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

    THE NC VOTER ID LAW -

    In 2010, the North Carolina witnessed a historic election for its state government. For the first time since the 1800's, the people of the state elected a Republican majority. One of the popular mandates of that election was that the newly-elected representatives would deliver on a promise to enact a common-sense Voter ID law to ensure voter integrity. For years, it appeared that the legislature was stalling on its promise.

    What the legislature was doing was trying to draft a law that would survive Title IV scrutiny. It was consulting with attorneys to navigate the area of Voter ID laws and the Voting Rights Act.

    But after the 2013 Shelby decision, the NC legislature decided to alter its earlier voter law to make it harder to commit voter fraud or to engage in any improper voting schemes. North Carolina took very seriously the constitutional standard of "One Person, One Vote." And so, in 2013, the legislature enacted HB 589, the NC Voter ID law. It essentially altered the state's earlier voting law by adding a photo ID requirement and five provisions which either restrict the early voting period or restrict registration. The law was considered a "strict" voter ID law.

    Under the NC Voter ID law, every person voting in person must present a photo identification, except for a registered voter voting curbside (other options for identification are available) and for a registered voter who has a sincerely held religious objection to being photographed (that person must have filed a declaration with the local Board of Elections at least 25 days before the election]. The original law (2013) provided that any voter who did not comply with the photo ID requirement would be permitted to vote by provisional ballot but that vote would not count unless that person showed up in person at the Board of Elections office by noon on the day prior to the convening of the election canvassing with a valid ID. (The ID requirement would end up being softened, as will soon be explained).

    Now, after the Shelby decision and after having lawyers review the language of its Voter ID law to make sure it passes constitutional muster, the NC legislators were pretty confident that they had enacted something that would bring honesty and integrity back to the state's voting process. They had done their due diligence. A voter ID requirement in fact had been upheld by the US Supreme Court as a reasonable limitation on a person's exercise of voting rights.

    In 2005, Indiana passed a strict Voter ID law. It was the most restrictive voter law at the time. The strict photo identification requirement in order to cast a vote was challenged as being an unreasonable burden on the right to vote and that challenge made its way to the Supreme Court in 2008. [Crawford v. Marion County Election Board, (2008)]. Civil rights groups (including ACORN), the Women's League of Voters, and other groups filed amici briefs challenging the constitutionality of the ID requirement. After concluding that no voter would conceivably be precluded from voting under the law, the Supreme Court upheld the constitutionality of the photo ID requirement, finding it closely related to Indiana's legitimate state interest in preventing voter fraud, modernizing elections, and safeguarding voter confidence.

    Justice John Paul Stevens, who wrote the majority opinion, stated that the burdens placed on voters are limited to a small percentage of the population and were offset by the state's interest in reducing fraud. He opined: "Because Indiana's cards are free, the inconvenience of going to the Bureau of Motor Vehicles, gathering required documents, and posing for a photograph does not qualify as a substantial burden on most voters' right to vote, or represent a significant increase over the usual burdens of voting. The severity of the somewhat heavier burden that may be placed on a limited number of persons-e.g., elderly persons born out-of-state, who may have difficulty obtaining a birth certificate-is mitigated by the fact that eligible voters without photo identification may cast provisional ballots that will be counted if they execute the required affidavit at the circuit court clerk's office. Even assuming that the burden may not be justified as to a few voters, that conclusion is by no means sufficient to establish petitioners' right to the relief they seek."

    Justice Scalia wrote separately in a concurring opinion: "The law should be upheld because the overall burden is minimal and justified." He went on to state that the Supreme Court should defer to state and local legislators and that the Supreme Court should not get involved in local election law cases, which would do nothing but encourage more litigation. "It is for state legislatures to weigh the costs and benefits of possible changes to their election codes, and their judgment must prevail unless it imposes a severe and unjustified overall burden upon the right to vote, or is intended to disadvantage a particular class," he wrote.

    In addition to the challenge that the strict ID requirement was an unreasonable burden on the right to vote, civil rights groups alleged that the requirement benefited Republicans and harmed Democrats at the ballot box (because Democrats include more poor people and minorities). Justice Stevens, joined by Justices Scalia and Kennedy, disregarded that argument and wrote: "The justifications for the law should not be disregarded simply because partisan interests may have provided one motivation for the votes of individual legislators."

    What exactly does the Indiana Voter ID law require of each voter when he or she shows up to vote? This is important because according to the Supreme Court, the ID requirement is NOT an unreasonable limitation on the right to vote. The Supreme Court did not say it was not an unreasonable limitation on the right to vote for a WHITE person. The Court held that the limitation was not an unreasonable limitation on any person's right to vote.

    Under the Indiana Voter ID law, voters MUST have a specific form of ID in order to vote. The ID must be issued by the state of Indiana or the U.S. government and must show the following:

    • Name of individual to whom it was issued, which must conform to the individual's registration record

    • Photo of the person to whom it was issued

    • Expiration date (if it is expired, it must have an expiration date after the most recent general election; military IDs are exempted from the requirement that ID bear an expiration date)

    Voters in Indiana who are unable to or decline to produce such an identification may vote a provisional ballot. The ballot is counted only if: (1) the voter returns to the election board by noon on the Monday after the election and: (A) produces proof of identification; or (B) executes an affidavit stating that the voter cannot obtain proof of identification, because the voter: (i) is indigent; or (ii) has a religious objection to being photographed; and (2) the voter has not been challenged or required to vote a provisional ballot for any other reason. [Indiana statute §3-5-2-40.5, 3-10-1-7.2 and 3-11-8-25.1]

    It should be noted that Indiana is racked with voter fraud. Just last week, on October 6, a massive voter fraud scheme was discovered. Democrats and unions were found to be paying people to go vote in Illinois. [And Democrats, minorities, the US DOJ, and the federal courts still like to insist that voter fraud is imaginary and unsubstantiated].

    In 2014-2015, the NC chapter of the NAACP, other civil rights groups, and the US Department of Justice challenged the NC Voter ID law (HB 589) as being discriminatory against African-Americans. The challengers alleged that the NC legislature (Republican majority) selectively chose voter-ID requirements, reduced the number of early-voting days, and changed registration procedures in ways meant to harm blacks, who overwhelmingly vote for the Democratic Party. The specific provisions that were challenged were:

    (i) Photo ID

    (ii) Elimination of the first week of Early Voting (cutting down the total number of early voting days from 16 to 10)

    (iii) Elimination of one of the two Sunday voting days ("Souls to the Polls")

    (iv) Elimination of Same-day registration

    (v) Elimination of provisional votes (including out-of-precinct votes)

    (vi) Elimination of Pre-registration (permitting 16 and 17-yr-olds, when obtaining a driver's license, to indicate their intent to vote)

    In anticipation of the lawsuit and almost on the eve of the start of the trial (federal district court, Winston-Salem), the legislature met in session to quickly amend the strict ID requirement. The Voter ID bill was amended it to provide more relaxed options to those who show up to vote without a photo ID. Under the amended NC Voter ID law, voters who lack a photo ID (those who claim they cannot obtain one) would be able to cast a ballot after providing their birthdates, the last four digits of their Social Security number, and an affidavit stating that there is a "reasonable impediment" to their ability to present a photo ID. As a result of the "relaxed" ID requirement, the NC voter ID law was reclassified as a "non-strict" voter ID law.

    The trial, which began in July 2015 and concluded in January 2016 (the provisions were addressed in two separate phases) vindicated the NC General Assembly. The federal district court upheld the provisions, including the relaxed photo ID requirement. Although Reverend Barber characterized the bill as a return to Jim Crow, Judge Schroeder did not agree. He sided with the position advanced by Governor Pat McCrory: "The history of North Carolina is not on trial here." Judge Thomas Schroeder wrote: "There is significant, shameful past discrimination. In North Carolina's recent history, however, certainly for the last quarter century, there has been little official discrimination to consider."

    In upholding the NC Voter ID bill, Judge Schroeder wrote: "North Carolina has addressed legitimate state interests with its voter identification requirement and electoral system. The provisions of the bill are consistent with the mainstream of other states."

    Barber, the US Department of Justice, other civil rights groups, and other appellants quickly filed an appeal to the US District Court of Appeals for the 4th Circuit (which covers appeals from district courts in NC, SC, VA, MD, and WV, and is situated in Richmond, VA). They continued their racial claim against the NC legislature, alleging that by eliminating tools that make it easier for everyone to vote, they really did so to harm African-Americans in their ability to get out to vote since those tools particularly benefitted that minority group. This past July, the 4th Circuit reversed the decision of the lower federal court, sided with the civil rights groups, and struck down all the provisions that were challenged.

    The Supreme Court, the highest federal court of the land, upheld a strict Photo ID law (strict photo ID requirement to vote) in Indiana, concluding that it was not an unreasonable limitation or burden on the right to vote. North Carolina's Voter ID law, however, which is a "non-strict Photo ID" law, was struck down by the same federal court system. I don't understand.

    In fact, the federal courts are all over the place with respect to strict voter identification laws. (Which makes it very likely that the Supreme Court will have to agree to hear another such case). While the Supreme Court has held that the federal government cannot single states out based on its prior history of discrimination, the federal courts are continuing to do just that. The official proclamations say one thing but in practice, the justices continue as if the Shelby decision was never handed down. For example, on March 23, 2015, the US Supreme Court declined to hear a challenge to Wisconsin's strict voter ID law. Wisconsin's law absolutely requires that a photo identification be shown before a voter is allowed to cast a ballot. The law is now in effect. In 2011, Texas' strict photo ID provision was struck down as violating the Voting Rights Act and Arkansas's strict voter ID law was struck down as well.

    DECISION OF THE 4th CIRCUIT --

    The US Federal Circuit Courts of Appeals represent the federal appellate court system. There are 12 such Courts of Appeals to serve the 12 federal appellate jurisdictions (aka, 12 federal circuits). North Carolina is covered by 4th Circuit. Appellate courts do not hear a case in the first instance; that is, they are not the trial court and do not listen to or sift through the evidence. Instead, they hear a case on appeal, addressing errors of law (specifically, errors in the application of law to the facts). An appeal to a Circuit Court of Appeals is heard by a panel of 3 judges. And an opinion is issued by either 2 or 3 of those judges. That's it. Agreement among 2 or 3 judges... that's what constitutes a judicial "opinion" by the federal judiciary at the appellate level. In most instances, since the Supreme Court will only agree to review a very small fraction of their opinions, the opinion of this judicial "majority" will be the law of the land for the particular judicial district. I find this astounding and frankly, I find it disturbing and unacceptable.

    While the district court heard the evidence and weighed the legitimate interests of the state versus the possible burden to African-American voters, and concluded that law was a reasonable exercise of legislative power and discretion and in fact, was consistent with other laws which have been upheld by higher courts. A different court, the 4th Circuit, concluded just the opposite. It completely dismissed the legitimate state interests (in addressing voter fraud), accused the legislature of using voter fraud as a mere pretext for intentionally targeting African-Americans and making it harder for them to get out and vote. Two different courts, two radically different conclusions. One listened to testimony and addressed the evidence first hand, the other did not. One was willing to defer to the wisdom and judgement of a legislature duly elected by the people of the state who, with their votes, sent a mandate for voter reform. The other was too willing to dismiss that wisdom and judgement and substitute its own.

    What this sounds like to me is a case of different judges bringing different politics and different ideology to the bench and using them to guide their decision rather than simple rules of statutory and constitutional construction.

    The opinion of the 4th Circuit, to say the very least, was a very disturbing one. In my opinion, in the 21st century, there is no place for an opinion as racially charged as this one. There has been absolutely no evidence that there is any de jure discrimination against African-Americans in the state of North Carolina to warrant such accusations.

    Let's consider just how insane the opinion of the 4th Circuit is. First of all, in writing the opinion for the court, Judge Motz concluded: "After years of preclearance [that would be Title V of the Voting Rights Act of 1965, passed to remedy the effects of Jim Crow and the poll taxes and literacy tests that were used in certain southern states to keep African-Americans away from the polls], by 2013 African-Americans were poised to act as a major electoral force. [The fact that an African-American was running for president was a major factor in energizing them to vote; this was not mentioned by the Court]. But, on the day after the Supreme Court issued Shelby County v. Holder, 133 S. Ct. 2612 (2103), eliminating pre-clearance obligations [striking down Title IV], a leader of the party that newly-dominated the legislature (and the party that rarely enjoyed African-American support) announced an intention to enact what he characterized as an omnibus election law. [The Court was not correct here. The Republicans have dominated the legislature since 2008, when an election mandate sent a clear message that Democratic policies were no longer to be tolerated. Furthermore, the Republican Party has long been the political party that has enjoyed African-American support; in fact, from 1860-1964, the Republican Party has been the ONLY party to recognize and fight for the civil rights of African-Americans]. Before enacting that law, the legislature requested data on the use, by race, of a number of voting practices. Upon receipt of the race data, the General Assembly enacted legislation that restricted voting and registration in five different ways, all of which disproportionately affected African-Americans. In response to claims that intentional racial discrimination animated its action, the State offered only meager justifications. [The court did not consider voter fraud to be a legitimate justification and in fact, the trial court before it heard no evidence of the enormity of actual voter fraud here in our state]. 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. [Again, the court substituting its judgement and its knowledge of what goes on here in NC, not believing that voter fraud is a legitimate problem]. Thus, the asserted justifications cannot and do not conceal the State's true motivation. In essence, the State took away minority voters' opportunity because they were about to exercise it. This bears the mark of intentional discrimination."

    ** Note that the opinion is in italics. MY comments are added in brackets and are highlighted.

    The OPINION of the 4th Circuit Court of Appeals states, in spirit and effect, that African-Americans are entitled to special guarantees when it comes to their exercise of the right to vote. It states that while restrictions and limitations are indeed allowable and even constitutional, and while they are not an unreasonable burden to white Americans or even to Hispanic Americans, they are not permissible for African-Americans. That is exactly what the decision states. By holding one race to lower standards of compliance, I would venture to say that the opinion is racist. And by implying that a State MUST hold that race to lower standards, it is forcing racism in its law-making. What the decision also states, and what I find also extremely disturbing, is that while the legislature has a legitimate and important state interest at hand and is willing to enact a neutral piece of legislation to address it, just because a group of justices can be convinced by a minority group that it was enacted with an intent to discriminate, the justices puts the opinion of the majority group over the legitimate interests of a state governing body. In other words, the justices can willy-nilly substitute their opinion for the collective decision of a duly-enacted state legislature, vested with the right and authority to legislate on the very issue.

    The court's legal reasoning is not exactly sound. The notion that rolling back same-day registration or shortening early-voting periods is unconstitutional is absolutely absurd. Early voting began in 1988, and thirteen states still do not have it, while same-day registration is still not available in some three dozen states. Are all of these jurisdictions in violation of the Constitution? In North Carolina, citizens - ALL citizens - were only given one day to vote... Election Day until the late 1990's. Was North Carolina violating the Constitution?

    I find it interesting that as the 4th Circuit addressed the photo ID provision of the NC Voter ID law, the judges ended up engaging in their own racial stereotyping of African-Americans. Actually, they merely endorsed the inherent racial stereotyping of Reverend Barber, the NC NAACP, other civil rights groups, and even the US Justice Department. It was the testimony of Justice Department officials who explained that "black voters would be hurt by North Carolina's law" because they are "less sophisticated" than their white counterparts. There was no mention by these civil rights groups, or the US DOJ or the 4th Circuit, as to whether the "unsophistication" also prevents them from taking advantage of the provisions whereby the state provides a free ID to anyone who doesn't already have one AND that citizens can still vote even without an ID if they sign a form at the polling place asserting that there was a "reasonable impediment" that kept them from getting the free ID.

    Indiana's ID requirement, stricter than North Carolina's, was upheld as reasonable. And an almost identical ID law in South Carolina with the "reasonable impediment" exception was upheld as non-discriminatory by a three-judge federal court in 2013. Georgia's Voter ID law was upheld in 2008 and a challenge to Indiana's law failed. Without a doubt, there is strong and broad popular support for voter-ID laws (except by the Democratic establishment). A 2012 Washington Post poll recorded support among nearly two-thirds of blacks and Latinos. In June 2015, 76% of respondents, including 58% of self-identified Democrats, supported voter-ID laws.