June 17, 2016

PLF files brief in North Carolina voter ID case

By Chris Kieser Attorney

In 2013, on the heels of the Supreme Court’s Shelby County decision that ended federal preclearance of voting laws, North Carolina enacted an omnibus election reform bill that set off a partisan firestorm in the state and on editorial pages nationwide. On top of the much-discussed voter identification requirement, the law repealed same-day registration during the early-voting period and prohibited the counting of ballots cast in a voter’s incorrect precinct, while reducing early voting from seventeen to ten days. While the legislation included a bipartisan amendment that kept aggregate early-voting hours the same (forcing counties to open up more sites or keep existing sites open longer), opponents still claimed it would hurt minority voting strength because black and Hispanic voters were more likely to lack a qualifying ID and used the repealed voting accommodations more often than white voters.

As North Carolina is no longer required to submit its election laws to federal authorities, the Department of Justice’s only remedy was to sue under Section 2 of the Voting Rights Act. That section prohibits any voting change that “results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color.” To prevail, plaintiffs must show that “the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by [a protected class] in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” By contrast, Section 5 – made ineffective by Shelby County – required states going through preclearance to prove that the law would not “lead to a retrogression” in the position of minority voters.

The plaintiffs in this case contend that the challenged practices violate Section 2 because they interact with social conditions, such as lower income levels, to make it harder for minorities to vote. The Fifth and Sixth Circuits have accepted this standard for a Section 2 claim, holding that the disparate impact of new voting laws combined with socioeconomic disparities is enough to prevail. Nevertheless, the district court here concluded that none of the provisions violated Section 2. Importantly, the judge noted that with the challenged practices (other than voter ID) in effect in 2014, turnout among minority voters actually increased from 2010 by more than it did among white voters. Taking all of the evidence into account, the district court held that, despite disparate usage of repealed accommodations, minority voters had an equal opportunity to participate in the political process under the new law.

In our amicus brief on appeal to the Fourth Circuit, PLF – joined by our friends at the Center for Equal Opportunity and Project 21 – argues that the court should reject the disparate impact approach to Section 2. We contend that comparisons to the old law are relevant only under the “non-retrogression” analysis used under Section 5, not under Section 2’s “equality of opportunity standard. Under Section 2, courts should assess the state’s current electoral scheme to determine whether it permits equal participation among the races. In other words, the relevant question is not whether ten days of early voting might be worse than seventeen, but whether ten days of early voting is enough to provide equal opportunity.

Expansion of disparate impact and the return of retrogression would have significant consequences. Indeed, this has already led to absurd results, like Ohio being found in violation of Section 2 for reducing early voting from 35 to 28 days. Only a perverse interpretation of the Voting Rights Act would have Ohio in violation for maintaining 28 days of early voting while New York, which offers no early voting at all, is not in violation. Such a “one way ratchet,” which allows states to liberalize voting rules but not to scale back if they decide they have gone too far, actually discourages states from passing voting accommodations in the first place. And basing liability on racially disparate impact alone encourages state legislatures to make race-based decisions.  This is precisely what Section 2 and the Equal Protection Clause should prevent.

Oral argument in the Fourth Circuit will be on June 21, with a decision expected shortly thereafter. A petition for certiorari to the Supreme Court of the United States is likely regardless of the result.

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