Trial likely to pivot on whether NC election law is discriminatory

by Jonathan Michels

Just days before the 50^th anniversary of the Voting Rights Act, the federal trial in Winston-Salem examining North Carolina’s controversial voting rights law came to a close after three weeks of debate.

The arguments over North Carolina’s omnibus voting law boiled down to two opposing arguments familiar in the South: the state’s authority over election law versus the ability of minorities to exercise the right to vote.

Defense attorneys for the state government claimed that the voting law was a product of majority rule. Republican legislators were sent to Raleigh instill confidence in the electoral system and challenging authority constitutes an infringement on state’s rights.

“What’s at stake is the authority of the state under the [constitutional] election clause,” claimed Thomas Farr, while defending North Carolina’s voting restrictions.

On the other side, lawyers representing several groups, including the North Carolina NAACP and the League of Women Voters argued passionately that the most important function of government was to ensure the right of every citizen to access the franchise.

“When [African Americans] are on the verge of having a real influence on politics in North Carolina, the legislature stepped in and changed the rules,” countered Bert Russ, who alleged that the voting law violates the Voting Rights Act and is unconstitutional.

Just as the Voting Rights Act of 1965 was the cornerstone of a successful strategy designed to ensure African-American access to the ballot box, opponents say NC House Bill 589 is the foundation of a plan by conservative legislators to limit African-American electoral participation. And both parties in the suit agree that the outcome of the trial in Winston-Salem could have far-reaching effects throughout the country.

Judge Thomas Schroeder, appointed by President George W. Bush, asked numerous, pointed questions to both parties, but made it clear to plaintiffs that the challenge would be explaining how HB 589 specifically violated Section 2 of the Voting Rights Act. That section prohibits voting practices or procedures that discriminate against people on the basis of race, color or language, resulting in diminished opportunity to participate in the political process and to elect candidates of their choice.

Experts for the plaintiffs put North Carolina’s racial history on trial, beginning with slavery and continuing years after the Civil War with white riots, the bloody overthrow of the state legislature and later, Jim Crow segregation.

Judge Schroeder wasn’t buying it.

“I’m sure that other states have histories of discrimination,” Schroeder said on the final day of the trial.

“But not on the scale of North Carolina,” countered Daniel Donovan, an attorney representing the plaintiffs. “It’s history, but it’s relevant because it happened here.”

More importantly, Donovan argued, North Carolina’s legacy of racial discrimination continues to disadvantage African Americans in almost all areas of daily life, including education, income, health and transportation.

Schroeder agreed that minorities in North Carolina are challenged by racial disparities. But despite evidence showing that African Americans disproportionately used many of the targeted voting practices, Schroeder questioned whether the plaintiffs had successfully proven that the voting changes mandated by HB 589 placed a burden on African Americans. After all, turnout increased among all groups, including African Americans, in the 2014 election despite the restrictions imposed by HB 589.

“Nobody’s told me what [turnout] should have been without HB 589,” Schroeder said. “The test is to look at a snapshot of the world without HB 589 under Section 2 and to see if there is an equal opportunity for African Americans to vote.”

This was a common concern for Schroeder, who doggedly asked for a measuring stick to determine how courts in the future would know when African Americans finally have “parity” — an equal opportunity to participate in an election — under Section 2 of the federal Voting Rights Act.

Schroeder’s interaction with Bert Russ, an attorney representing the US Justice Department, struck at the heart of the plaintiffs’ argument. Russ addressed the judge’s desire to see data from the 2014 election sans HB 589 by lightly stepping around it.

“You don’t have to measure what the turnout in 2014 would have been,” Russ said, “only to show the disparate effect of the law on African Americans.”

“How will I know?” Schroeder responded.

Voting measures like same-day registration and longer early-voting periods helped African Americans overcome the burdens of racial inequality, Russ answered. They came to rely on those measures and they were taken away by the state.

“We won’t find a nirvana of African-American participation, but that’s not the goal,” Russ said. “Your goal is to look at the violations put before you, not determining when we have a perfect system.”

Rather than search for an empirical formula to answer the equation, Schroeder needed to examine the “totality of the circumstances” under Section 2, the plaintiffs urged, which includes the history of North Carolina’s racial discrimination and its effects on political participation. The plaintiffs are seeking to return North Carolina’s voting laws to what they were before the passage of HB 589, and for Schroeder to mandate that future changes be approved by the federal government before they are implemented.

Compared to the plaintiffs’ closing arguments, defenders of the state’s restrictive voting law kept their comments brief and to the point. The defense attorneys argued that the debate was really about policy and the power of the state to change election laws under the Constitution.

“The practices passed in HB 589 represent majority rule,” Farr summarized.

He pointed out that many states have never offered some of the measures that were cut under HB 589. The state of New York, for instance, doesn’t offer early voting, Farr said.

He agreed with Schroeder that a baseline was necessary to determine whether African Americans have been burdened by the law. Witnesses for the plaintiffs offered passionate testimony, but it’s not enough to simply show the existence of racial disparities, Farr claimed.

“I had great parents,” Farr said. “I got to go to law school and I’m grateful for that. But election laws can’t take into account every [one of society’s] socioeconomic ills.”

Schroeder didn’t automatically accept Farr’s argument.

“Maybe not,” he replied, “but the court should take into account historical disadvantages that African Americans have had over time. Shouldn’t I take that into account in looking at the burden that HB 589 puts on African Americans?”

“Unless they lead to injury, those factors shouldn’t come into play,” said Farr.

Later, Schroeder himself questioned the intentions of Republican lawmakers, who passed the voting law quickly and with little public debate in 2013. He was adamant that government should make it easier for people to vote. Republican legislators weren’t responding to public pressure, Schroeder said, because some of voting measures that legislators removed with the bill, like the number of early-voting days, had strong public support across the board.

Opponents of the law say it was also a political move because African Americans traditionally vote for Democratic candidates. In his final remarks, Farr alluded that the intentions of HB 589’s critics were political as well.

“This case is unprecedented,” Farr said. “[The plaintiffs] want the practices that their ‘get out the vote’ groups prefer. They want you to decide on how much influence minorities should have on the political process.”

It could be months before Schroeder makes that decision, but regardless of what he hands down, the ruling is likely to be appealed.