Sides argue federalism and Jim Crow racism at stake in voter ID trial

Mary Perry, William Barber II and Rosanell Eaton (l-r) leave federal court on Monday. (photo by Jordan Green)

by Jordan Green

A federal judge hears final arguments in a lawsuit against North Carolina’s voter ID law. Both sides contend the outcome of the case will have far-reaching consequences.

The resolution of a federal lawsuit on North Carolina’s voter ID law could signal the end of federalism or the return of Jim Crow, depending on one’s perspective.

“This is just a policy dispute,” Thomas Farr, a Raleigh-based lawyer for the state, told Judge Thomas Schroeder during final arguments in a Winston-Salem courtroom on Monday. “The US government and the NAACP don’t like voter ID, and the lawmakers of North Carolina wanted to pass a voter ID law. If this court throws out this law, then I would say that you have just declared that federalism is a dead letter.”

Outside the federal building after the trial, North Carolina NAACP President William Barber II told reporters: “It was eerie today to hear Tom Farr and all the white men in that group argue in essence that the federal government should not be involved in state issues and to argue, as they did in 1896 in Plessy v. Ferguson: ‘Let’s pass it and see what happens.’ We heard them argue that it affects few people. It was eerie to hear them say, ‘Let the law go into effect, and after the damage is clear we’ll say, ‘Oops, we’re sorry.’

“We’ve been down this road before,” Barber continued. “It was called Jim Crow.”

Lawyers for the North Carolina NAACP and the US Justice Department argued that the state’s voter ID requirement, which goes into effect during the March 15 primary, runs afoul of the 14^th Amendment because it disproportionately burdens black and Latino voters, and was enacted by the General Assembly with discriminatory intent. The plaintiffs are asking Judge Schroeder, who was appointed to the federal bench by President George W. Bush, to strike down the law to invoke an obscure provision of the 1965 Voting Rights Act that would require the state to obtain permission from the courts before making any further changes to its election system.

In June 2015, weeks before the trial over North Carolina’s omnibus 2013 election law was scheduled to begin, the General Assembly amended the voter ID provision with little debate. The amendment allows those who are unable to obtain photo ID to vote, but only after making a sworn declaration that they face a “reasonable impediment” because of reasons like lack of transportation, work schedules, family responsibilities and not having a birth certificate. Plaintiffs argue that the provision does not mitigate what they contend are the discriminatory aspects of the photo ID requirement, and that the process is confusing and intimidating.

At the plaintiffs’ request, Judge Schroeder split off hearings on the voter ID provision, while presiding over a trial on other aspects of the law, including the elimination of same-day registration and curtailment of early voting, in July 2015. The judge has yet to rule on any of the matters under contention.

“Walking through the process of photo ID, African Americans and Latinos face a double whammy,” said Penda Hair, a lawyer with the Washington-based Advancement Project who is representing the NAACP. “African American and Latinos are less likely to have photo ID, and they are funneled into a dysfunctional DMV system that is difficult to navigate even for highly resourced people.”

Catherine Meza, a lawyer with the US Justice Department, made the discriminatory intent argument on behalf of the plaintiffs, noting that the state Senate “dramatically” revised a pending elections bill shortly after the US Supreme Court’s Shelby decision, which nullified Section 5 of the Voting Rights Act. Under Section 5, several counties in North Carolina and other “covered” jurisdictions had been required to get pre-clearance from the Justice Department before enacting any electoral changes. Among several other changes, the Senate reduced the number the number of acceptable IDs voters could present at polling places, even though they knew that blacks and Latinos were less likely to possess those types of identification.

“They intended to suppress the emerging electoral power of African Americans and Latinos,” Meza said. “They kept the IDs that they viewed African Americans and Latinos as being less likely to have.”

Addressing the claim in his closing argument, Farr said, “The Senate wanted to have consistency in the number of IDs that would be accepted because it would be better for the voters.”

Farr spent much of his closing argument assailing an expert-witness report prepared on behalf of the plaintiffs that indicated that black and Latino voters are roughly twice as likely to lack photo ID, calling it “flawed” and “completely unreliable.” An expert witness hired by the state rebutted the plaintiff’s expert report, arguing that the numbers were inflated because the author didn’t use additional data or a manual review to eliminate false negatives in a data matching exercise comparing voter rolls to a list of DMV-issued photo IDs. But the state did not challenge the racial disparities revealed in the so-called “no-match lists.”

In rebuttal, Hair told Judge Schroeder that the Fourth Circuit Court of Appeals has ruled that the total number of voters affected by an electoral practice that denies or abridges the rights of people of color to vote doesn’t matter; it’s the disparity between whites and racial minorities that counts.

Hair’s closing argument cited the testimony of Sylvia Kent, a Person County resident who testified that two of her elderly and disabled sisters were unable to obtain photo ID from the DMV, and that of Rosanell Eaton, a 94-year-old Louisburg resident who said she made 10 different trips, shuttling between DMV and Social Security offices over the course of 21 days before she was finally able to match her name on the documents and obtain a photo ID.

In one of many questions posed to the lawyers, Schroeder asked how the hurdles faced by Eaton would be different in South Carolina, which also requires voters to present photo ID at polling places.

“South Carolina added a photo to the registration process,” Hair replied. “You don’t need to have a birth certificate.”

Schroeder asked Hair to square the plaintiffs’ position with the US Supreme Court’s 2008 decision in Crawford v. Marion County Election Board, which found that the state of Indiana did not violate the Constitution by imposing a voter ID law. Hair cited a Fourth Circuit ruling that the problem of voter fraud has to be more than imaginable to constitute a legitimate state interest.

“North Carolina would have to have more than an imaginable reason,” she said, “and the evidence of voter fraud is so thin, and we believe it’s a pretext.”

Under questioning by Schroeder, Meza acknowledged that the Justice Department pre-cleared a voter ID provision in Georgia prior to the Supreme Court’s Shelby decision, but she argued the circumstances were different because Georgia accepts a higher number of IDs than does North Carolina. She rejected a comparison with New Hampshire’s voter ID law.

“The demographics of New Hampshire are radically different,” she said, “and the history of New Hampshire is radically different.”

Schroeder did not spare the state from questioning either. He asked Farr to respond to the concerns raised by the plaintiffs that voters who fill out a “reasonable impediment” declaration might be disenfranchised through a challenge. The provision allows a challenger to bring evidence to a county board of election that the voter’s statement about the reason they are unable to obtain photo ID — say, because of a lack of transportation — is factually false. As an example, the judge repeated a question raised by the plaintiffs: Could a voter be successfully challenged on the claim of lack of transportation if they have access to a neighbor’s car even if they don’t own one themselves?

“The legislature intended that every inference be interpreted to favor the voter,” Farr responded. “It’s drawn very liberally. I think we need to wait and see what happens when the law is implemented. If there are problems we can go back and fix it.”

Farr argued that standing in line at the DMV to obtain a photo ID is not a burden, as the plaintiffs claim, but instead merely a “day-to-day annoyance.” He professed to Schroeder that he didn’t get the testimony of one of the plaintiffs’ expert witnesses who discussed how blacks and Latinos might be discouraged from voting under a cost-benefit analysis that considers the time, expense and competency required to obtain a photo ID from the DMV.

“Less wealthy and less educated people are less able to navigate the system,” Farr said. “That applies to every law.”

The judge cut him short.

“The right to vote is fundamental,” he said. “The courts have said that’s the right upon which all others rest.”