The Past Goes On Trial in North Carolina

A federal court considers whether ballot laws deliberately attempted to suppress the black vote.

“The history of North Carolina is not on trial here,” Butch Bowers, a lawyer for Governor Pat McCrory, told a court in Winston-Salem on Monday.

Pace Bowers, that’s precisely what’s on trial over the next two weeks. A group of plaintiffs—including the Justice Department, NAACP, and League of Women Voters—are suing the state over new voting laws implemented in 2013, saying that they represent an attempt to suppress the minority vote.

The new laws were passed shortly after the Supreme Court struck down a section of the Voting Rights Act that required some jurisdictions to seek approval from the federal government before altering voting laws. All of those jurisdictions had been found to have voting practices that disenfranchised minorities; most of them were in the South.

The new rules required a photo ID to vote; reduced early voting; ended same-day voter registration; banned the practice of casting ballots out of precinct; and ended pre-registration for teens. (The General Assembly later amended the photo-ID law, which had been the strictest in the nation, and it’s not being considered in the trial.)

In many ways, this case is similar to other ones around the country over the past few years. There’s little serious dispute that these tools were more heavily used by black voters than white ones. The arguments have been rehearsed over and over: Minority voters tend to be poorer and less educated; it’s more difficult for them to take time to wait in long polling lines, making early voting necessary; they’re more likely to miss a registration deadline or changes in voting spots.

But McCrory and his fellow Republicans in the legislature argue that the rules apply equally to everyone in the state, and that they’re necessary to guarantee the sanctity of the vote. The argument offers an appealing simplicity, but the problem is that repeated efforts have failed to find evidence of widespread, or even somewhat common, voter fraud. As a result, the laws seem to be solving a problem that doesn’t exist—while going out of their way to make it more difficult for people, and especially people of color, to vote.

But this case is different from other voting-rights cases for three reasons. First, it comes amidst a sweeping national debate about race, one that began with Michael Brown’s death in Ferguson and has continued through the massacre of nine black people in a Charleston church and South Carolina’s subsequent decision to take down the Confederate battle flag from its capitol grounds. In contrast to Bowers, the plaintiffs very much want to make this case about history. The NAACP’s slogan during the lead-up to the trial has been, “This is our Selma.” Disparate rates of voting, due to legal obstacles, were a central element of the pre-civil-rights South. The plaintiffs argue that North Carolina has picked up right where it left off in 1965 when the Voting Rights Act was enacted.

Second, the case is likely to have ripple effects nationwide. While members of Congress have discussed tweaking the Voting Rights Act to reinstitute preclearance in accordance with the Supreme Court ruling, there’s been no real progress, and that seems unlikely to change soon. A decision is “likely to happen and get a result faster than whatever Congress is able to do,” said Michael Gerhardt, the Samuel Ashe distinguished professor of law at the University of North Carolina. “As a result, if there are people who have been effectively disenfranchised, or voting blocs have been diluted, this remains their best chance.” On the other hand, if the plaintiffs fail, it could create more pressure to act on Capitol Hill, on the basis that the courts had failed to protect voting rights.

Third, North Carolina is a politically volatile state, unlike some of the other sites for recent voting-rights case, like solid-red Texas. The state voted for Barack Obama in 2008, but Republicans have since captured the governor’s mansion and the legislature and enacted a long list of conservative reforms. (Obama lost by about two points in 2012.) Some of those have been straightforward priorities for the right, like overhauling taxes and expanding gun rights, but others have notably involved race. The state’s decision to reduce unemployment benefits and reject Medicaid expansion under the Affordable Care Act impact poorer, minority residents of the Old North State. Republicans also repealed the Racial Justice Act, a unique law allowing convicted criminals to appeal their sentences by pointing to racial disparities.

In response, a huge grassroots movement arose, centered around protests called “Moral Mondays.” They were led by the Reverend William Barber, the outspoken and sometimes controversial head of the state NAACP. More than anything, the protesters have succeeded in showing the deep divisions in North Carolina. There’s a substantial and impassioned bloc of voters opposed to the conservative changes, but they’re also clearly a minority. And thanks to redistricting, it’s hard to imagine Democrats retaking control in Raleigh any time in the immediate future. The Moral Monday crowd points to the various reforms as a pattern of changes that target black citizens.

The Justice Department wants the federal district judge in the case, Thomas Schroeder, to rule not only that the effect of North Carolina’s new voting law is discriminatory, but that its intent is so clearly discriminatory that “preclearance” rules, requiring the state to seek federal approval for voting laws, should be reimposed after being removed by the Supreme Court decision.

That will be a tall order, Gerhardt warns. It’s not sufficient simply for plaintiffs to show that the laws have a disproportionate impact on minorities.

“It’s hard to show a systematic or deliberate attempt to suppress votes based on race,” he said. “Their best hope is to throw a Hail Mary pass and make the claim, which outside the courtroom is not silly, but inside the courtroom is going to be much harder to prove.”

A second option would be for Schroeder to find that while the law is not a deliberate attempt to discriminate based on race, it still violates the Voting Rights Act by abridging minority voters’ ability to vote. In June, the Supreme Court upheld federal housing laws that ban practices that have a “disparate impact” based on race, even when there’s no intent to discriminate. That could offer some precedent in this case, even though it concerns a different statute, Gerhardt said.

The plaintiffs may face a tough battle with Schroeder, a conservative George W. Bush appointee who will decide the case, with no jury involved. They initially requested a preliminary injunction against the new laws prior to the 2014 election. Schroeder rejected the request, but the Fourth Circuit Court of Appeals reversed his decision. Then the Supreme Court reversed the circuit court, and while no reason was given, it’s speculated that the justices were wary of upending the election process so close to voting day. Schroeder, however, is unlikely to have the final word. Regardless of the outcome, the loser will likely appeal to the circuit court, and the Supreme Court may eventually decide to consider the case.

The 2014 election is likely to be central in the trial, and that could present a challenge for the plaintiffs. That’s because in the first cycle under the new rules, African American voting rates actually increased versus the last midterm election, in 2010. For advocates of the changes, that’s proof enough that the law doesn’t hurt black turnout. The plaintiffs reject that idea, noting that there was a close election for U.S. Senate and that civil-rights groups pushed particularly hard for registration and voting following the passage of the laws. They also point to some 11,000 who registered in the last 25 days before the election—voters who would have been able to cast a ballot under the old rules, but not the new ones.

One way or another, then, the result in the case is likely to be about history. The question is whether it’s recent history or more distant events that decide the outcome.