Can North Carolina Enforce Its Voter ID Law? | Eastern North Carolina Now

    It is this citizen's opinion that North Carolina should do one of seven things: (1) Call the state legislature into an emergency session the week before early voting begins and pass another Voter ID law (making minor changes but still keeping the spirit of the law intact - requiring reliable identification to vote); (2) Ignore the opinion of the 4th Circuit, asserting that the court lacked jurisdiction to hear the appeal (just as the federal district court lacked jurisdiction to hear it), citing Article III, Section 2, paragraph 2 of the US Constitution as legal authority; (3) Ignore the OPINION of the 4th Circuit citing just that... it is only an opinion" and the state, in its equal ability to interpret the Constitution, does not agree; (4) Claim that the opinion directly calls each of the state legislators a "racist," defames them as individuals and as a political and must be rejected as libelous and therefore illegal; (5) Claim that the opinion offends traditional notions of States Rights and under the Tenth Amendment, the state has the right and duty to defend its sphere of legitimate governing power, which includes common-sense voting laws; (6) Claim that the opinion is a clear violation of the Separation of Powers because the Court went out of its way to substitute its judicial opinion for the legislature's rightful opinion as lawmakers and therefore illegitimate and unenforceable; or (7) Governor Pat McCrory should issue an Executive Order to all Boards of Election instructing them that a reliable identification is REQUIRED of all persons who show up to vote (and whoever cannot produce one must then-and-there, sign an affidavit and submit to having his or her photo taken). In the Appendix, I have attached a sample Executive Order.

    BACKGROUND -

    While we are bustling about living our lives - going about our laborious days working (one-third of the time to render to Caesar what is Caesar's), raising our children, putting them through college, caring for loved ones, taking care of our property - we had hoped that the Constitution would stand, immovable, impenetrable, unshakable, and steadfast for the rights and the principles that over a million Americans sacrificed their lives for. That's what a constitution is - it is a fixed and permanent rulebook for the government as well as a documented grant of assurance that We the People will be able to live our lives without much government interference. Within only a few years after the Constitution was ratified and the new Union was formed, this was how the Supreme Court understood its significance:

    In America, every State in the Union has its constitution reduced to written exactitude and precision. The federal government as well. What is a Constitution? It is the form of government, delineated by the mighty hand of the people, in which certain first principles of fundamental laws are established. The Constitution is certain and fixed; it contains the permanent will of the people, and is the supreme law of the land; it is paramount to the power of the Legislature, and can be revoked or altered only by the authority that made it. The life-giving principle and the death-doing stroke must proceed from the same hand. What are Legislatures? Creatures of the Constitution; they owe their existence to the Constitution: they derive their powers from the Constitution: It is their commission; and, therefore, all their acts must be conformable to it, or else they will be void. The Constitution is the work or will of the People themselves, in their original, sovereign, and unlimited capacity. Law is the work or will of the Legislature in their derivative and subordinate capacity. The one is the work of the Creator, and the other of the Creature. The Constitution fixes limits to the exercise of legislative authority, and prescribes the orbit within which it must move. In short, gentlemen, the Constitution is the sun of the political system, around which all Legislative, Executive and Judicial bodies must revolve. Whatever may be the case in other countries, yet in this there can be no doubt, that every act of the Legislature, repugnant to the Constitution, as absolutely void..... [Vanhorne's Lessee v. Dorance (1795)]

    The Law of the Land is the Constitution of the United States. And this Constitution of ours has a fixed and permanent meaning. All a justice or a judge has to do is consult those original authorities. (But they rarely ever do so, if ever). The meaning is fixed in the Federalist Papers (which Thomas Jefferson called the "best commentary on the Constitution ever written") and in the debates of the state ratifying conventions. The meaning and intent of the Constitution as understood by each of the States when they ratified it is the PROPER and LEGAL MEANING of the Constitution. Except for the amendment process, which is the only legal way to alter or amend the meaning of the Constitution in order to reflect the changing demands of the people, there is no authority by the federal court system to re-interpret the Constitution from its original meaning. There is only one justice on the Supreme Court now who gets this (Justice Clarence Thomas). Maybe Justice Samuel Alito, another conservative, also understands this. We once thought that Chief Justice John Roberts was a conservative and would abide by this principle. All the others are progressive and believe the Constitution is a piece of wax, to be molded by the times, the circumstances, the exigencies of government, and the changing norms. They believe the Constitution is a "living, breathing document" which means it has no fixed meaning and hence can be altered and re-interpreted at the bench.

    Indeed, the Law of the Land is the Constitution of the United States... a document written simply enough for every American to understand for himself that it means. If it protects our essential rights and establishes a limited government, wouldn't you expect that document to be easily understandable by the People? Otherwise, what good is it? If you always needed a lawyer or some other brainiac to read it to you and explain it to you, how can you ever be sure he is being truthful? And perhaps one of the greatest provisions in the Constitution is the Tenth Amendment. It is the great anchor - or as I like to call it, the "Lead Weight" - that restrains government. Government loves to cite the Supremacy Clause to bolster its laws and policies, but it never cites the Tenth Amendment. Both are equally dynamic provisions of the US Constitution; both define the scope and force of the government. The Supremacy Clause pushes against the States while the Tenth pushes against the federal government. While the government can rightfully claim as its supreme authority, the States can equally claim as ITS supreme authority.

    So what DOES the Constitution say? The phrase "the right to vote" appears for the first time in Section 2 of the Fourteenth Amendment, which says that states shall lose congressional representation "when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime." The Fourteenth Amendment, ratified in July 1868, has been criticized by several historians and students of the Constitution as having been unconstitutionally passed by Congress and illegitimately ratified by the federal government. In other words, it's passage in Congress and adoption by the States did not meet constitutional requirements (as well as can be challenged under contract theories; coercion nullifies an agreement).

    The section talks about the penalty for withholding the ballot but nowhere in the Constitution does it provide that every citizen necessarily has the right to vote. It is nowhere in the Bill of Rights. The Fifteenth Amendment, on the other hand, which was passed two years later in 1870, does speak specifically of "the right to vote." The Fifteenth Amendment reads: "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude."

    This particular phrase, "the right to vote of citizens of the United States," appears again two more times, each connected with a protection from abridgement. The Nineteenth Amendment provides that the "right to vote of citizens of the United States" will not be abridged on account of gender (suffrage) and the Twenty-Sixth Amendment provides that the "right to vote of citizens of the United States" will not be abridged on account of age (18 years or older). With the amendments come a cause of action to be adjudicated and enforced by both courts and Congress. The fact that the Constitution had to ADD these amendments - to protect the "right" to vote from discrimination based on race, gender and age implies there is no explicit right to vote in the Constitution. Explicit rights, like those in the Bill of Rights, apply to all citizens regardless of any differences.

    Article I, Section 4 of the Constitution provides for the "Times, Places, and Manner of Holding Elections for Senators and Representatives." This provision allows for the popular election of senators and representatives. According to Section 4, the States have the power to prescribe such conditions (time, place, and manner), although Congress may, at any time, alter such regulations. In fact, Congress did so in 1945. By statute, it mandated a uniform date for presidential (3 U.S.C. § 1) and congressional (2 U.S.C. § 1 and 2 U.S.C. § 7) elections - the Tuesday following the first Monday in November. Article I says nothing about the right to vote. Article I says nothing about early voting, Sunday voting, or any other extension of the period to cast a vote.

    Article II, Section 1 provides for the election of Electors, which will be responsible for the selection of president. "Each state shall appoint, in such manner as the legislature thereof may direct, a number of electors equal to the whole number of senators and representatives to which the State may be entitled to in the Congress..... The Electors shall meet in their respective States [and vote for President and Vice President]." Article II says nothing about Congress having any power to regulate the process of choosing electors, except that it may determine the time of choosing the Electors and the Day on which they must render their votes. The Constitution, however, says nothing about the right of citizens to vote for President. QUESTION: Does this mean that the Fifteenth, Nineteenth, and Twenty-Sixth Amendments' protections of the right to vote apply only to the selection of senators and representatives? This is perhaps a question for another day and another article.

    Looking at just the US Constitution, then, there would appear to be no fundamental right to vote thus requiring the government to scrutinize the process so intently. On the other hand, there is an explicit right to vote provided in virtually every state constitution. The exercise of the right to vote therefore a state matter. That is to say, states cannot deny citizens the right to vote, but they can regulate the process to address issues they believe are important. Voting laws are the rightful exercise of state government power. And this probably makes sense since it was understood from our Founders that there could be reasonable restrictions on the right to vote. In earlier days, the right to vote was limited to those who had property, for example. If the government could come after you and seize, tax, or regulate your property, then it was believed there should be "skin in the game." There could be residency requirements and even reasonable literacy tests in order to make sure that a person had a modicum of understanding in order to vote. [The Supreme Court has continued to acknowledge that literacy tests in general are constitutional (under the States' police powers), but Congress can prohibit them, under the Voting Rights Act, if they are used to intentionally discriminate against minorities]. The Supreme Court holds that under the Constitution, only the States have the right to set voter qualifications. In the grand scheme of things, the right to vote would seem to be a "privilege" - an incident of citizenship. Essential rights (historically-held individual rights) are those that are held to be inherent in one's humanity. They are rights that do not come from government. That is why governments are prohibited from taking them away, and that is why the Declaration articulates that the primary role of government is to protect them for every individual. These are the liberty interests protected in the Bill of Rights. We see no restrictions like photo ID (upheld by the Supreme Court), literacy tests, residency requirements, etc on our rights of Speech, Press, our right to counsel, due process, etc. Privileges, on the other hand, are not inherent in our humanity but derive from society. Our society, in particular, is designed as a representative democracy which implies that individuals will select the representatives to government on their behalf. Unfortunately, it seems clear that the Constitution doesn't embrace the notion that individuals have a say in the selection of president. And from Article I, it seems clear that States have the inherent right and power to regulate elections for Congress. As such, it would seem then that they have the right to regulate voting and elections in a neutral and reasonable manner for the "benefit of an ordered society" and to meet state interests.

    With respect to Article I, the US Congress has not passed any law requiring an early voting period. It is up to each individual State. This is important in looking at our North Carolina Voter ID law and exactly WHAT citizens are entitled to when it comes to their right to vote and their exercise of that right. The States have historically enjoyed the power to regulate voting and regulate their elections as they see fit; it comes under their general Police Powers covered and protected by the Tenth Amendment. In fact, up until 1991, the election of president and members of Congress was essentially held on only one day - Election Day. My guess is that most state constitutions only guarantee one day of voting. North Carolina's state constitution only guarantees one day of voting.

    Many states have had some degree of early voting for a long time, and that "early voting" was typically allowing the casting of "absentee" votes in a county clerk's office shortly before election day. But in the 1990's, several states moved to adopt early voting in a significant way. Texas, which began to use early voting in selected elections and counties in the late 1980's, expanded its use in the 1990's. Oklahoma adopted early voting in 1991 and Tennessee, New Mexico, and Nevada in 1994. A number of states adopted early voting after the 2000 election and have continued the practice in subsequent elections. Among them are Arkansas, North Carolina, and West Virginia, which have high rates of early voting and low rates of absentee voting, and Florida, which has high rates of both. Texas and Tennessee have the highest rates of early voting. Along with Nevada, they reported over 40% in 2004. Arkansas, New Mexico, and North Carolina reported over 25 percent and Florida and Colorado almost 20%. A number of states, including Illinois and Maryland, enacted legislation to allow early voting in 2006.

    While States have noted the benefits of Early Voting (enlarging access to the ballot box and making it easier for certain folks to vote), some have noted the drawbacks - the greater opportunity for fraud. Since the 2000 presidential election recount in Florida, paranoia about the integrity of the U.S. election system has increased. A Pew Research Center survey found that 48% of Americans were confident that "the votes across the country were accurately counted" in the 2004 election. In subsequent elections, confidence would be further eroded. Indeed, after the 2012 election, only 31% of Americans nationwide had confidence in the process. 69% felt the process was corrupted and the outcomes not necessarily trustworthy. There was a perception that people were not taking the process seriously. There was a fear of votes being stolen or being rendered meaningless because of voter fraud. Even if evidence of actual ballot tampering and voter fraud was not made public, the fear was still there.

    It wasn't just the States that were concerned about fraud. In 2005, the Commission on Federal Election Reform (aka the Carter-Baker Commission) made a bipartisan recommendation for voter identification at the polls because of the growing lack of confidence in integrity of the voting process. Even the government acknowledged a legitimate state interest in ensuring and protecting the integrity in the voting process.

    Ever since Americans have lost faith in the integrity of the election process and the honesty of the voting process, voter identification has become an important provision in most state voting laws. Many states have opted for some form of photo ID provision, although some states have included other forms of identification that will serve as well. In these laws, there are procedures for when a voter does not have identification: If a voter fails to show the ID that is asked for by law, states provide alternatives and these alternatives fit into two categories - non-strict and strict.

    Voter ID laws that are "non-strict" provide at least some voters who lack acceptable identification when they show up to vote to have an opportunity to cast a ballot that will be counted without further action on the part of the voter. For instance, a voter may sign an affidavit of identity, or poll workers may be permitted to vouch for the voter. In some of the "non-strict" states (Colorado, Florida, Montana, Oklahoma, Rhode Island, Utah and Vermont), voters who do not show required identification may vote on a provisional ballot. After the close of Election Day, election officials will determine (via a signature check or other verification) whether the voter was eligible and registered, and therefore whether the provisional ballot should be counted. No action on the part of the voter is required. In New Hampshire, election officials will send a letter to anyone who signed a challenged voter affidavit because they did not show an ID, and these voters must return the mailing, confirming that they are indeed in residence as indicated on the affidavit.

    With "strict" Voter ID laws, on the other hand, voters without acceptable identification must vote on a provisional ballot and also take additional steps after Election Day for it to be counted. For instance, the voter may be required to return to an election office within a few days after the election and present an acceptable ID to have the provisional ballot counted. If the voter does not come back to show ID, the provisional ballot is not counted.

    While states wanted to enact laws to safeguard the integrity of the voting process, many were already walking a narrow line with the federal government on account of their history of past discrimination against African-Americans. They understood that if their laws were challenged, and challenged as being discriminatory, they would surely see them struck down under the Voting Rights Act of 1965. The key provision of the Voting Rights Act - Title IV - identified nine Southern States along with specific districts in other states (including almost all of the districts in NC) as having a history of intentional discriminating against African-Americans and disenfranchising them in their right to vote. Consequently, these states and districts were required to submit their voting laws and voting practices, including voter ID laws, redistricting, and even the moving of polling locations with the US Justice Department for pre-clearance. In other words, if the US DOJ found that any voting law, redistricting plan, or movement of polling location evidenced a plan to discriminate against African-Americans, then the law or plan would be struck down under Title IV.

    But in 2013, the Supreme Court struck down Title IV in the case Shelby v. Holder as being outdated. In writing for the majority, Chief Justice John Roberts relied on data which showed that the US government was using outdated information, going back over 40 years, to continue to claim racial discrimination in those states. Roberts wrote that the system is based on "40-year-old facts that have no logical relationship to the present day." He continued by writing that the government can no longer continue singling out certain states by relying on the past.

    The Court argued that an extraordinary corrective is no longer needed when the problem ceases to exist.

    In writing the decision, Chief Justice Roberts also relied on comparison data to show that when the Voting Rights Act was enacted, only 6% of African-Americans were registered to vote in Mississippi, a state noted for its civil rights violations. In the 2004 election, African-American voter registration was 76% in Mississippi, almost four percentage points higher than the white registration rate. In the 2012 election, Chief Justice Roberts wrote: "African-American voter turn-out exceeded white voter turn-out in five of the six states covered by the pre-clearance requirement." With Title IV invalidated, the meat of the Voting Rights Act is gone. Title V is really meaningless without Title IV, and many lawyers believe that it will be struck down soon as well.

    "The Selma of 1965 and the Selma of 2016 are very different places. When it comes to the franchise, this is in no small part because the Voting Rights Act did what it was supposed to do: namely, eliminate the scurrilous "tests and devices" (such as literacy tests) used to keep certain groups of voters from the ballot box. Liberals should be cheering the fact that we are no longer in need of the most aggressive provisions of the Voting Rights Act." ["North Carolina's Voter ID Law Should be Restored," The National Review, 2016]