Swain-McSurely said. And the 2013 elections law was pushed a month after the U.S. Supreme Court severely weakened Section 5 of the Voting Rights Act, eliminating the need for elections laws to be pre-cleared by the federal government and making it harder for people to prove that elections laws were racially discriminatory, she said.
In 2016, the 4th Circuit of the U.S. Court of Appeals struck down the state’s elections law, finding that state Republicans had racially-discriminatory intent when they pushed through the legislation.
Swain-McSurely and John Ulin, another one of the plaintiffs’ attorneys, argued Tuesday that state Republicans decided to circumvent the ruling by putting a constitutional amendment on the ballot, which North Carolina residents passed in November 2018, that would require voters to present a photo ID at the polls. Then that December, state Republicans quickly pushed through legislation that outlined how the photo ID requirement would work, Ulin and Swain-McSurely said. The new law provided a limited number of acceptable photo IDs. While driver’s licenses and other forms of ID could be accepted, other forms of ID, including IDs from federal assistance programs such as Medicaid, would be excluded.
Biggs asked why. Olga E. Vysotskaya Brito, one of the state’s attorneys, said no one presented an amendment that would allow federal assistance IDs that had photos on them. Biggs didn’t buy that explanation.
“I feel like excuses are being made and I don’t understand,” she said.
At another point in the hearing, Biggs appeared to bristle at the suggestion that people having a hard time getting photo IDs had minor inconveniences. She said not everyone has the ability to go multiple places in a day to get a photo ID.
“It becomes a convenience if you have a car,” she said. “It becomes a convenience if you can get off from work.”
Brito said she doesn’t dispute the history of racial discrimination and disparity in voting in North Carolina. Cox also didn’t dispute that there are currently racial disparities in who has photo IDs and who doesn’t.
But both said that the new photo IDs mitigates against any alleged harm by allowing people to claim reasonable impediments. Cox argued that it requires a unanimous vote to reject someone’s claim of reasonable impediment. Also, anyone can ask for a provisional ballot, he said.
No one would be kept from casting a ballot just because of the photo ID law, he said.