The sweeping election changes enacted by the state General Assembly and signed into law by Gov. Pat McCrory were intentionally implemented to impose a disparate burden on African-American and Latino voters, according to a historian called to testify by opponents of the law.
“There was a motive for legislation that places a disparate burden on African-American and Hispanic voters,” Allan Lichtman, a historian at American University, testified on Friday in the federal trial in Winston-Salem to determine whether North Carolina’s election law will stand. “They had the opportunity to do so with the consolidation of power in the legislature. Then you have the contemporaneous and post hoc justifications that do not stand up to scrutiny.”
Lichtman was one of two expert witnesses who testified on Friday for the plaintiffs, which include the North Carolina NAACP, the League of Women Voters and the US Justice Department. The other expert witness was Paul Gronke, a visiting professor at Appalachian State University who specializes in American history.
The plaintiffs are seeking to overturn the law, which includes the elimination of same-day registration, curtailing early voting from 17 to 10 days, and dropping out-of-precinct provisional voting. In addition to seeking to invalidate the recent changes, the plaintiffs are seeking to have North Carolina placed under federal oversight for future election changes through a little-used measure in the Voting Rights Act known as “bail-in.” The Washington, DC-based Advancement Project, whose co-director Penda D. Hair is the plaintiffs’ lead attorney, characterizes North Carolina’s HN 589 as “the nation’s worst voter suppression law,” while arguing that the outcome of the case could have sweeping national implications considering that other states passed restrictive voting laws in the wake of the US Supreme Court’s Shelby County v. Holder decision.
Lichtman and Gronke’s testimony, including an exhaustive review of voter data and conclusions based on analysis of events surrounding the enactment of the law, strongly supported the plaintiffs’ argument.
Lichtman testified that the facts of the case led him “to conclude that HB 589 was knowingly and deliberately adopted and signed into law to place a disparate burden on African-American and Hispanic voters with respect to voting and registration.”
US District Court Judge Thomas D. Schroeder sustained an objection from Thomas Farr, the lead attorney for the defense, to the use of the words “knowingly and deliberately.”
Point by point, Lichtman laid out a legal brief to support his conclusion that the architects of HB 589 set out to intentionally disenfranchise black voters. He said two phenomena that predate the 2013 passage of the law — rising voting strength among black and Latino voters, and changes to voting law enacted in the 2000s to expand access to the ballot box — are key to understanding lawmakers’ intent.
“From January 2004 to January 2013, the African-American share of voters in North Carolina rises by about 3 percent while the white share drops about 7 percent,” he said. “That’s a swing of 10 percent.”
North Carolina’s electoral polarization supplied a strong motive for Republican lawmakers to disenfranchise minority voters, he said.
“African Americans as compared to whites are far more likely to vote for Democrats in general elections,” he said. “I established this by looking at exit polls, including one involving an African-American candidate Barack Obama and another involving white candidates in the Kerry-Bush presidential election. The African-American vote went 93 percent to the Democrat, compared to 33 percent of the white vote. If the composite shifts from whites to blacks by 1 percent, that’s a 0.6 percent shift in favor of Democrats. If the composite shifts 5 percent from whites to blacks, that’s a 3 percent shift in favor of Democrats. That’s very significant in a state like North Carolina where elections are historically close.”
While not quite as dramatic, he added that there is a 37 percent gap between Latino and white voters’ propensity to vote Democratic.
Meanwhile, prior to the Republican takeover in 2011, Lichtman noted that the General Assembly enacted several changes to make voting more accessible, including introducing early voting and same-day registration, allowing partial out-of-precinct provisional voting, and inaugurating pre-registration of 16- and 17-year-olds.
“It’s looking at a major change in voting strength with rising voting strength of African Americans and Hispanics, and falling voting strength of whites, and it’s looking at a series of enactments to expand access to voting,” Lichtman said. “And of course it’s the combination of these two that’s important.”
The manner in which HB 589 developed is significant, Lichtman said. The legislation was filed simply as a voter ID bill, with extensive debate and opportunity for public input. But then days after the Supreme Court struck down the preclearance provision of Section 5 in the Voting Rights Act — affecting several North Carolina counties — in the Shelby decision, state lawmakers tacked on numerous other provisions, with little debate or public input. Looking only at changes to the voter ID provisions is illuminating, Lichtman testified.
“The Shelby decision has only to do with race,” he said. “If the additions and subtractions had nothing to do with race, the then there would be no requirement to wait for the Shelby decision.”
In the version of the bill filed after the Shelby decision, Lichtman said lawmakers eliminated several forms of photo ID used at a higher rate by African Americans, including student IDs issued by the University of North Carolina and government employee IDs, while adding ID forms more likely to used by whites, including veteran and military IDs, and passports.
“The additions cut in the same direction as the subtractions,” Lichtman testified. “They all act to impose greater burdens with regards to voting on African Americans. It’s not as if there was some mix of effects.”
Lichtman cited an information request by legislative leaders seeking cross-matched data on voter registration and DMV-issued IDs broken out by various categories, including race and ethnicity.
Lawmakers made a similar request to the University of North Carolina System, he testified.
Lichtman quoted an email from Drew Moretz, vice president for government relations, written while HB 589 was under development.
“I have been asked by a state lawmaker about the number of state IDs issued by the university system and the percentage of which are African American,” Moretz wrote. “I need it in two hours.”
Lichtman and Gronke both testified that African Americans were more likely to use early voting, same-day registration and partial out-of-precinct provisional voting. Gronke also predicted that the elimination of seven days of early voting would result in congestion and some voters would give up in frustration, with a disparate impact on black voters who are more likely to use early voting.
Farr, as lead counsel for the defense, attempted to degrade the evidence presented by Lichtman and Gronke by getting them to acknowledge contrary findings in competing reports, while battering their credibility by obtaining admissions about deficits in their own studies, for example that they hadn’t counted the number of precincts in a particular jurisdiction or gauged the size of voting facilities and the number of parking places at each one. Similarly, Farr obtained admissions from Lichtman about the limitations of his life experience, including that he had never administered an election.
As expected, Farr drew attention to an increase in black voter participation between the mid-term elections of 2010 and 2014.
“And early voting went up among both white voters and African-American voters, but the increase in early voting was three times as high among African-American voters, is that not correct?” Farr asked Gronke in cross-examination.
“That’s correct,” Gronke replied.
Gronke and Lichtman echoed testimony earlier in the week to the effect that 2014 was a historic election, with unprecedented spending in a US Senate race that determined the balance of power in the chamber, a rare open election in the 12th Congressional District designed to provide minority voters with the opportunity to elect a candidate of choice, and mobilization by the NAACP in reaction to HB 589 that is unlikely to be sustained in the future.
Lichtman assailed the assertions of Republican lawmakers and Gov. McCrory that the bill was similar to voter ID laws passed by other states such as Georgia, stating that following the Shelby decision the bill radically departed from those laws by adding numerous provisions that cumulatively imposed a burden on African-American and Latino voters.
He testified that arguments for the legislation by then-House Speaker Thom Tillis and others based on concerns about voter fraud and integrity lacked credibility. A review of voter impersonation incidents, the type of fraud that is deterred by voter ID, in North Carolina yielded only two cases that were referred for prosecution, Lichtman said. Over the same period, 47 fraud cases surfaced involving mail-in absentee voting, a method “overwhelmingly” used by white voters.
In his attempt to elicit testimony that would soften the perception of the election law, Farr asked Lichtman if he was aware that the legislature had recently passed an amendment to the voter ID provision.
Indeed he had, and Lichtman said the recent development supported his earlier testimony that the lawmakers knew that the law would impose a disparate burden on black voters.
“On the eve of this litigation, when they risked getting back into preclearance, they modified voter ID to bring it in conformity with other states that are not strict voter ID states,” Lichtman said, “so you can sign an affidavit if you leave your ID at Western Sizzler or it expired the day before the election.”