From Shelby County to Our Backyard: How North Carolina’s Voter Verification Act Will Disenfranchise Voters

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By :Winston Kirby, Guest Contributor

Editor’s Note: The Campbell Law Observer has partnered with Judge Paul C. Ridgeway, Resident Superior Court Judge of the 10th Judicial District, to provide students from his Law and Public Policy seminar the opportunity to have their research papers published with the CLO.  The following article is the last of many guest contributions from Campbell Law students published over the summer.

In July of 2013, The North Carolina General Assembly presented House Bill No. 589 to Governor Pat McCrory for his signature.  The bill, entitled “The North Carolina Voter Verification Act” purported to introduce sweeping election reform in North Carolina with the intent of preventing voter fraud.  HB 589 was introduced in the wake of the U.S. Supreme Court’s decision in Shelby County v. Holder, which essentially repealed Section 5 of the Voting Rights Act of 1965 (“VRA”).  Proponents of the bill argued that key provisions, notably the requirement of voter identification, shortening the early voting period from seventeen days to ten, eliminating same day voter registration, and adding restrictions on provisional ballots would have the collective impact of ending voter fraud and protecting the integrity of the election process.

The North Carolina General Assembly has passed a bill that disproportionately impacts young voters, minorities, and low-income citizens.

North Carolina was the first state to pass a voter identification law in the wake of Shelby County v. Holder.  Opponents of the bill argue that these additional restrictions on voting will place an increased burden on the minority populations in North Carolina, and that the restrictions are fueled by political ambition and racial bias.

In order to understand to potential effects of HB 589, one must first look at the implications of the Court’s holding in Holder.  The noble intentions of the Voter Verification Act are muddied by the potential disenfranchisement of poor black voters.  The North Carolina General Assembly has passed a bill that disproportionately impacts young voters, minorities, and low-income citizens.  The purported benefits of the “Voter Verification Act” are drastically outweighed by the directed impact on a portion of the North Carolina population.  The U.S. Justice Department has filed suit against North Carolina seeking to block portions of the bill that are discriminatory in effect and intent.  Preservation of the integrity in the North Carolina electoral process requires the repeal of HB 589, not the imposition of additional barriers barring citizens from participating in free elections.

After Reconstruction, many southern states sought to maintain the disenfranchisement of racial minorities by enacting “Jim Crow” laws.

It is impossible to understand the effects of the Holder decision or HB 589 without examining the genesis of The Voting Rights Act of 1965.  After Reconstruction, many southern states sought to maintain the disenfranchisement of racial minorities by enacting “Jim Crow” laws.  Southern states passed legislation that imposed poll taxes, property ownership requirements, and “good character tests” under the guise of protecting election integrity.

The Supreme Court generally upheld these efforts to discriminate against racial minorities in the seminal case of Giles v. Harris. In that case, the Court held that the requirement which allowed voters registered before January 1^st, 1903, (mainly white citizens) to be registered for life applied to all citizens and was therefore valid. This eliminated the need for white citizens of Alabama to be subjected to future voter registration requirements, but placed an additional burden on black citizens, most of whom were not registered before 1903.  Furthermore, Justice Oliver Wendell Holmes upheld the dismissal of the case under the theory that the federal government, and by extension the judicial branch, had no authority to issue an order to the states regarding their election requirements.

The issue of voter suppression remained fairly dormant until the civil rights movement put additional pressure on the federal government to protect voting rights of minorities in the 1950s and 1960s.  The Civil Rights Act of 1957 allowed the Department of Justice to enforce civil rights through litigation and to investigate voter suppression.  Three years later, the Civil Rights Act of 1960 allowed federal courts to appoint “referees” to conduct voter registration in jurisdictions that had a history of voter discrimination against racial minorities.  In 1965 Congress passed the “Voting Rights Act,” establishing extensive federal oversight of elections.  The drafters drew from language of the Fifteenth Amendment to prohibit any state or local government from imposing voter qualifications or prerequisites to voting in a manner that results in the denial of vote to any citizen on the basis of race, language, or minority status.

Section 5 of the VRA required that covered jurisdictions receive federal clearance before changing election laws. These “covered” regions were jurisdictions with a history of voter suppression based on race, including forty of North Carolina’s 100 counties.

Central to the Voting Rights Act of 1965 and the discussion of the recent voting changes in North Carolina is Section 5 of the VRA, which became known as the “preclearance” requirement.  Section 5 of the VRA required that covered jurisdictions receive federal clearance before changing election laws.  These “covered” regions were jurisdictions with a history of voter suppression based on race, including forty of North Carolina’s 100 counties.  The “preclearance” provision placed the burden upon the state or local jurisdiction to prove that their voting law was not enacted for the purpose of discrimination.  In Allen v. State Board of Elections, the Supreme Court set a precedent for broad interpretation of Section 5, holding that any change to voting laws, however minor, must be submitted for preclearance.  In 1976, the Court defined the term “discriminatory effect” as any voting change that results in retrogressions. The Court reasoned that this retrogression standard was a correct application of Section 5’s purpose of “insuring gains [made by racial minorities] shall not be destroyed through discriminatory purposes.”

States that had a history of voter suppression were required to submit the proposed election changes to the U.S. Attorney General through an “administrative preclearance” process or seek declaratory judgment by a three judge panel of the U.S. District Court for the District of Columbia.  This had the effect of precluding southern states from passing legislation that resulted in voter suppression.  The federal government now had broad oversight over the election process in states with a history of racial disenfranchisement. This standard remained in effect for nearly fifty years, until the recent decision in Shelby County v. Holder.

The central issue in Holder was whether the twenty-five-year extension of Section 4(b) and Section 5 of the VRA exceeded congressional authority under the Fifteenth Amendment.

In 2006, Congress approved the Voting Rights Act for an additional twenty-five years.  The reauthorization was passed on election data gathered from 1964, 1968, and 1972.  The twenty-five-year reauthorization and use of old election data was challenged in Northwest Austin Municipal Utility District No. One v. Holder.  The Court held that the strict burdens established by Section 5 must be “justified by current needs.”  This case opened the door for additional challenges to Section 5 of the VRA, which was fully addressed in Shelby County v. Holder.

The central issue in the case was whether the twenty-five-year extension of Section 4(b) and Section 5 of the VRA exceeded congressional authority under the Fifteenth Amendment.  Representing Shelby County, attorney Bert W. Rein argued that this extension violated the Fifteenth Amendment and Article IV of the Constitution.  In his brief and oral argument before the Supreme Court, Rein proffered that Congress has failed to produce an adequate evidentiary record to justify the renewal of Section 5 of the VRA.  Additionally he argued that the evidence that Congress relied upon in the renewal of Section 5 of the VRA was composed mostly of denials in preclearance coverage areas and that this decades old data was a poor indicator of the current election climate in these preclearance coverage areas.  He further asserted that the actual direct evidence of voter discrimination is scattered, and that it resulted in “voter dilution” as opposed to denial of ballot access.

Solicitor General Donald B. Verrilli, Jr., arguing on behalf of U.S. Attorney General Eric Holder, maintained that the extension of Section 5 was necessary to counter regression in states with a history of restrictions on minority voting rights.  The Solicitor General argued that there was adequate evidence of voter discrimination in the covered areas and that additional evidence from the actual preclearance process itself should be considered in Congress’ renewal of Section 5.  Furthermore, even if this “voter dilution” effect was not a violation of the Fifteenth Amendment, it was a violation of the Equal Protection Clause of the Fourteenth Amendment.

These challenges to the constitutionality of the VRA were primarily directed at Section 4 of the Act, which determined the jurisdictions that were subject to the preclearance requirement.  Any revision, amendment, or eradication of this section would effectively render Section 5 dead, allowing states to pass new election laws without undertaking the preclearance process.

Chief Justice Roberts reasoned that the reenacted VRA based on data from four decades ago ignores the current election climate and has no logical relation to present circumstances.

The Supreme Court, in a 5-4 decision, found that Section 4 of the VRA which determines the jurisdictions subject to the preclearance requirement was unconstitutional.  The majority opinion was authored by Chief Justice Roberts, with Justices Scalia, Alito, and Thomas concurring.  According to the Chief Justice, the conditions responsible for the implementation of these preclearance restrictions no longer exist in the United States.  Roberts stated “Nearly fifty years later, things have changed dramatically.  Largely because of the Voter Rights Act, voter turnout and registration rates in covered jurisdictions now approach parity.  Blatant discriminatory evasions of federal decrees are rare and minority candidates hold offices at unprecedented rates.”  Roberts further reasoned that while the coverage formula was rational in practice and in theory in 1966, the current coverage formula is based off of decades old data and practices that no longer exist.  The majority sided with Shelby County, stating that the practice of preclearance was no longer required based on the fact that Congress did not utilize current data to fashion the coverage formula.  Chief Justice Roberts reasoned that the reenacted VRA based on data from four decades ago ignores the current election climate and has no logical relation to present circumstances.  Congress has failed to “justify the current burdens” with a record demonstrating the “current needs” of the preclearance requirement and ruled Section 5 unconstitutional.

The dissent, authored by Justice Ginsburg, took umbrage with the idea that the political climate has changed so much in the last forty years as to render Section 5 unnecessary.  “Voting discrimination still exists, and no one doubts that,” she wrote.  Ginsburg reasoned that the eradication of Section 5 terminates the remedy best suited to protect against voter discrimination.  Furthermore, the dissent cites the records amassed during the reenactment of the legislation which show ample instances of voter discrimination.  “On that score, the record before Congress was huge. In fact, Congress found there were more DOJ objections between 1982 and 2004 (626) than there were between 1965 and the 1982.”  The dissent argues that the increase in voting changes blocked by the preclearance requirement is sufficient evidence to show that the state of voting rights in covered jurisdictions would have been significantly different absent the remedy offered in Section 5.  These examples show that “racial discrimination in covered jurisdictions remains serious and pervasive.”

In particular, opponents of the bill were concerned that the bill would unfairly burden racial minorities in order to prevent voter fraud that never existed.

The holding in Shelby County v. Holder opened the floodgates for states that were subject to the preclearance requirement to submit new voter laws without interference from the Federal Government.  The North Carolina legislature seized this opportunity to pass new election laws in the form of House Bill 589.  The controversial bill passed with a vote of 73-41.  Key provisions of the bill require voters to present photo ID at the polls and shortened the early voting period by a week.  The bill also ends same day voter registration and eliminates civics programs in high school that encourage students to register to vote before their eighteenth birthday.  Proponents of the bill argued that the reforms would help protect the integrity of the election process in North Carolina and eliminate voter fraud.  House Speaker Thom Tillis stated that “…over seventy percent of North Carolina residents support the implementation of a voter ID measure, this common sense legislation responds to the majority of citizens who desire a fair and accountable election system.”

Not all legislators bought into the lofty aspirations of the bill.  Democrats have argued for years that the voter restriction laws are not about voter integrity but instead cause the disenfranchisement of a class of voters, primarily those who tend to vote democratic.  In particular, opponents of the bill were concerned that the bill would unfairly burden racial minorities in order to prevent voter fraud that never existed.

Even if there were 10,000 cases of voter fraud in North Carolina last year (many more than the actual documented number) and the new law prevented all of them, it would be at the cost of keeping nearly 300,000 North Carolinians from participating in same day voting or casting ballots based on lack of proper identification.

A recent study released by Dartmouth University seems to confirm these fears.  The study used data that was compiled based off of publicly available voting data  and sought to answer whether the voter law would have a disproportionate effect on one racial group or if the new laws were race neutral.  The study (PDF) concludes that:

“Specifically, we find that in presidential elections the state’s black early voters have traditionally cast their ballots disproportionately often in the first week of early voting, a week eliminated by VIVA; that blacks disproportionately have registered to vote during North Carolina’s early voting period and in the run-up to Election Day, something now prohibited by VIVA; that VIVA’s photo identification provision falls disproportionately on registered blacks in North Carolina; that the special identification dispensation for North Carolina voters who are at least 70 years old disproportionately benefits white voters; and, that prior to the implementation of VIVA young blacks were disproportionately more likely than whites to avail themselves of the opportunity to preregister to vote.”

The Department of Justice and the ACLU also conducted a study on the bill in which they concluded that the restrictions will impact millions of North Carolina residents.  The study reports that in 2012, nearly 2.5 million North Carolinians voted early, 152,000 used same-day voter registration and 138,000 voters lacked government issued ID.

The evidence of voter fraud in North Carolina is limited.  In a recent report, the North Carolina Election board stated that “… it had found 35,765 people who voted in the state in 2012 and whose names and dates of birth match those of voters in other states. The board said it also found 765 North Carolinians who voted in 2012 and whose names, birthdates, and last four digits of their Social Security number match those of people in other states.”  This data would seemingly bolster the position of the proponents of a voter identification law who theorize that voter fraud is a rampant problem in North Carolina.

However, these recent findings did not alarm noted statistician and political scientist Michael McDonald.  According to McDonald, it is not uncommon for people to share the same name and birthdate.  Furthermore, there is no indication that this data is a result of double voting.  This does not explain the 765 cases in which the last four digits of the voters’ Social Security number also matched someone in another state.  McDonald opined that many of there are plenty of explanations for these statistics beyond voter fraud.  For example, South Carolina recently listed over 900 residents who had voted that were dead at the time of the election according to their Social Security information.  After further investigation, it was found that nearly half of these cases were a result of clerical errors by poll workers.

Even if there were 10,000 cases of voter fraud in North Carolina last year (many more than the actual documented number) and the new law prevented all of them, it would be at the cost of keeping nearly 300,000 North Carolinians from participating in same day voting or casting ballots based on lack of proper identification.  In the face of this data, there is no compelling reason for the existence of these voter restrictions in North Carolina.  Instead of protecting the integrity of the electoral process, thousands of voters will be turned away from the polls.  In order to protect the democratic right of casting a ballot in an election, the legislature must repeal this discriminatory law.

Winston Kirby is a 3L at Campbell University School of Law. He can be reached by email at w_*********@em***.edu