What I don't understand is how the court concluded that a photo ID constituted intentional discrimination against African-Americans when many states already require photo ID's to vote, including strict photo ID laws, and the law itself provides one free of charge to anyone who doesn't have one or cannot afford one. Furthermore, the Supreme Court held in Crawford v. Marion County (2008) that a strict photo ID requirement to vote, to prove the identity of the person seeking to cast a vote, does not constitute an undue burden at all on anyone in their exercise of the right to vote. It addressed a challenge to Indiana's strict photo ID law and upheld it. (North Carolina's Voter ID law was modeled after it). There are black people in Indiana, there are poor black people in Indiana, there are elderly people there, and there are poor elderly there; yet the Supreme Court, after reviewing all the evidence and testimony given at the district court level, still concluded that requiring a photo ID as a condition to vote in person is not discriminatory and does not impose an undue burden.
The court, in its analysis, I believe, committed several serious errors. First, it converted a privilege (a long early voting period, two Sunday voting days, same-day registration, etc) into an entitlement. Instead of looking into whether the changes would absolutely prevent any voter who really wished to vote from doing so, the court should have looked into whether blacks would likely be able to conform with the stream-lining of the voting laws. What are voters actually entitled to when it comes to early voting and opportunities to register? And what are African-Americans specifically entitled to, above and beyond what are offered to persons of other races?
Up until the end of 1990's, voters in North Carolina were only "entitled to" one day to vote - Election Day, a Tuesday. If a voter couldn't vote at that time, he or she could either submit an absentee ballot or forfeit the opportunity. At what point must we submit to making election increasingly more convenient, especially when apparently, only one group of voters benefits? Remember, there are significant costs associated with early voting.
Second, despite the Supreme Court's holding in Shelby that the DOJ and courts should no longer rely on or consider historical discrimination, the 4th Circuit did exactly that. In its opinion, it continually reminded the reader of North Carolina's "shameful" history of "past discrimination." In its introduction, the opinion noted: "Unquestionably, North Carolina has a long history of race discrimination generally and race-based vote suppression in particular. Although we recognize its limited weight, see Shelby, North Carolina's pre-1965 history of pernicious discrimination informs our inquiry. It was in the South that slavery was upheld by law until uprooted by the Civil War, that the reign of Jim Crow denied blacks the most basic freedoms, and that state and local governments worked tirelessly to disenfranchise citizens on the basis of race."
Third, in forming it's opinion, the 4th Circuit did something that a court is never supposed to do (under the Separation of Powers doctrine) and that was to substitute its judgment for that of the legislature. To the court, the justifications in enacting the law may not have seemed good enough. Maybe the court felt that the excessive voting tools and voting mechanisms to benefit predominantly black voters were more important than addressing voter fraud, election fraud, ensuring voter confidence in NC elections, costs, etc. But that is exactly what a court must not do - substitute its judgement for that of the legislative body responsible to its particular constituency, its taxpayers. Here are some justifications that the 4th Circuit should have considered rather than dismiss:
(a) Early voting imposes a tremendous cost. It is a rightful exercise of the legislative body to try to keep state costs at a minimum.
(b) Maybe the General Assembly asked for the data, broken down by race, etc, in order to streamline early voting and to streamline the voting laws in such a way that when extra days, extra procedures benefit only one race instead of everyone, then that would seem a common sense way to look at making changes.
(c) Maybe the General Assembly had access to information related to voter fraud in the state, when it is committed, by which group of people, etc and the changes made to the voting laws were intended to minimize the potential for voter fraud and election fraud. What I do know is that certain of the voting tools and procedures originally permitted in North Carolina have been great sources of problems. Pre-registration, same-day registration, same-day voting pose great potential for abuse and voter fraud. And what I also know is that decent people of good intentions have watched for years as the democrat-controlled State Board of Election did absolutely nothing when faced with hard evidence of actual voter fraud. It refused to prosecute any of the criminals.
(d) Perhaps the streamlining of voter laws, its voting mechanisms and voting tools, was strictly political rather than racial. Since one cannot separate race from political party in North Carolina (blacks make up 22% of North Carolina's electorate, and 83% identify with the Democrat Party), so every law affecting a political party in general also affects blacks particularly. In fact, having black skin is a better predictor for voting Democratic than party registration here in North Carolina. Maybe the General Assembly, with Republicans in the majority and wanting to continue enjoying political power, thought that it made sense to amend the voting laws by eliminating or paring back those tools and mechanisms that Democrats particularly take advantage of. The justification would be political (as political parties are prone to do) rather than racial. Here is something else to consider:
(e) Perhaps the General Assembly had some data and facts and figures to support their photo ID requirement, such as:
(i) Black voter turnout was higher than white voter turnout in 2012, including in states that had implemented voter ID laws. (This is according to U.S. Census Bureau data, and even the leftist PolitiFact)
(ii) A recent study of the 2010 and 2012 primaries and general elections shows that voter ID laws did not disproportionately decrease minority turnout. (In fact, the study showed that turnout declined for people of all races from 43 to 31 percent, as ID requirements became stricter). Contrary to what the left claims, photo ID requirements don not discriminate disproportionately according to race.
(iii) Despite what the left argues and the mainstream media reports, voter fraud does exist. In 2012, the Pew Research Center found the following:
There were almost "24 million active voter registrations in the US which were either invalid or inaccurate
There were almost two million dead Americans were still on the active voting lists.
12 million voter records were riddled with "incorrect addresses or other errors."
Almost 2.75 million voters were registered in over one state.
6.4% of all noncitizens voted illegally in the 2008 presidential election, and 2.2% voted in the 2010 midterms. (80% of illegals vote Democratic)
(iv) In a close election, voter fraud could play a significant role. There is evidence that Al Franken, in fact, won his election due to voter fraud, with illegals playing a part.
(v) Polls show that the vast majority of Americans support voter ID laws, including Democrats and blacks. Poll after poll confirms this, including the Rasmussen Poll, the FOX News Poll, and the Washington Post Poll.
Again, a court's role is simple and must never presume to impart a different intention to, or to substitute its judgement for that of the legislative body. That is why, under the Separation of Powers doctrine, each branch of government has its own separate role.
III. THE ANALYSIS
So let's look at the NC Photo-Voter ID Bill and assess it in light of the requirements of the 15th and 14th Amendments, as guided by the Supreme Court's opinions in Shelby v. Holder and Crawford v. Marion County.
First of all, recall that the 14th and 15th Amendments, together with the 13th, are the Reconstruction amendments abolishing slavery and then granting blacks rights of citizenship (constitutional and civil. The amendments were intended to serve a specific purpose, necessitated by the political situation created by an unconstitutional war and in part, motivated by a desire to punish the southern states for seceding.
All three amendments, for the particular purposes they served, were morally justified - the 13th to abolish the vile and unconscionable institution of slavery, the 14th to grant citizenship to the free blacks and newly-freed slaves (and in fact, to define citizenship since nowhere in the Constitution is it defined), to ensure they were recognized with the same rights as every other citizen, to make sure they would not be denied due process should their liberty rights or property rights be violated, and to make sure they would be assured equal protection under the law, and the 15th to make sure that blacks would not be denied the right to vote.
The 15th Amendment was indeed striking in what it accomplished. On March 30, 1870, the amendment immediately made voters out of 4,000,000 people who had only 13 years earlier, been declared by the highest tribunal in the land (the Supreme Court, in the 1857 Dred Scott decision), as not being capable of becoming citizens of the United States because the black man who never intended to be part of the country so created, that "black men had no rights which the white man was bound to respect" (conclusions articulated by Justice Roger Taney, who wrote the opinion in Dred Scott). But let's not read anything more into the language or intent of the 15th Amendment than was intended.
The 15th Amendment simply states that the right to vote cannot be denied or abridged to a person on account of race (ie, blacks cannot be denied the right to vote). We know what the word "denied" means and we know what the word "abridged" means (to curtail). The NC Photo-Voter ID Bill does nothing to deny or abridge the right. It puts reasonable procedures in place to guarantee the right to vote for everyone Every instance of voter fraud cancels someone's rightful vote. Obtaining an identification with a photograph is not unduly burdensome and is, in fact, is something that 99.99% of the people already do once they come of age and what they need to carry out many of life's functions - such as get medication, pick up a check, cash a check, use a check or credit card, enter a school building, enter a courthouse, fly, etc. The Supreme Court has already ruled (in 2008, in the case of Crawford v. Marion County Board of Elections) that a voter ID law requiring persons who show up at the polls to vote to present a government-issued form of photo identification (strict photo ID requirement) presents no meaningful burden to a person's right to vote. It's 2018, for crying out loud !!!
The second section of the 15th Amendment which provides that "Congress shall have power to enforce this article by appropriate legislation," does NOT imply that the Voter Rights Act is a permanent law to be used on the South. That section simply means that when states or political subdivisions thereof employ verifiable schemes of black voter suppression or actual disenfranchisement of the black vote, the federal government has the authority to step in to correct the situation in order to give meaning to the guarantee in Section 1. The Supreme Court, in Shelby County v. Holder (2013) made the constitutional determination that the Voting Rights Act has outlived its usefulness against the south because those invidious schemes no longer exist.
To repeat, Shelby removes North Carolina from the preclearance requirement with the federal government (NC can now do its own thing !) and Crawford stands for the constitutional bright-line rule that a strict photo ID is not inherently racist or discriminatory and does not pose any meaningful burden on a person's right or ability to vote.
Furthermore, according to the Supreme Court, all rights can be abridged. We already know the first amendment rights to speech and religion, the rights to be free from searches, and the right to obtain and possess guns are already abridged.
The 14th Amendment provides that all laws should be equally applied to everyone ("Equal Protection;" everyone is protected or served equally by our laws). The 14th Amendment requires "equal" protection and not "special" protection. The NC Photo-Voter ID Bill is neutral on its face and is written to ensure that every single voter can meet its requirements, including the poor and the elderly. A photo ID will be provided, free of charge, to anyone who cannot afford one and it will be provided at all county board of elections (which is more convenient than waiting in line at DMV locations). Everyone knows someone that drives. To make any argument that certain people are too poor or too isolated to be able to find someone to give them a ride would be to assume we never modernized or entered the industrial era. A country, and a court system, so intent on moving forward with such sweeping social change like same-sex marriage and transgender acceptance can't at the same time, assume people can't get access to a car or a phone or a computer or a DMV or other county office.