Plaintiffs rest their case in federal trial of NC election law

by Jordan Green

The history of black political participation and a review of instances of documented fraud round out the plaintiffs’ case as the federal trial of North Carolina’s election law marks its third week.

Plaintiffs seeking to overturn North Carolina’s new, restrictive election law rested their case with the testimony of Alexander Ealy, an African-American sergeant in the US Army stationed at Fort Bragg, at the end of the second week of a federal trial in Winston-Salem.

Ealy, like dozens of other lay witnesses called by the plaintiffs, testified that he was prevented from voting in the 2014 election. In Ealy’s case, the trouble lay in the fact that he wrote his physical address rather than his unit address under the section on his voter registration form designated for his mailing address. The Cumberland County Board of Elections had been unable to confirm Ealy’s registration, and his name was not on the rolls when he appeared at the local public library during the early-voting period. Prior to the passage of the 2013 omnibus election reform law, Ealy would have been allowed to register and vote on the same day during early voting.

Earlier in the day, the court had heard from James L. Leloudis II, a history professor at UNC-Chapel Hill, who placed the barriers to voting enacted the state General Assembly in the context of a long history of conservative backlash in response to exertions of black political strength.

“North Carolina has a long and cyclical history of struggle of minority voting rights from the time of Reconstruction to the present day,” Leloudis wrote in an expert report submitted to the court. “During the late 1860s, then in the 1890s, throughout the civil rights movement that followed World War II, and again in recent decades, black citizens pressed for free and fair access to the franchise, made alliances with sympathetic whites, and used the power of biracial politics to democratize the state and its institutions.”

At least one feature of the new election law, known as HB 589, copied the pattern of the white-supremacist resurgence of the late 19^th Century that routed the interracial fusionist rule and would effectively disenfranchise blacks for the next 67 years. In repealing fusionist reforms in 1899, the General Assembly passed a law allowing “any elector” to “challenge the vote of any person” on suspicion of fraud, according to Leloudis’ report. Likewise, in HB 589, state lawmakers relaxed regulations on vote challenging. Where in the past only a voter from the same precinct could challenge a citizen seeking to cast her ballot, under the new law any voter from the same county could do so.

Vote challenging by the white supremacists who seized control of state government during the 1898 and 1900 elections had a distinctly violent and intimidating cast.

Alfred Waddell, a white-supremacist campaigner is reported to have exhorted a crowd in Wilmington on the eve of the 1900 election: “You are Anglo-Saxons. You are armed and prepared, and you will do your duty…. Go to the polls tomorrow, and if you find the negro out voting, tell him to leave the polls, and if he refuses, kill him, shoot him down in his tracks.”

Yet whatever claims the white supremacists may have made about fraud under fusionist rule, they saw little need to deny their own use of it. Charles B. Aycock, who won the gubernatorial election of 1900, declared, “We have ruled by force, we can rule by fraud, but we want to rule by law.”

Stated concerns about fraud undergirded HB 589, which began simply as a voter ID bill before blossoming into an omnibus legislative package with provisions such as the elimination of same-day registration, cutting provisional out-of-ballot voting and curtailing early voting that plaintiffs say disproportionately burden black, young and poor voters.

“Each significant effort to protect and extend the right to vote” during the modern civil rights era has been met with arguments “that reduced barriers would lead to voter fraud,” Lorraine C. Minite, an associate professor of public policy at Rutgers University, wrote in an expert report prepared for the plaintiffs.

The court has reviewed a video of a March 2013 MSNBC interview with then-state House Speaker Thom Tillis that articulates the legislature’s rationale for HB 589.

“Well, we call this ‘restoring confidence in elections,’” Tillis said in the broadcast. “There is some voter fraud, but that’s not the primary reason for doing this. There’s a lot of people who are just concerned with the potential risk of fraud, and in our state it could be significant. This is just a measure that we think makes three-fourths, nearly three-fourths of the population more comfortable and more confident when they go to the polls.”

Minnite reported that the NC Board of Elections referred one case of voter impersonation — the type of voter fraud that would be deterred by photo ID — for prosecution from 2000 to 2012. She wrote that 377 out of 631 cases of alleged illegal voting uncovered by the state Board of Elections involved people with felony convictions whose voting rights had not yet been restored, predominantly in the 2008 election. Her report quoted elections investigator Marshall Tutor as saying that many of the offenders were felons who were likely unaware that they were required to re-register to restore their franchise.

Minnite also cited a federal prosecution effort between 2002 and 2005 that uncovered two cases of alleged voter fraud. One involved Joshua Workman, a Canadian citizen who got involved with the local College Republicans chapter at Lees-McRae College in Banner Elk, while the other involved a vote-buying scheme on behalf of Gary Clark, a Republican candidate for sheriff in Caldwell County in 2002.

“Requiring voters to produce a government-issued photo identification has no prophylactic impact on vote-buying,” Minnite wrote.

Minnite testified that voter fraud in North Carolina is “exceedingly rare” and offered the opinion that stringent photo ID requirements “are not justified to reduce or prevent voter impersonation and other forms of voter fraud.”

While the plaintiffs have argue that restrictions on access to the polls falls more heavily on black, young and poor voters, testimony by one of their witnesses on July 23 demonstrated that the provisions can create collateral casualties. Case in point was Anna Grace Martin, the daughter of North Carolina Supreme Court Justice Mark Martin. Testimony by Wake County Elections Director Gary Sims indicated that Anna Grace Martin was prevented from casting a ballot during the early-voting period in the 2014 general election because of a clerical error by the state Division of Motor Vehicles. Access to same-day registration, which was eliminated the previous year, would have provided a workaround. Martin’s father was appointed to the position of chief justice by Gov. Pat McCrory and was backed by the Republican Party in the 2014 election.

The state of North Carolina, the defendant in the lawsuit, called its first witness on July 24. Janet Thornton, a labor economist at Florida-based Economic Research Services, provided testimony that countered expert witness testimony for the plaintiffs supporting their contention that the new election law tends to discourage participation by blacks, Latinos and youth. Thornton testified that turnout among voters ages 18 to 24 increased from a share of 17.5 percent of the electorate in 2010 to 18 percent in 2014 — a difference that was “statistically significant.”

Undercutting claims by the plaintiffs that the 2013 election law exerted a negative effect on black electoral participation, Thornton testified that the greatest drop-off of the African-American vote occurred between 2008 and 2010. And despite the reduction in early voting days, Thornton testified that the percentage of blacks who used early voting went up from 35.9 percent in 2010 to 43.1 percent in 2014.

Judge Schroeder is likely to base his opinion on legal distinctions, but Leloudis suggested in his expert report that history waits in the wings.

“It is clear that today, as in years past,” he wrote, “the future of North Carolina’s democracy — for better or worse — will be forged on the anvil of race.”