A judge in Winston-Salem, North Carolina, ruled Monday night that the state’s strict new voting law is constitutional, delivering a major win for conservatives who have sought to tighten laws across the country, and dealing a blow to efforts to stop those laws.
Judge Thomas Schroeder’s opinion—included in a massive, 485-page ruling—upheld the full swath of HB 589. Passed by the Republican-dominated General Assembly in 2013, the law changed a slew of North Carolina’s voting rules, including reducing early voting, eliminating same-day registration, banning out-of-precinct voting, and ending pre-registration for 16-year-olds. Perhaps most prominently, the bill instituted a requirement that voters show photo ID to cast a ballot.
Legislators and other proponents of the bill argued that the voter-ID law was a commonsense measure, and that it and other changes were needed to prevent fraudulent voting. The law’s opponents, meanwhile, pointed that there were practically no documented cases of voter fraud in the state, and argued that the changes would disproportionately affect poor and minority voters in the Old North State—voters who are more likely to vote Democratic, which they argued was not a coincidence. Much of the trial focused on whether there was real evidence of fraud, and whether the law actually disadvantages minorities. Both sides brought a barrage of experts to back their view.
Schroeder, a George W. Bush appointee, ruled that while North Carolina had been on the progressive end of the spectrum of voting, the new rules were simply retrenchment and were constitutional. He said the plaintiff—a group that included the North Carolina NAACP, the Justice Department, and others—“failed to show that such disparities will have materially adverse effects on the ability of minority voters to cast a ballot and effectively exercise the electoral franchise.”
Schroeder’s decision to uphold the law was not unexpected. The plaintiffs have already vowed to appeal the decision to a federal appeals court.
The trial was held in two phases. The first, which began last July, focused on the early voting, out-of-precinct voting, and same-day registration portions. Because of last-minute changes to the voter-ID section of the law—legislators created a process by which voters could cast a ballot by swearing they had a “reasonable impediment” to getting a photo ID—a trial about the ID requirement was not held until January. Schroeder upheld both halves of the law in his ruling.
The voting law was passed shortly after the Supreme Court’s decision in Shelby County v. Holder, which struck down a crucial section of the Voting Rights Act that required certain states and jurisdictions with a history of racial discrimination to receive “pre-clearance” from the Justice Department before changing their voting laws. While Republicans had been considering changes already, the ruling allowed them to expand their ambition. “Now we can go with the full bill,” Senator Tom Apodaca, chairman of the rules committee, said at the time.
With the Voting Rights Act in the background, the fight over HB 589 became a referendum on the past, and whether the new rules were—as the plaintiffs charged—a revival of Jim Crow rules like literacy tests, intended to weed out black voters.
“This is our Selma,” said the Reverend William Barber II, the head of the state NAACP and an organizer of “Moral Mondays,” a series of huge demonstrations in Raleigh and elsewhere that have gone on since Republicans took control of the state and began passing a series of very conservative reforms.
The defendants disagreed. “The history of North Carolina is not on trial here,” a lawyer for Governor Pat McCrory said at the trial.
In the end, Schroeder sided with the defendants. “There is significant, shameful past discrimination. In North Carolina's recent history, however, certainly for the last quarter century, there is little official discrimination to consider,” he wrote.
Once the central story in the Old North State’s political battle—the state has become hyperpolarized in the years since Republicans won control of the General Assembly in 2010 and the governorship in 2012—the voting-rights story has been pushed to the side more recently by the even-hotter controversy over HB2, the recently enacted law that bans transgender bathroom accommodation in state facilities and preempts city rules on transgender accommodations, LGBT non-discrimination, and living wages. In the hours before Schroeder’s ruling was revealed on Monday, Moral Monday protestors were demonstrating in the streets of Raleigh against HB2.
During the voting-rights trial, the defendants presented evidence that the tools that had been eliminated were disproportionately used by black voters. But the defendants countered by showing that black turnout in 2014, when all but the voter-ID portion was in effect, actually increased over the previous midterm elections, a jump the plaintiffs attributed to a contested Senate election and grassroots organizing after the law. The defendants also argued that the law couldn’t be unconstitutional because several other states offer similarly few accommodations.
But North Carolina’s rollback is one of the most dramatic in the nation, and if it stands, it’s expected to serve as a model for other conservative legislatures to pass similarly strict laws. That’s one reason both sides have put so much emphasis on the fight in North Carolina. The outlook for the plaintiffs has always seemed somewhat more promising at the circuit court, where they would argue before a panel of three judges. (That court granted them a preliminary injunction to block certain provisions at an earlier stage in the process.) Many observers expect that regardless of the result at the appeals court, the case will end up at the Supreme Court. The death of Justice Antonin Scalia—and uncertainty over whether Merrick Garland, President Obama’s pick for the vacancy, will be confirmed—makes it tough to predict the result there.
The plaintiffs hope to get an appeal in process in time to get a ruling ahead of November’s election, or at least to have the law put on hold. It’s not clear whether the courts can and will move fast enough. That means that while HB 589 may have a lasting national legacy, it might also play a role in this year’s election. McCrory is in a tight race for reelection against state Attorney General Roy Cooper, a Democrat. Meanwhile, the chaotic Republican race has put the Old North State in play in the presidential race as well. The state voted for Mitt Romney in 2012, but demographic changes make North Carolina a potential swing state. And even if the law causes only a small variation in turnout, that could have a big impact on the result: When Barack Obama carried North Carolina in 2008, he did so by just 0.32 percent.