Winston-Salem—In 1940, 19-year-old Rosanell Eaton took a two-hour mule ride to the Franklin County courthouse in eastern North Carolina to register to vote. The three white male registrars told her to stand up straight, with her arms at her side, look straight ahead and recite the preamble to the Constitution word-for-word from memory. Eaton did so, becoming one of the few blacks to pass a literacy test and make it on the voting rolls in the Jim Crow era.
Eaton, a granddaughter of a slave, is one of the unsung heroes of the civil rights movement. She’s devoted her life to expanding the franchise, personally registering 4,000–5,000 new voters before losing count. “My forefathers didn’t have the opportunity to register or vote,” she said. “It is my intention to help people reach that point when they could do something.”
Now, as a result of North Carolina’s new voting restrictions—widely regarded as the most onerous in the country—the 93-year-old activist could be disenfranchised by the state’s voter ID requirement because the name on her driver’s license does not match the name on her voter registration card.
Eaton testified in federal court in Winston-Salem this week against North Carolina’s voting law, as part of a challenge brought by the Justice Department and civil rights groups to enjoin key provisions before the 2014 election under Section 2 of the Voting Rights Act. “Voting should be free and accessible to everyone,” she told Judge Thomas Schroeder of the Middle District Court of North Carolina.
Eaton was always the first one in the courtroom, looking resplendent in a fashionable pantsuit and matching hat. Her presence and testimony was a reminder of the long struggle to win the right to vote and the serious consequences of restricting that right today.
Eleven witnesses—a mixture of civil rights activists, legislators and election experts—testified against the law, known as House Bill 589, over the course of four days. I spent the week in court alongside Eaton. Here are my ten takeaways from the hearing:
1. The law disproportionately burdens African-American voters.
The plaintiffs, including DOJ, the North Carolina NAACP and the League of Women Voters, focused on three specific provisions of the law—the reduction of early voting from seventeen days to ten days, the elimination of same-day registration during the early voting period and the prohibition on counting provisional ballots cast in the right county but wrong precinct. In recent elections, African-Americans were twice as likely to vote early, use same-day registration and vote out-of-precinct.
In 2012, for example, 300,000 African-Americans voted during the week of early voting eliminated by the state, 30,000 used same-day registration and 2,500 cast out-of-precinct ballots. Overall, 70 percent of blacks voted early and African-Americans made up 42 percent of new same-day registrants.
“It is as if House Bill 589 were designed to deter the very practices that encourage turnout among blacks,” testified expert witness Barry Burden, a professor of political science at the University of Wisconsin-Madison.
2. The case is not about voter ID (yet).
The most controversial provision of the new law doesn’t go into effect until 2016 and thus wasn’t discussed much in court. But the state is doing a test run in 2014, where poll workers will ask for photo ID but voters don’t have to show it. Because of the potential for confusion, the North Carolina NAACP asked Judge Schroeder to enjoin the test run. Expect to hear a lot more about voter ID when the case goes to a full trial in July 2015.
3. Voter fraud is not a problem in North Carolina.
During the 2004 and 2008 elections, there was 1 case of voter impersonation out of 7.8 million votes cast. “I am not aware of specific instances of voter impersonation,” North Carolina elections director Kim Strach said in her videotaped deposition, which was shown in court.
The state presented no tangible evidence of voter fraud to justify the new restrictions. “There is no evidence we had problems with these enhanced forms of participation,” Senator Dan Blue, the Democratic minority leader, testified. (Ironically, the law does nothing to restrict absentee voting, where the potential for fraud is greatest.)
Lawyers for the state seemed to be arguing, in the vein of Donald Rumsfeld, that the absence of evidence is not evidence of absence. “If you don’t look for voter fraud, how can you find it?” testified Phil Strach (husband of Kim Strach), the former general counsel for the North Carolina GOP. (If a tree falls in the forest…)
Chris Coates, the former head of the Voting Section in the Bush Justice Department, who represented Judicial Watch, said the state was under no obligation to produce instances of fraud as a rationale for the law, despite the rhetoric of the GOP legislators who passed the bill. “If the interest trying to be achieved is combatting voter fraud, there does not have to be evidence that fraud has been committed in the state,” he said.
4. The Supreme Court’s Shelby County decision transformed the legal and legislative landscape on voting rights.
A month after the Supreme Court’s decision overturning Section 4 of the VRA, the North Carolina Senate took a sixteen-page bill passed by the House, which dealt exclusively with voter ID, and transformed it into a fifty-seven-page voter suppression behemoth.
“It was a 90 percent different bill,” testified Representative Rick Glazier, a Democrat from Cumberland County. “It was an ambush on the people of North Carolina.”
The Senate took only two days to debate the new bill, which repealed or curtailed nearly every reform that encouraged people to vote in the state. The House passed the Senate’s version in a matter of hours, with no amendments offered or public input. “It was, bar none, the worst legislative process I’ve ever been through,” Glazier said. “If you were writing a textbook on legislation, this was a textbook example of how not do it.”
5. Section 2 is no substitute for Section 5.
Not only did North Carolina not have to approve its voting changes with the federal government thanks to the Supreme Court’s decision, the burden of proof shifted from the state to the voters most impacted by the law, as did the legal standard needed to show discrimination under the VRA. “You have the burden of showing clear evidence,” Judge Schroeder reminded the plaintiffs several times.
Under Section 5, North Carolina could not implement any voting change that left minority voters worse off. But under Section 2, plaintiffs have to show that the “totality of circumstances” leaves a minority group with “less opportunity than other members of the electorate to participate in the political process.” The simplicity of Section 5 has been replaced by the complexity of Section 2. What would have been a slam-dunk case for the government and civil rights groups is now a long slog.
“As a practical matter, African-Americans will have less opportunity than white voters to register, cast a ballot and have that ballot counted,” DOJ attorney Bert Russ argued.
North Carolina Deputy Attorney General Alexander Peters countered that voters had no constitutional right to expanded voting opportunities like early voting. “The fact that they were good policies doesn’t mean they are entitled to them.”
“We’re not contending that Section 2 requires the adoption of early voting, same-day registration or the counting of out-of-precinct ballots,” Russ responded. “But in cases where these reforms were already adopted, where black voters disproportionately relied on them…when the state chooses to eliminate them without good reason, we’re likely to prevail on the merits.”
North Carolina is the first post-Shelby challenge to new forms of vote denial and abridgement other than voter ID (a judge in Wisconsin struck down a voter ID law under Section 2 for the first time in May). There are few relevant precedents in this area, which makes the outcome more uncertain.
6. North Carolina history cannot be ignored.
In 1965, black registration lagged fifty points behind white registration in the state. Decades after the passage of the VRA, the gap narrowed but remained significant. That changed starting in 2000, with the adoption by the legislature of early voting (2000), the counting of out-of-precinct provisional ballots (2005) and same-day registration (2007). North Carolina became one of the most progressive states in the country with regard to voting rights. As a consequence, black turnout increased 65 percent from 2000 to 2012—in 2008 and 2012, African-Americans registered and voted at a higher rate than whites for the first time in state history.
A year later the legislature repealed the reforms that boosted black participation. “In one bill, they obliterated what many of us worked on for twenty to thirty years to increase voter participation,” Blue testified.
MIT political scientist Charles Stewart, an expert witness for DOJ, said the elimination of same-day registration will reduce black participation by 3 percent—a significant number in a state known for close elections, where Obama won by 14,000 votes in 2008.
In 1996, North Carolina ranked forty-third nationally in voter turnout. By 2012, that number had jumped to eleventh. Now North Carolina is poised to tumble downward again. “Based on my experiences, you will have angry voters, you will have long lines, people will leave without voting,” testified Gary Bartlett, the head of the state board of elections from 1993 to 2013.
7. This is not just a black-versus-white issue.
“Young voters are uniquely targeted by this law,” argued Democratic super-lawyer Marc Elias, on behalf of a group of student voters. HB 589 ended pre-registration for 16- and 17-year-olds, and eliminated state university IDs as an acceptable voter ID. (You can enter a federal courthouse in North Carolina with a state university ID, but you won’t be able to vote with one in 2016.) In addition, young voters were 8.9 percent of the electorate in 2012, but 25 percent of same-day registrants. Elias is making the novel argument that the abridgement of young voter participation violates the Twenty-sixth Amendment, which lowered the voting age from 21 to 18. Judge Schroeder seemed skeptical of this argument.
Blacks and students weren’t the only ones from benefitting from the state’s voting reforms. Dale Ho of the ACLU noted that in 2010, 200,000 North Carolinians voted early, 27,000 used same-day registration and 5,000 cast out-of-precinct provisional ballots.
8. As goes North Carolina, so goes the nation.
Control of the US Senate may hinge on the outcome of the Senate race between Kay Hagan and Thom Tillis in North Carolina. A drop in voter turnout because of the voting restrictions could swing the election to Tillis and the Senate to the GOP.
“If the court doesn’t grant an injunction, there will be African-Americans who won’t be able to use same-day registration, who won’t have their provisional ballots counted, who won’t be able to get to early voting or will face obstacles if they do,” Russ argued. “Even though the problem will be magnified in a presidential election, there will be problems in November.”
On a more fundamental level, North Carolina brazenly took advantage of the Shelby decision to pass the country’s most sweeping package of voting restrictions since 1965. If the state gets away with it, expect other states to follow suit.
9. The voting restrictions could lead to a voter backlash.
In 2012, we saw that efforts to restrict the right to vote in states like Ohio led to higher voter turnout among targeted groups. While I’m somewhat skeptical of the “voter suppression leads to higher voter turnout” theory, the Moral Monday movement in North Carolina has done a superb job of organizing voter discontent against the GOP legislature.
On the fiftieth anniversary of Freedom Summer, the North Carolina NAACP is placing fifty young organizers in fifty counties with a goal of registering 50,000 new voters. “How many of you are going to leave here and remember the blood of the martyrs?” the Rev. William Barber of the North Carolina NAACP asked at a “Moral March to the Polls” rally in Winston-Salem after the first day of court hearings. Hundreds of hands went up.
10. This is just the beginning of the legal battle.
It’s tougher for plaintiffs to win a preliminary injunction than a full trial, especially in an off-year election when voter turnout is lower and restrictions on voting are perceived as less costly. “I’m not here to decide the ultimate merits of the case,” Schroeder said. “The question is the urgency of the injunction…. What is the irreparable harm before November?”
It’s very possible the plaintiffs could lose the preliminary injunction hearing and win the trial in July 2015, when they’ll have more time, more expertise and more evidence, like voter ID, to draw on.
As for the judge, Schroeder, a George W. Bush appointee, is regarded as one of the smartest and most conservative judges on the Middle District of North Carolina. He asked the plaintiffs a lot of questions about the standard he should use to examine the evidence and the harms to prospective voters in 2014. He seemed to grasp the significance of the case and struck me as tough but fair. He’s expected to issue a ruling sometime in the next month.