The Court Case That Could Test GOP States' New Voting Rules

by | July 13, 2015

By Anne Blythe

Joseph Mat Windsor grew up in Surry County but was in graduate school in Australia in November 2012 when he sought an absentee ballot so he could vote in the presidential election.

Though he had no idea at the time, his use of an overseas absentee ballot canceled his registration in his home county.

This past November, Windsor, 33, flew home from a work trip specifically to get to an early-voting site in Surry County so he could cast a ballot in the elections. That's when he found out that he no longer was registered to vote there. And because North Carolina's election law overhaul in 2013 prohibits people from registering to vote during the early-voting period, he was unable to have a say in the 2014 elections. In the past, he could have registered and voted on the same day.

Windsor's is one of almost 30 voter stories that civil rights organizations plan to present during the federal trial set to begin Monday in a Winston-Salem courtroom.

The elimination of same-day registration was part of an elections law overhaul adopted by the N.C. General Assembly in July 2013, one month after the U.S. Supreme Court invalidated key parts of the Voting Rights Act.

U.S. District Judge Thomas Schroeder has given lawyers arguing against and for the changes between two and three weeks to make their case in a bench trial that could test the constitutionality and sweep of new voting rules adopted in Republican-led states.

The trial begins almost a month before the 50th anniversary of the landmark Voting Rights Act, which knocked down state and local efforts to keep African-Americans from voting. Though arguments over North Carolina's voter ID provision will be considered separately after the legislature unexpectedly softened the requirement last month, the judge will consider the constitutionality of other provisions, including:

-- Reducing the state's early voting period by a week.

-- Eliminating pre-registration for those aged 16 and 17.

-- And not allowing people to cast provisional ballots if they went to the wrong precinct to vote.

Goal is fraud-free elections

Sponsors of the changes contend they are simply measures to ensure clean and fraud-free elections.

"The bottom line is it offers everybody the same opportunity to vote," said Sen. Bob Rucho, a Mecklenburg County Republican who voted for the overhaul. "Everyone who is eligible to vote will be able to do so."

Challengers argue that the changes are thinly veiled attempts to make it more difficult for often Democratic-leaning African-American, Hispanic and young voters to vote and that there is scant evidence of voter fraud. The U.S. Justice Department, the NAACP, League of Women Voters and others have filed suit against North Carolina challenging the law. Schroeder will hear arguments from each group during the trial.

Anita Earls, executive director of the Southern Coalition for Social Justice, said the case will decide whether it is up to individual voters to figure out how to navigate "the maze" and "jump through bureaucratic hoops" put in place in 2013 or if it's the state's responsibility to try to make voting as easy as possible for those eligible to cast ballots.

In the days leading up to the trial, voting rights advocates have released statements and plans for a prayer service and rally in Winston-Salem.

The Rev. William Barber II, head of the N.C. NAACP and an architect of the "Moral Monday" protest movement challenging the General Assembly's recent sharp swing to the political right, calls the fight against the 2013 elections law "our Selma."

Penda D. Hair, co-director of the Advancement Project, which has joined in the legal challenge with the NAACP, said: "We have a strong case against North Carolina's voting law, showing not only that the measure is discriminatory but that lawmakers knew it would harm voters of color and passed it anyway. Behind each statistic and legal argument, however, are the stories of real people whose voting rights have been assaulted. Our case is about these voters and ensuring that elections are free, fair and accessible for all."

No declines in 2014 midterm elections

Attorneys representing the state hold up turnout figures from the 2014 election to argue that the overhaul did not have the discriminatory impact that challengers contend.

"Notwithstanding the opinions of plaintiffs' experts, African American participation in early voting and Election Day voting during the 2014 elections increased as compared to both the 2010 Primary and General Election," the attorneys stated in a pretrial brief. "North Carolina remains one of the more generous states for voters who wish to engage in early voting. None of these practices constitute severe burdens and are therefore constitutional."

Attorneys for the state add further that challengers have yet to present experts to testify that the law "will cause a decline in African-American registration or turnout." Nor have they shown how the measures "will otherwise deprive African Americans of an equal opportunity to participate in the political process and to elect representatives of their choice."

Voting rights advocates counter that the 2010 and 2014 midterm elections should not be used as comparisons because of the races on the ballots. The 2014 race between former Sen. Kay Hagan, a Democrat fighting to keep her seat, and former N.C. House Speaker Thom Tillis, the Republican who was elected, was the costliest in U.S. history and a contest that drew more voters than usual to the midterm elections.

The challengers also cite a recent report by Democracy North Carolina, an organization that researches voter participation trends. The organization analyzed provisional ballots cast during the 2014 election and concluded that 2,344 rejected ballots would have been counted if the 2012 elections law was in place.

The study estimated that "the new voting limitations and polling place problems reduced turnout by at least 30,000 voters in the 2014 election" and had a disproportionate impact on African-American and Democratic voters. African-Americans cast 38 percent of the rejected ballots but constitute 22 percent of registered voters. Democrats accounted for nearly half of all rejected ballots.

Bob Hall, executive director of Democracy NC, said the study turned up evidence of state agencies, such as the Divsion of Motor Vehicles, routinely not registering voters when they should have. A critic of the 2013 changes, Hall said the legislature "cherry-picked provisions in the law" that were working to increase the number of young and minority voters in recent years.

Many expect the North Carolina trial to be of great interest to people outside the state. People for and against voter ID laws and other election-law changes in GOP-led states will await the judge's decision. Any ruling is likely to be challenged and could eventually land in the Supreme Court.

"The eyes of the nation will be watching," Hall said.

(c)2015 The News & Observer (Raleigh, N.C.)