May I vote please?

The systematic change in North Carolina election laws and the lasting impact of the Voting Rights Act of 1965

Photo by Washington Bureau/Getty Images.

North Carolina House Bill 589 proposed changing more than just requiring voter identification at the polls; it was a complete transformation of voting rights in North Carolina.  The bill was passed in August 2013 by the North Carolina General Assembly and signed into law by Governor McCrory, bringing a dramatic change to how elections are conducted in the state.  This 2013 law has now led to a lawsuit under the Voting Rights Act of 1965.  The Act, which was signed into law by President Lyndon B. Johnson, was aimed at and was a significant step towards increasing the rate of minority voting, and ending the longtime racial discrimination in the South.

The current litigation, North Carolina NAACP v. McCrory, involves the North Carolina NAACP, the League of Women Voters, the Justice Department, and a group of college students.  United States District Court Judge Thomas D. Schroeder has been assigned to hear the case for the United States District Court for the Middle District of North Carolina.  The lawsuit alleges that the 2013 legislative changes to state voting laws illegally discriminate against minorities in violation of the Voting Rights Act of 1965.

The horrific acts committed on supporters in Selma were just one part of a larger discriminatory scheme against African Americans voting in the South

The Voting Rights Act of 1965 was inspired by events that took place during the Civil Rights movement.  During the movement, supporters of voting rights were forced to endure extreme violence and brutality at the hands of those opposing the movement.  A significant, if not the most significant, event for the movement occurred during a peaceful, organized march from Selma, Alabama to Montgomery, Alabama.  After arriving in Montgomery, the state capital, supporters were attacked by state police who used tear gas, nightsticks, and whips to harm them.  The horrific acts committed on supporters in Selma were just one part of a larger discriminatory scheme against African Americans voting in the South.

African Americans were given the right to vote by virtue of the Fifteenth Amendment passed in 1870.  Yet despite the amendment, literacy tests, incorrect voting applications, and a myriad of other reasons kept African Americans from actually voting in elections.  One week after the events in Selma, President Johnson requested voting rights legislation.  The monumental voting rights bill was signed into law on August 6, 1965, by President Johnson and was a symbolic legacy of the success of the Civil Rights movement.

The 2013 voting rights law made several big changes to voting in North Carolina

The Voting Rights Act has now been brought back into the spotlight with the current lawsuit.  “This is our Selma,” William J. Barber II, president of the North Carolina NAACP, proclaimed about the 2013 changes to the law.  The plaintiffs in the case argue that the laws not only have a discriminatory effect on minority voters, but also that the laws were designed to suppress minority voting.  The plaintiffs claim that the law violates the Fourteenth and Fifteenth Amendments to the United States Constitution.  Ultimately, the plaintiffs have the burden of proving that the 2013 changes were based on intentional discrimination by the state targeted at suppressing Black, Hispanic, and young voters.

The State argues however that the 2013 changes to the law were not intended to suppress anyone from voting but were passed in order to restore confidence in elections.  Voter fraud has been frequently cited as the main reason behind the sweeping changes.  Although North Carolina has a past riddled with discrimination in voting, the State has argued that the past should not dictate the future.  Karl S. Bowers, the attorney representing Governor McCrory, said in opening statements, “North Carolina, like many other states all over the country, has a terrible history of discrimination.  Nobody in this courtroom disputes that.  But the history of North Carolina is not on trial here.”

The 2013 law made several big changes to voting in North Carolina.  In addition to the elimination of the annual state-sponsored voter registration drive, there will be no straight party ticket voting.  The law also eliminated pre-registration which allowed for 16 and 17 year olds to pre-register to vote, making them automatically registered to vote upon turning 18.  Significantly, early voting days were decreased from ten to seven and same-day voter registration will no longer be allowed.

The voter ID requirement under the new law will be dealt in a legal setting on a later date that is yet to be determined.  However, in June 2015, the North Carolina legislature created an exception to the law for voters without ID’s.  The exception will permit voters without identification to sign an affidavit stating they had a “reasonable impediment” which prevented them from obtaining the required identification.  There are eight reasons that will qualify as being a “reasonable impediment” under the law.  Examples of these include restrictive work schedules that did not allow a voter to obtain an ID, transportation issues, and disability or illness.  The State’s ID requirement is set to take effect in 2016.  However, the other changes are currently being litigated in this lawsuit.

The opinion issued by the Court in Shelby County v. Holder in June of 2013 was crucial for any changes to be made to North Carolina’s voting laws

The sweeping changes in North Carolina were not random.  Other states changed their voting laws around the same time frame as North Carolina did because of an important case holding from the United States Supreme Court.  The opinion issued by the Court in Shelby County v. Holder in June 2013 was crucial for any changes to be made to North Carolina’s voting laws.  The Court by a 5-4 vote struck down Section 4 of the Voting Rights Act of 1965, holding it unconstitutional.

Chief Justice John G. Roberts Jr. wrote the majority opinion, stating that the section (also known as the pre-clearance provision) still imposes significant burdens on particular jurisdictions because of conditions that existed in the 1960’s and 1970’s.  The section found to be unconstitutional by the Court dictated a formula that was followed in order to determine which jurisdictions were restricted from making any changes to their election laws without approval.

“Our country has changed,” Chief Justice Roberts wrote, sealing the section’s fate.  However, Chief Justice Roberts did find it important to note that only one section of the law was being struck down, with the law still remaining mostly intact.  He stated, “Our decision in no way affects the permanent, nationwide ban on racial discrimination in voting found in Section 2.”

In the Act, there are specific enforcement provisions directed at states with the most racial discrimination at the time of the Act’s enactment

Before the opinion was announced, the Voting Rights Act of 1965 had seriously limited what North Carolina and other similarly situated states could do in relation to enacting voting laws in their respective states.  In the Act, there are specific enforcement provisions directed at states with the most racial discrimination at the time of the Act’s enactment.  States included in this section could not make any changes affecting voting “until the Attorney General or the United States District Court for the District of Columbia decided that the change did not have a discriminatory purpose and would not have a discriminatory effect.”  Once the Court struck down the section of the Act that restricted certain jurisdictions, states acted quickly in making changes to voting laws.  Lawsuits quickly followed these changes.

The case in North Carolina will be finishing up soon at the district court level, with a decision from the bench expected to take some time.  However, the destiny of the 2013 voting law changes in North Carolina is still a mystery.

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About Olivia Bouffard, Staff Writer (12 Articles)
Olivia Bouffard is a 2016 graduate and served as a Staff Writer for the Campbell Law Observer. She graduated from UNC-Wilmington with a Bachelor of Arts in Political Science in 2013. Following her first year of law school, Olivia participated in a study abroad program at Cambridge University. During the Fall 2014 semester she interned with Judge Stanford L. Steelman, Jr. at the North Carolina Court of Appeals. Olivia worked with the Department of Public Instruction as a legal intern with the State Board of Education during the summer before her third year.