[EL] Breaking and Analysis: Federal District Court Upholds Restrictive NC Voting Law in 485-Page Opinion
Rick Hasen
rhasen at law.uci.edu
Mon Apr 25 20:29:00 PDT 2016
Breaking and Analysis: Federal District Court Upholds Restrictive NC
Voting Law in 485-Page Opinion <http://electionlawblog.org/?p=82224>
Posted onApril 25, 2016 6:16 pm
<http://electionlawblog.org/?p=82224>byRick Hasen
<http://electionlawblog.org/?author=3>
Federal district court judge Thomas Schroeder has issuedthis 485-page
opinion
<http://electionlawblog.org/wp-content/uploads/nc-voting.pdf>considering
constitutional and Voting Rights Act challenges to North Carolina’s 2013
restrictive voting law (which I have discussed in a number of places
including this Harvard Law Review forum piece, Race or Party?: How
Courts Should Think About Republican Efforts to Make it Harder to Vote
in North Carolina and Elsewhere
<http://harvardlawreview.org/2014/01/race-or-party-how-courts-should-think-about-republican-efforts-to-make-it-harder-to-vote-in-north-carolina-and-elsewhere/>).
This is a careful, erudite, yet controversial opinion which will almost
certainly be appealed to the United States Court of Appeals for the 4th
Circuit, which could well reverse parts of it, and then potentially to
the United States Supreme Court, where the Court could well deadlock 4-4
(leaving any 4th Circuit ruling in place). And all of these appeals will
have to happen in short order for it to affect how the 2016 elections
take place underthe Purcell principle. <http://ssrn.com/abstract=2545676>
Here is my overall impression having read/skimmed the 485 pages: the
judge does a very thorough job going through the evidence of the law’s
burdens on voters and the state’s interest in passing the law. The judge
goes into the evidence in great detail, but the opinion reads like
someone who is very, very skeptical of the plaintiffs’ arguments, and
very forgiving in terms of the state’s interests. The aspect of the
opinion I found particularly weak is his discussion of whether the state
had good reasons for the voting cutbacks, which are the greatest set of
election rollbacks in a single bill that i know of at least since the
passage of the 1965 Voting Rights Act. It is pretty clear that the North
Carolina voting law was partisan legislation enacted to help
Republicans; but the judge barely discusses the role of partisanship,
except to note (on page 468) partisan by /Democrats/in an earlier bill
to allow out-of-precinct voting. And part of this is exacerbated by the
“race or party” question. The judge has to look at this through the lens
of race, at least for Voting Rights Act purposes. A better approach
would be to say (as I argue in the /Harvard/piece and elsewhere), that
when a state makes it harder for voters to vote, the question should be
whether the state has a good reason for burdening voters. And that’s
where the tenuousness of many of the state’s arguments come in.
The chances on appeal may well depend upon the 4th Circuit panel draw.
Republicans and Democrats tend to view these facts through different
lenses, and judges are no different—not because they want to vote to
help “their party,” but because they are predisposed to see facts in
different ways. Nonetheless, even with a Democratic-leaning draw, the
judge made a number of factual findings adverse to the plaintiffs which
are supposed to get great deference by the appellate courts.
If the case gets to the Supreme Court, we could well see the same
dynamics in play.
The court’s key conclusion about the nature of the claims comes near the
end of the case:
In short, North Carolina has provided legitimate State interests for
its voter-ID requirement and electoral system that provides
registration all year long up to twenty-five days before an
election, absentee voting for up to sixty days before an election,
ten days of early voting at extended hours convenient for workers
that includes one Sunday and two Saturdays, and Election Day voting.
Plaintiffs oppose this system because they preferred one that they
say was even more convenient – which they used disproportionately
during certain elections – and point to some fraction of voters who
did not vote or register. Plaintiffs’ contention that such voters
did not do so because of vestiges of historical official
discrimination is rebutted by the facts. There is strong evidence
that some other reason is at play for the failure of these persons
to register and/or vote. The unprecedented gains by African
Americans in registration and turnout, both during and even in 2014
after SL 2013-381, bolster this conclusion. While the consideration
is clearly local and practical in nature, based on North Carolina’s
unique facts, it would no doubt bear relevance if North Carolina
were seeking to return to an electoral system that was not in the
mainstream of other States. It is not.
For all these reasons, Plaintiffs have failed to demonstrate that
Defendants have violated § 2 of the VRA or the Fourteenth,
Fifteenth, or Twenty-Sixth Amendments to the United States Constitution.
Here are some additional thoughts about the judge’s opinion.
1. The judge engaged in extensive fact finding about the extent of the
burden of the voter identification law, especially as it has been
“softened” by the “reasonable impediment” exemption from the law.
The court spends dozens of pages discussing the efforts the state
has made to roll out and educate about the voter identification law,
as well as how the reasonable impediment law would allow certain
voters to vote without providing voter identification. The judge
concludes that although some voters faced burdens getting
identification under the state’s rules, not that many voters would
face these burdens (and many fewer people lack the id than the
plaintiffs claimed), and many of the burdens that such voters face
would be alleviated by being able to vote under the reasonable
impediment exemption. These factual findings increase greatly the
chances of the voter identification aspect of the law being upheld
on appeal, and certainly they would alleviate the concerns of the
four more conservative Supreme Court justices. It turns out that on
the ground the reasonable impediment exemptions and similar
exemptions have not worked as well and as evenly as supporters of
the laws say. See my Softening Voter ID Laws Through Litigation: Is
it Enough?,/Wisconsin Law Review Forward/(forthcoming 2016) (draft
available <http://electionlawblog.org/?p=80636>). It is not clear to
me if the case would allow for a follow up suit based on how the
reasonable impediment exemption is applying in practice.
2. The judge also looked at evidence of North Carolina’s other
rollbacks, such as the cutback in early voting, finding it did not
decrease turnout, either generally or among racial minorities. (“In
sum, the court has evaluated all of the evidence surrounding the
impact resulting from the change in the early-voting schedule. In
light of the same-hours requirement, the evidence does not
demonstrate that the new early-voting schedule results in a reduced
opportunity to vote or imposes a burden on voters. Nor does the
evidence show that the new schedule disparately and negatively
impacts the political participation of African Americans, Hispanics,
or young voters.”) Findings like this are subject to deference on
appeal. (The judge makes similar findings about the effects of the
elimination of same day registration, though concedes there may be a
weak effect. He made a more complex finding as to the elimination of
pre-registration for 16 and 17 year olds: “In sum, the evidence
shows that pre-registration increases youth turnout. However,
although African Americans used pre-registration disproportionately
compared to whites in North Carolina, the evidence also establishes
that pre-registration does not disproportionately benefit one race
over the other. (Pl. Ex. 235 at 24.) In addition, while the evidence
explains why pre-registration increases turnout, it does not explain
why African Americans are more likely to pre-register or why the
other means of registration are less available to African Americans
than other groups.”)
3. After a few hundred pages of detailed factual findings, many of
which dispute the evidentiary findings and tests performed by
plaintiffs’ experts Charles Stewart, Paul Gronke, and Barry Burden,
the court turned to the legal issues. The court said it was applying
the 4th Circuit’s test for Voting Rights Act section 2 vote denial
cases, and under that test found that the totality of the
circumstances did not lead the court to conclude that protected
minority voters have less opportunity than others to participate in
the political process and to elect representatives of their choice.
This is the finding which would be most vulnerable to being
overruled by the 4th circuit on appeal. However, given the detailed
negative factual findings of the trial court, this may be a
difficult task. (Here is a key conclusion of the court: “In sum,
when increased minority participation correlates with the
availability of so-called convenience voting procedures,134it is
some evidence that they are fostering the increased participation.
But when minority participation increases despite the unavailability
of such mechanisms, the causal inference is rebutted, especially
where Plaintiffs have failed to show what turnout and registration
rates would have been in 2014 had the conveniences been available.
Such is the case here.”)
4. On the question of North Carolina’s history of racial
discrimination, the court concludes: “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.” And this finding, which will be hotly
debated: “Therefore, Plaintiffs have demonstrated that African
Americans and Hispanics in North Carolina are disproportionately
likely to move, be poor, less educated, have less access to
transportation, and experience poor health. There was no showing
that Hispanics suffer these as a result of historical
discrimination. However, there was a showing that the socioeconomic
disparities experienced by African Americans can be linked to the
State’s disgraceful history of discrimination.” And: “In sum,
Plaintiffs established that some segment of the State’s African
Americans endure socioeconomic disparities that can be linked to
State discrimination and this may make it more difficult for them
generally to participate in any electoral system. Plaintiffs,
however, 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 after SL 2013-381
within the multitude of voting and registration options available in
the State, especially given that the 2014 turnout data show
increased participation among African Americans under SL 2013-381.”
5. On the need for the voter id law to prevent voter fraud, the court
says first that it is hard to find impersonation fraud without an id
requirement, but more importantly the Supreme Court in the /Crawford
/case said there need not be evidence of impersonation fraud to
justify the law. So while the plaintiffs have to present tons of
evidence of burden, the state can get by with no evidence of a need.
(This seems perverse to me.)
6. The court also finds that the state did not act with discriminatory
intent, citing (without an appreciation for irony) at p. 387 the
testimony of Hans von Spakovsky to the legislature on the need for
this restrictive law. Whether or not his testimony was true, the
court says, the legislature could have believed it true, thereby
negating possibility of discriminatory intent.
7. The court, in much shorter sections of the opinion, rejects a number
of constitutional claims, including equal protection and violation
of the 26th amendment (claiming discrimination against young
voters). The equal protection analysis mostly tracks the VRA analysis.
[This post has been updated.]
Share
<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D82224&title=Breaking%20and%20Analysis%3A%20Federal%20District%20Court%20Upholds%20Restrictive%20NC%20Voting%20Law%20in%20485-Page%20Opinion&description=>
Posted inelection administration
<http://electionlawblog.org/?cat=18>,Supreme Court
<http://electionlawblog.org/?cat=29>,The Voting Wars
<http://electionlawblog.org/?cat=60>,voter id
<http://electionlawblog.org/?cat=9>,Voting Rights Act
<http://electionlawblog.org/?cat=15>
--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20160425/ff7cb9c1/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: share_save_171_16.png
Type: image/png
Size: 1504 bytes
Desc: not available
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20160425/ff7cb9c1/attachment.png>
View list directory