by Jordan Green
A renowned historian and conservative ideological warrior took the stand for the state of North Carolina in federal court in Winston-Salem today.
Stephan Thernstrom, a retired history professor at Harvard University, was retained as an expert witness by the state in November to rebut expert witnesses called by the NAACP of the North Carolina and the US Justice Department. The plaintiffs attempted with limited success to block Thernstrom’s testimony, arguing that the state should have notified them earlier of their intentions.
After taking the stand in Judge Thomas Schroeder’s court on Friday morning, Thernstrom savaged an expert report by Barry Burden, a political scientist at University of Wisconsin-Madison, which was submitted into evidence by the plaintiffs. Thernstrom denigrated Burden’s work as “sorely deficient.”
The federal trial over North Carolina’s restrictive 2013 election law is expected to wrap up on Feb. 1. The state is defending the law against claims it violates the Constitution by discriminating against blacks and Latinos. Judge Schroeder heard evidence on other provisions of the omnibus election law, including the elimination of same-day registration and curtailment of early voting, in July 2015. Arguments over the voter ID provision of the law were delayed at the request of the plaintiffs in consideration of legislation passed by the General Assembly in June to allow people without photo IDs to vote a provisional ballot after submitting a “reasonable impediment” declaration. The New York-based Advancement Project, which is litigating the case on behalf of the NAACP, has predicted that Schroeder’s ruling in the case “will have sweeping consequences for the state of voting rights nationwide.”
Burden’s testimony on Monday focused on how North Carolina’s new voter ID provision is likely to affect blacks and Latinos compared to whites, using a cost-benefit analysis known as “calculus of voting” — a mathematical model proposed by Anthony Downs n his 1957 book An Economic Theory of Democracy.
“In North Carolina, voters have to appear in person at the DMV to obtain a photo ID,” Downs testified. “That’s going to require time, maybe time away from work. There may be the cost of getting underlying documents like birth certificates.
“Blacks and Latinos are less likely to have the ID, so the burden of obtaining one falls more heavily on them,” he continued. “And it’s also harder for them to obtain ID because they have fewer resources.”
Burden also testified about the racial gap in educational attainment, adding that a high level of education is a strong predictor of voting behavior and a valuable resource for someone attempting to navigate a bureaucracy such as the DMV.
Stalking Burden’s testimony on Friday, Thernstrom said he found the difference between Downs’ theory and Burden’s application of it to be “glaring,” complaining that Burden focused disproportionately on the costs of voting as opposed to the rewards.
In fact, Burden did testify about the benefits of voting, including intangibles such as “being part of the social experience of democracy” and the “expressive benefit of voting for one particular candidate.”
During Burden’s cross-examination on Monday, Thomas Farr, a lawyer for the state, played up the word “burden” by noting that it was the same as the witnesses’ name. And on Friday, when called to the stand by the state, Thernstrom ridiculed Burden for his occasional use of the word.
“When we come to Burden, who is inspired by Downs, he abandons the academically sober word cost in favor of burden. That’s an evocative, emotive term: Now I lay my burden down…. Tote that barge, lift that bale. I submit that waiting in line an extra hour at the DMV is not a burden; it’s an annoyance of everyday life.”
Judge Schroeder, who was appointed to the federal bench by President George W. Bush, listened with rapt attention to Thernstrom’s testimony, swiveling his chair around to face the witness directly.
Addressing Burden’s purported lack of attention to the rewards of voting, Thernstrom testified, “I find it a stunning omission that, of course, stacks the deck. It could be used against anyone who wants to remove stop signs to prevent citizens and voters from speeding because they would impose a burden on them.”
Based on Thernstrom’s extensive research into upward mobility among different immigrant and racial groups, Farr asked the witness to appraise Burden’s testimony that blacks and Latinos will experience disproportionate burdens in adapting to changes in the electoral system such as the photo ID requirement.
“He strongly argues that lower-status and minority citizens are bound by habit in ways that the rest of us are not: If you change the rules of voting or the road, they’re less able to adapt,” Thernstrom testified. “I do find that rather demeaning and classist. I don’t find that supported by the evidence of historical research.”
Thernstrom revealed his rosy perspective on the current state of race relations in the United States when he gave a description of America in Black and White: One Nation, Indivisible, a 1997 book he coauthored with his wife, Abigail.
“It tells the story of the changing situation in African Americans’ status over the course of the 20th Century,” he said, adding that the period from 1900 to 2000 was “a century of enormous progress for African Americans.”
Thernstrom applied that viewpoint to recent history in North Carolina.
“I simply want to underscore as an outsider the remarkable progress of blacks in North Carolina,” he said, noting that African Americans went from holding lower levels of voter registration relative to whites in 2000, to higher levels of registration in 2008.
Thernstrom also denigrated a report by Charles Stewart III, a political scientist at Massachusetts Institute of Technology, which the plaintiffs entered into evidence. Thernstrom argued that blacks hold an advantage over whites in voter registration that is roughly equivalent to the disadvantage blacks face in the number of registered voters who do not have photo ID.
“Does that suggest the system is unfair to whites?” Thernstrom shrugged. “I do think that limits his analysis.”
Thernstrom acknowledge under oath that he has never testified on behalf of plaintiffs in the 16 voting rights cases in which he has appeared as an expert witness. In one case — a claim that a Wyoming county commission diluted the voting strength of Indians through an at-large voting scheme heard in 2010 — Thernstrom admitted that the court wholly dismissed his testimony and ruled in favor of the Indian plaintiffs.
Abigail Thernstrom, a former member of the US Civil Rights Commission and former senior fellow at the conservative Manhattan Institute, listened to her husband’s testimony from the gallery.
Before Judge Schroeder dismissed court for the day, North Carolina Elections Director Kim Strach testified about the state’s preparations for the March 15 primary, when the voter ID provision will be implemented for the first time. Strach acknowledged under cross-examination that two broadcast ads, which are 30 and 60 seconds long, do not mention the term “reasonable impediment” —the provision made by the legislature to allow people who do not possess a photo ID to vote. Strach said she made the determination that there wasn’t enough time in the ads to mention the option, but said her staff will provide training to county elections directors next week to ensure they’re able to assist voters who need to avail themselves of it.
Strach testified earlier in the week about the process for other voters to challenge the validity of provisional ballots cast under the “reasonable impediment” provision. On Friday, Judge Schroeder closely questioned Strach about the challenge process, suggesting his ruling might turn on the relative severity of the hurdles imposed by the state on voters who lack photo ID.
Schroeder asked Strach how county boards of election might rule on challenges to declarations of reasonable impediment filed by voters without photo ID based on a number of possible factors, including transportation, work schedule, family responsibilities and lack of a birth certificate. Strach resisted the judge’s efforts to pin her down, merely emphasizing the legal standard of “reasonableness.” She added that the statute requires county boards of election to rule in the light most favorable to the voter.
Strach told Schroeder that if a voter were unhappy with the county board’s decision, they could appeal to the State Board of Elections in Raleigh.
Michael Glick, a lawyer for the NAACP, noted that Strach had testified previously that there is no language in the statute setting out a process for appealing a decision by a county board to disqualify a vote cast under the reasonable impediment provision.
“Despite the fact that there’s not an appeal process, if a voter felt that the county board had not followed the statute, I believe the state board could hear that,” Strach said said. “That’s not an appeal; that’s a complaint.”