Is North Carolina's Strict Voter-ID Law Constitutional?

A judge began hearing a second challenge to the state’s restrictive new voting laws, passed in the wake of the Supreme Court’s Shelby County decision.

Lawyers and advocates were back in a courtroom in Winston-Salem, North Carolina, on Monday, for a second challenge to the state’s strict new voting laws. A group of plaintiffs, led by the NAACP and the Department of Justice, is seeking to overturn a new rule, which is set to take effect in March’s primaries, requiring voters to present a photo ID before voting.

The voter-ID law was one of several major changes made by Republicans who control the Old North State’s government, in a 2013 law passed shortly after the Supreme Court struck down a clause in the Voting Rights Act that required some states to seek approval of changes to voting laws from the Justice Department. In addition to requiring a photo ID to vote, the new rules reduced early voting; ended same-day voter registration; banned the practice of casting ballots out of precinct; and ended pre-registration for teens. Proponents said the laws were essential to guarantee the integrity of the state’s elections.

A group of plaintiffs sued the state, alleging that the changes would suppress minority votes and that they represented the return of Jim Crow to the South. In July, federal district-court Judge Thomas Schroeder heard a challenge to some of those provisions, but not to the voter-ID law.

The voter-ID law is one of the strictest in the nation, narrowly limiting the number of acceptable forms of identification, but it is slightly looser than it was to begin with. In June 2015, with the lawsuit drawing near, the general assembly suddenly voted to slightly loosen the restrictions, allowing residents to file affidavits swearing they had a “reasonable impediment” to getting one of the approved forms of ID. They would also have to present alternate forms of identification. As a result of the change, the voter-ID law, which was not scheduled to go into effect until this year, was not considered during the summer 2015 trial.

During a conference call to discuss the changes last week, plaintiffs insisted that the conditions for votes being counted were at once too vague, leaving too much discretion to local elections officials, and too restrictive.

“The right to vote is supposed to be constitutional, not confusing,” said the Reverend William Barber, who is president of the state NAACP and also the leader of the“Moral Monday” protests in Raleigh. “North Carolina’s restrictive photo-ID law remains an immoral and unconstitutional burden on voters that creates two unequal tiers of voters. We are prepared to challenge this modern form of Jim Crow in the courts even as we continue our grassroots work.” In defense of the state, lawyers argue that the plaintiffs have presented “no evidence that any single voter will be unable to vote under the photo ID law.”

The two lawsuits over North Carolina’s voting laws are widely considered a bellwether for the future of voting. Many states, typically those governed by Republicans, passed laws or began considering legislation that tightens voting regulations after the Supreme Court’s 2013 decision in Shelby County v. Holder. Black voters, who are often disproportionately affected by such restrictions, tend to vote overwhelmingly Democratic. If the plaintiffs succeed, it’s a sign that the laws are vulnerable to challenge. If the defendants prevail, however, other states are expected to adopt similarly sweeping regulations.

Critics of voter-ID laws point to the minuscule or nonexistent number of actual cases of voter fraud, and point to evidence that laws like North Carolina’s disproportionately affect minorities and young people. The fact that such laws were banned under the VRA is proof they’re racially discriminatory, they say—just part of a lineage of Southern states passing laws, like literacy tests, that keep blacks from voting under the guise of defending the sanctity of the vote. The law’s backers counter that racial discrimination in voting is a thing of the past, and that while there may be some effect on minorities, the burden of obtaining an ID is minor and worth the trouble, if it keeps elections untainted.

Schroeder is hearing the case without a jury—he alone will make the decision. Because the judge is a conservative George W. Bush appointee, there’s a vague sense that he’s likely to rule against the plaintiffs. His refusal to grant a preliminary injunction that would have suspended the law taking effect until after the March primary has been taken as a bad sign for the law’s challengers. Schroeder has not yet handed down a decision in the first case, and there’s no timeline for when he might. Whichever way he rules, his decisions in both cases are likely to be appealed to the circuit court.

One key difference between the July trial and the current one, as The News and Observer notes, is the evidence at hand. In the first trial, experts for both sides scrutinized data from the 2014 election, for which the other provisions of the law applied. Defense experts argued that strong black voter turnout proved the law was not discriminatory, while the plaintiffs’ witnesses said that turnout was a result of angry voters but didn’t obviate the discriminatory effects. This time around, however, Schroeder won’t have any direct data to work with, since the voter-ID requirement is just now becoming effective.