Stephan Thernstrom, a historian who has been called as an expert witness in dozens of federal cases involving claims of racial discrimination, takes the stand as witness for the state of North Carolina today in the federal trial in Winston-Salem over the constitutionality of the state’s new voter ID requirement, which goes into effect in the upcoming March 15 primary.
The plaintiffs, including the North Carolina NAACP and the US Justice Department, have sought to limit Thernstrom’s testimony, objecting that the defense only retained him in November, long after other expert witnessed were disclosed, effectively giving him the last word.
“We think they’re just trying to backfill what they could have put on their expert testimony list in the spring,” Michael Glick, a lawyer for the NAACP, argued before the court late on Thursday. “They’re just trying to have another bite at the apple.”
When Thomas Farr, who represents the state, said that Thernstrom had been deposed for seven hours earlier this month, Glick responded sharply: “That’s not true, your honor.”
“Excuse me,” Farr replied. “I had a 90-year-old man sit at Kirkland & Ellis for seven hours.”
Judge Thomas Schroeder said he would allow Thernstrom’s testimony, but “take it on a question-by-question basis.” He added, “As long as it has foundation and is relevant I’ll consider it.”
Schroeder noted that by the end of the week, there’s likely to be 25,000 pages in evidence in the litigation over North Carolina’s omnibus 2013 election law. Schroeder presided over hearings on the elimination of same-day registration and the curtailment of early voting over the course of three weeks in July. At the request of the plaintiffs, Schroeder split off the section of the trial dealing with voter ID, considering that the General Assembly had amended the law in June allowing voters who make a declaration of “reasonable impediment” to vote without an ID. The portion of the trial dealing with voter ID commenced on Monday.
“To the extent that there’s testimony that’s more argument than testimony I encourage you to stay away from that,” Schroeder admonished the state’s lawyers with regard to Thernstrom.
Abigail Thernstrom, Stephan’s wife, is better known between the two for work on voting rights. As a liberal supporter of the civil rights movement in the 1960s, Abigail Thernstrom evolved into a fierce critic of what she saw as the overreach of the Voting Rights Act.
A 2007 article in the Georgetown Journal of Law & Public Policy sums up Thernstrom’s views on the Voting Rights Act, particularly Section 5, which gave the federal government the power of preclearance over election law changes in covered jurisdictions that had a history of discrimination.
“While once upon a time every provision in the Act resembled an essential element in a beautifully constructed house with no extraneous or jarring parts, that old house is now a jumbled mess,” Thernstrom wrote. “The result is that after four decades in which courts and the Department of Justice, as well as Congress, have basically rewritten the statute, its constitutional legitimacy has been seriously undermined.”
Notably, in June 2013, the Supreme Court struck down the coverage formula, effectively disabling Section 5, and days later the NC General Assembly approved the restrictive new voting law currently under challenge in Schroeder’s court.
As Thernstrom’s politics have become more conservative over the past four decades, she has gradually moved into the corridors of power, securing positions on the US Commission on Civil Rights, the American Enterprise Institute and as an advisory board member with the US Election Assistance Commission.
While Abigail Thernstrom enjoys the higher profile between the two, Stephan Thernstrom has worked more prolifically as an expert witness in court cases. The cases that Thernstrom takes on share a commonality, Adam Shatz wrote in a 2001 article in The American Prospect: “When school boards and city commissions have found themselves challenged in court by minorities claiming they’ve been denied a voice in local affairs, Stephan Thernstrom has readily made himself available.”
In one case, in 1997, Shatz wrote, that Thernstrom was hired by a local school board to refute an expert report filed on behalf of the Ute Mountain Indians, who were suing to challenge an at-large election method that denied them representation. Having recently returned from a vacation in the Galapagos Islands, Thernstrom testified that he had never heard of the Ute Mountain Indians, and, Shatz wrote, responded to a question about how many votes Indian candidates received drew a blanks, saying, ‘Two weeks in the Galapagos, where the airport was closed by snow, et cetera, I’m — this all seems very remote to my memory now.’”
The Utes won the lawsuit.
The Thernstroms’ views on racism and racial disparities as a broad topic can be summed up by the working title of a forthcoming book they are co-authoring, according to their website: Don’t Call It Segregation: The Myth of Contemporary Apartheid.
The NAACP and the US Justice Department rested their case on Thursday with testimony from Kim Strach, the executive director of the state Board of Elections. Glick questioned Strach on the process for voting without photo ID under the exception carved out by the June 2015 legislation. The plaintiffs contend that the state has done little to educate voters about the option, which involves signing a “reasonable impediment” declaration attesting under penalty of perjury that they are unable to obtain photo ID, and that the exception does little to address the chilling effects of the law on people of color.
Strach testified that voters who show up at polling places without photo ID will be directed to a so-called “help station,” along with people who are in the wrong precinct or whose names are not listed in the poll books. Voters who sign a “reasonable impediment” declaration will be allowed to vote a provisional ballot that will be reviewed for approval by the three-member county board of elections during the canvass. Any voter may challenge a “reasonable impediment” declaration on the basis of factual falsity, Strach testified, with the hearing being held during the canvass — 10 days after the election on even-numbered years and seven days afterwards on odd-numbered years — which is always held at 11 a.m.
“The voter whose ballot is challenged would have to travel to the county board of election at 11 a.m. on a workday, correct?” Glick asked.
Strach testified in response that by statute the three-member county board must convene at 11 a.m. on the official canvass day, but added that they have the discretion to schedule a hearing for another time when it was more convenient for a challenged voter to defend themselves.
Strach also testified that from March 15 through July 20, 2015, her office has referred only two cases of voter impersonation fraud — the offense that voter ID is designed to deter — to local prosecutors. Both cases remain active, but no charges have been filed.
As lawyers for the state mounted their case, they called to the stand Trey Hood, a political scientist at the University of Georgia, whose testimony cut against the plaintiffs’ arguments that the photo ID requirement places a disproportionate burden on black and Latino voters. Hood testified as an expert witness that the handful of states that have implemented voter ID have seen negligible impact on turnout.
“To date, in my survey of this topic, none of the peer-reviewed academic research can show any substantial effect, and then when you drill down to racial data, you don’t see any substantial effects, including my own research in Georgia,” Hood testified.
“Overall, we saw a slight depressive effect — 4/10 of a percentage point,” he continued. “In other words, without voter ID, we would estimate that turnout would be 4/10 percent higher. In terms of a racial effect, we didn’t find any effect on race. In fact, white voters were more affected.”
Earlier in the week, Barry Burden, a political scientist at the University of Wisconsin-Madison, testified that black and Latino voters are less likely to have photo ID, and more likely to face structural barriers to obtaining one because of difficulty getting time off work, financial challenges and lower levels of education.
Thomas Farr, one of the lawyers arguing for the state, downplayed Burden’s testimony as “predictive.”
The court also heard testimony from Rick Glazier, a Democratic member of the state House at the time that the legislation amending the voter ID law was passed in June 2015. Glazier testified that he received an email from Rep. Chuck McGrady referencing the lawmakers motivation to pass the measure. “In the face of clear evidence that people were being denied IDs, the legislature moved to provide for provisional ballots in some instances,” McGrady wrote. “Activists have been quick to castigate Republicans in the General Assembly, but we obviously didn’t want to have this whole discussion on the floor of the Senate or House since it would become part of the ongoing lawsuits.”
Judge Schroeder revealed his skepticism towards the plaintiffs’ claims when he ruled that the email should be excluded from evidence.
“They were motivated by a desire to avoid litigation risk,” said Penda Hair, a lawyer for the NAACP. “Not to purge the discriminatory intent, but to maintain the law.”
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