“The Progressive South”
For years North Carolina has styled itself as the face of the New South aka the Progressive South. In fact, until 2013 North Carolina had some of the best voting laws on the books that provided the greatest number of opportunities for citizens to vote- putting visions of water hoses and reading tests from the woebegone days of the not so distant past. The Progressive South is not defined by the waving of the Confederate flag, extreme evangelicals, racism, conservatism, poor education, and good ‘ol boy rednecks. The Progressive South is far too politely southern and open minded for all that.
Or so we thought.
For the first time in more than 100 years the Governor and both houses of the state legislature are controlled by the Republican party. Not Carolina, true to its claim of progressivism has been a “purple” state tending toward “blue” in recent decades unlike the rest of the states in the south. Although the state’s electoral votes went to President Obama in 2008, in 2012 they went to Mitt Romney. 2012 also saw the state’s rejection of Democratic Senator Kay Hagan for Republican Tom Tillis and the election of Republican Pat McCrory over Democratic lieutenant governor Walter Dalton. The people of North Carolina spoke that year and that was followed with a national routing of the Democrats in the 2014 which brought both houses of the US Congress under control of the Republicans.
Any party doing this well both at the state and national level would call this a mandate on their policies, a stance they took full advantage of in every “red” state in the country. North Carolina has been seeking the standard for this mandate since the election of Pat McCrory.
How SCOTUS Set the Stage
On June 25, 2013, the US Supreme Court gutted the Voting Rights Act of 1965 by removing the protection of pre-clearance from section 4. Section 4 details which jurisdictions are required to get pre-clearance from the Attorney General regarding their election laws, thus making section 5 of the act irrelevant. There are 9 states and a number of counties that were previously subjected to pre-clearance. (40 counties in North Carolina required pre-clearance.) Interestingly, SCOTUS did not rule on the constitutionality of section 5, they only deemed section 4 unconstitutional in Shelby County v Holder. However, under sections 2 and 3; if a state is found to enact laws that are intentionally discriminatory, they can be “bailed in” meaning the state will again be subjected to oversight as outlined by section 5 of the act. In 1982 Congress, with bipartisan support, amended the Voting Rights Act to include cases where the effect of electoral laws were discriminatory whether there was intent or not. Ronald Reagan signed the amendment.
The Voting Rights Act of 1965 was repeatedly reauthorized by Congress. It was reauthorized in 1970 for 5 years, 7 years in 1975, 25 years in 1982 and again in 2006 for 25 years. In the majority opinion in 2013 that nullified section 4, Chief Justice Roberts noted the Congress could still impose oversight on states that it deemed still needed such oversight, but anyone who has been paying attention knows that is unlikely to happen any time soon. The contention was that when the act was reauthorized in 2006, data from 1975 was being used to determine which states and counties still needed to be under Federal oversight. The majority opinion in this case stated that the country changed and that racial discrimination is no longer the issue it once was. Essentially they used “We have a black president, racism is dead,” argument we have heard from Fox News and others ad nauseum.
North Carolina, took advantage of the decision with more gusto than the rest of the country, enacting the harshest voting law in the country. The keystone of this law was the voter ID provision which required that voters produce an unexpired license, state issued ID, passport or military ID. This provision was recently softened, but lets review the law first, before I get to that.
North Carolina House Bill 589- Voter Information Verification Act (VIVA)
Since 2013 there have been numerous scandals regarding the implementation of the new rules. (Not all requirements went into effect at the same time.) For example in 2014 there was an attempt to close the polling station on the campus of Appalachian State University in Watauga County. Watauga County is primarily Republican, but Boone (where ASU is located) and the University itself are Democratic leaning. The state sued to have the polling location closed, then a stay was granted and county board of election officials were left in confusion as were the students on campus. Officials opted to leave the location open as the question had not been settled in time. There was similar controversy on the campus of North Carolina State University in Wake County that required judicial interference as well. An early version of VIVA contained a provision that would take away the tax credit of parents whose college aged children voted outside of their precinct by voting where their schools were located. This provision was dropped, but efforts were still made to limit the impact of student votes by closing polling locations though its made moot by no longer allowing out of precinct voting.
Shortly after VIVA was signed into law on August 12, 2013, less than two months after SCOTUS ruled that section 4 of the Voting Rights Act was no longer valid, the North Carolina NAACP and the ACLU sued the state over the Constitutionality VIVA. The NC NAACP (joined by the Justice Department and other advocacy groups) assert that the law disproportionately affected minorities and that it violates the 14th and 15th Amendments and the Voting Rights Act of 1965. The state contends that the law was enacted to restore confidence in the voting process, hence the name of the law the “Voter Identification Verification Act”.
Governor McCrory has been quoted, “The need for photo ID has been questioned by those who say voter fraud is not a problem in North Carolina. However, without the higher level of identification a photograph provides, is it possible to know?” Adding, “Just because you haven’t been robbed doesn’t mean you shouldn’t lock your doors at night.”
This contention is extremely problematic. The purpose of the law is to protect people from something they don’t even know they should be afraid of. I know that people in my city have been robbed, so I lock my doors at night. I have only been made aware of one legitimate case of in person voter fraud in this state which was ironically allegedly perpetrated by a white Republican man. This law is a fix for something that isn’t a problem.
“You could ask why are we all of a sudden passing voter ID laws, one month after the Supreme Court struck down certain provisions of the Voting Rights Act, and that’s kind of the big elephant in the room.” Wake Forest professor of Constitutional Law, Eugene Mazo said.
Shortly after the law was signed the NC NAACP and the Justice Department sued the state over the voter ID provision of the law deeming it discriminatory. Two other lawsuits were filed against the state at this time as well. A hearing date was granted immediately, but it was to hear the merits of the cases and decide if they would go to trial. The plaintiffs wanted the trial to start before the November 2014 election when many of the provisions of the law were set to go into effect. (The voter ID provision was set to go into effect in 2016). However, Magistrate Judge Joi Elizabeth Peake who ruled at the hearing, stated that it was possible for an injunction to occur before the 2014 election. The trial date was set for 2015, with discovery to be complete in February of that year.
McCrory spent $300,000 on attorney Butch Bowers and the legislature spent an addition $1.4 million on outside council to defend this legislation. This does not include any money spent on outside council for the current trial in July 2015. AG Roy Cooper is a part of the state’s legal defense team along side several members of McCrory’s outside council, but was not a part of the original defense team due to a perceived conflict of interest. Roy Cooper announced in 2015 his bid for governor of North Carolina. He has stated that he will do his job and defend the state in this case. This has put him in the uncomfortable position of defending a law he initially objected to publicly.
In the beginning months of 2014 the DMV started offering free state IDs that could be used to vote with. The presumption is that this would negate the perceived “poll tax” of the $20 driver’s license fee that the DMV assesses. This however, did not fix the problem as the supporting documents are often costly and difficult to obtain for poor and elderly voters.
In February 2014 the plaintiffs took the state back to court arguing that they had not provided full discovery. They contended that they had only been documents that were press releases that were easily obtained by the public. Among the documents requested they were subpoenaing the communications of 13 legislators. The judge ruled that the state needed to provide documents relating to the implementation of the law, but she held off ruling if the legislators needed to copy with the subpoenas. Unfortunately this game lasted for months. The state dragged its feet and the elections board failed to produce any documents for over a month. A judge once again had to rule that the lawyers needed to work out and adhere to a blueprint for completing discovery. The 13 legislators were at this point ordered to comply with the subpoenas. The judge allowed that some material was privileged, but that the state needed to comply.
In May 2014, an injunction was filed to stop VIVA from going into effect until after the 2014 election. It was ultimately denied, but the case was still scheduled to go to trial in July 2015. The NAACP of course, appealed the ruling. Initially, in a 2-1 decision the court stayed the elimination of same day registration and out of precinct voting. SCOTUS ultimately overruled the lower court ruling reinstating the two provisions for the November mid term elections. This unfortunately left voters with three days to register to vote before the deadline.
Fast forward to June 2015. The legislature quickly proposed and voted for a law lessening the voter ID restrictions prior to the start of the Federal trial in the District court in Winston-Salem. It allowed voters who were unable to produce an ID on the list of acceptable IDs to sign an affidavit. Again, the timing of this suggests that after the nearly $2 million spent on litigating this issue the state realized that the voter ID provision would likely show that the state was violating the Voting Rights Act and would once again find itself subject to pre-clearance.
This long drawn out process has left voters angry and distrustful of our government here in North Carolina. It adds insult to injury with many civil rights leaders and citizens who remember the dark days of North Carolina prior to the passing of the Voting Rights Act. The state had seemed to make strides over the decades, but this law has once again brought to the forefront the lie that is the Progressive South.
Kelly is a 37 year old graduate student living in Greensboro, North Carolina and UniteWomen.org Legislative Research Director for North Carolina. She is currently pursuing her M.A. in Communication Studies at the University of North Carolina at Greensboro. She and her husband are expecting their first child in November.
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