US District Court Judge Thomas Schroeder’s decision last week to uphold North Carolina’s sweeping overhaul of election law — curtailing early voting, and eliminating same-day registration and out-of-precinct voting, while imposing a photo ID requirement — shouldn’t have come as a huge surprise.
After all, Schroeder rejected a preliminary injunction sought by the plaintiffs in North Carolina NAACP v. McCrory in 2014, reasoning in part that they were unlikely to prevail on the merits of their argument.
By the same token, a ruling on the preliminary injunction by the Fourth Circuit Court of Appeals in Richmond, Va. that same year might give us some indication of the shape of things to come.
Writing for the majority on a three-judge panel for the Fourth Circuit, Judge James A. Wynn, a North Carolinian, took Schroeder to school. Before charging that Schroeder’s analysis had revealed “numerous grave errors of law that constitute an abuse of discretion,” Wynn laid out some ground rules. “Everyone in this case agrees that Section 2 has routinely been used to address vote dilution — which basically allows all voters to ‘sing’ but forces certain groups to do so pianissimo,” he wrote. “Vote denial is simply a more extreme form of the same pernicious violation — those groups are not simply made to sing quietly; instead their voices are silenced completely.”
As an example of what unconstitutional voter suppression might look like, Wynn quoted none other than the late US Supreme Court Justice Antonin Scalia, an arch-conservative hardly known as a friend of the oppressed and disenfranchised.
“If, for example, a county permitted voter registration for only three hours one day a week, and that made it more difficult for blacks to register than whites, blacks would have less opportunity ‘to participate in the political process’ than whites, and [Section] 2 [of the Voting Rights Act] would therefore be violated,” Scalia wrote.
Wynn concluded in the Fourth Circuit’s slapdown of Schroeder, “At the end of the day, we cannot escape the district court’s repeated findings that plaintiffs presented undisputed evidence showing that same-day registration and out-of-precinct voting were enacted to increase voter participation, that African-American voters disproportionately used those electoral mechanisms, and that House Bill 589 restricted those mechanisms and thus disproportionately impacts African-American voters. To us, when viewed in the context of relevant ‘social and historical conditions’ in North Carolina, this looks like the textbook example of Section 2 vote denial Justice Scalia provided.”
Give Schroeder at least this credit: His 485-page opinion evaluated virtually every piece of evidence presented by the plaintiffs against the guidelines set by Wynn, while coming to a conclusion opposite the appellate judge.
Schroeder’s decision essentially comes down to a single sentence in his ruling: “Plaintiffs have failed to show that any North Carolinian who wishes to vote faces anything other than the ‘usual burdens of voting.’”
Schroeder reasoned that an uptick in African-American turnout from 2010 to 2014, when many provisions of the new law went into effect, undermined the plaintiffs’ argument that “so-called convenience voting procedures” suppressed voting rights. The judge may have missed the testimony of North Carolina NAACP President William Barber II and other witnesses called by the plaintiffs.
Encapsulating the political dynamics of the 2014 election year, Steve Ford, a volunteer program associate at the North Carolina Council of Churches, wrote for NC Policy Watch on Monday: “When an even stronger Republican majority was joined by a newly elected Republican governor, Pat McCrory, in 2012, a sea change in state policy began in earnest. A conservative agenda highlighted by tax and spending cuts, along with other measures decried by progressives, led to a huge backlash spearheaded by the state chapter of the NAACP.”
Ford noted that the 2014 election provided an opportunity for black voters to push back at the polls and that a tightly contested US Senate race between Kay Hagan and Thom Tillis likewise boosted turnout.
“Just because more black citizens voted in 2014 than four years before, that doesn’t necessarily mean they weren’t bucking a tide of discrimination,” Ford concluded. “They simply may have been swimming harder.”
The plaintiffs have appealed Schroeder’s ruling, ensuring that the case will again come before the Fourth Circuit, although it’s far from certain that the plaintiffs will have the good fortune to have as sympathetic as jurist as Wynn assigned to the case.
The Supreme Court has never before considered a Section 2 vote-denial claim, and it’s easy to imagine North Carolina v. McCrory one day coming before the high court. The 5-4 majority that handed down Shelby County v. Holder in 2013 — which eliminated the preclearance provision of the Voting Rights Act and prompted the NC General Assembly to hastily pass the sweeping voting restrictions at issue — is now split right down the middle with the death of Scalia.
It’s worth remembering what Justice Ruth Ginsburg wrote in her dissent for Shelby: “Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”