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Thursday, July 25, 2013

The Voting Rights Act -- North Carolina Voter Suppression Edition

North Carolina is about to become less democratic.

The Republican-led legislature is poised to pass -- and the Republican Governor plans to sign -- the most restrictive voting regulations in the country.  The proposed bill makes all sorts of changes to North Carolina's elections that will, ultimately, make it harder to vote.  There's a new voter ID provision, which will be the toughest in the nation.  The law takes away the ability of 16- and 17-year olds to pre-register to vote.   It reduces the number of early voting days and prohibits counties from extending polling hours on Election Day due to extraordinary circumstances such as long lines.  The bill, if passed, will have a tangible effect on who will be able to vote in North Carolina.

Although couched in terms of warding off voter fraud (even though there is little evidence of actual fraud that this law would eliminate), the proposed law goes against everything to which we should aspire in a democracy.  States should have an obligation to make voting easier, not harder.  It is not enough to make voting equal for everyone -- although this bill does not even meet that more modest test, as it will have a disparate impact on minorities and young people (read:  those who are more likely to vote for Democrats).  Instead, as I argue in a forthcoming symposium article in the Oklahoma Law Review (on SSRN soon!), the government should be required to make voting as easy as possible, subject only to reasonable economic, administrative, or other logistical constraints.  Our democracy starts with the right to vote.  Nothing happens – no one is elected, meaning that no laws are passed – until there is a valid election that includes all eligible citizens.  This law would effectively take that right away from otherwise-eligible North Carolina citizens because it puts unnecessary obstacles between them and the polling booth.

The law is a sad outgrowth of the Supreme Court's decision last month to invalidate a portion of the Voting Rights Act.  Previously, forty North Carolina counties were covered under Section 5 of the Voting Rights Act, which required those jurisdictions to seek preclearance from the federal government before enacting any voting changes.  North Carolina would not have been able to pass this statewide law without approval from the Department of Justice or a federal court, and it would have had the burden of showing why the law was not discriminatory.   Now there are no constraints to what is obviously a partisan-laden attempt to alter the election process at the expense of minorities and other disfavored groups.

Recent election law jurisprudence also suggests that the courts will be unlikely or unwilling to provide meaningful judicial relief.  As I recounted earlier, one tacit message from recent Supreme Court case law is that states should have wider leeway to run their elections.  Therefore, only narrow, piecemeal as-applied challenges to the law are likely to succeed, which will require detailed evidence of the actual burdens a voter has suffered.  This might even require a voter to suffer that burden for at least one election cycle, infringing their right to vote in the process.  The U.S. Supreme Court has implied that it will robustly trust the states to regulate the election process.  North Carolina's actions demonstrate that this trust is misguided.

The irony here is that North Carolina's Constitution, like those of almost every other state but unlike the U.S. Constitution, explicitly grants the right to vote to its citizens.  See N.C. Const. art. VI.  Therefore, as I argue in a forthcoming article in the Vanderbilt Law Review, there should more protection for voting under state law, not less.  North Carolina's proposed new law has it backward.

Posted by Josh Douglas on July 25, 2013 at 01:37 AM | Permalink


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If you want to anchor your argument in the simple legitimate fact of fraud being possible, then you are compelled to anchor the other, implicit, side in the simple legitimate fact of voter suppression being possible.

Both are legitimate, as would be the actual, and, by the way, legitimate, fact of demonstrable harm. The harm weighs heavily to favor allowing a little fraud for the sake of also allowing a lot more voting. If you chose not to weigh harm then there is no logical case to be made on behalf of moving to lawfully eliminate notional voter fraud.

Of course, by "little" it is understood the amount of fraud is demonstrably miniscule--something on the order of 1 conviction per 10 million voting instances.

Actually, in the case of North Carolina, the suppression effort is transparent. Simple Voter ID laws--the kind that allow commonsense rather than partisan strategizing to inform the allowable types of ID--do appeal to a rationale based in the contemporary ubiquity of forms of ID.

However, it is clear the strategizing is to cause to flourish highly targeted law--law made expressly to dampen the ease of voting of specific populations, even if the members of the population have Voter ID.

Posted by: Dr. Puck | Jul 30, 2013 2:59:52 PM

"Finally, the argument about there being little fraud depends on a) free and unbiased media reporting of such things, and b) free and unbiased election officials reporting such things, neither of which exists except in the fevered utopias of idealists."

Incorrect; it depends also on whether or not there are parties with the means, motive and opportunity to discover it. Considering that there are a large number of GOP government officials who have all three, and can't come with more than (IIRC) 50 actual cases in several years over a vast number of elections...............

Posted by: Barry | Jul 29, 2013 2:23:29 PM


You cannot, except in egregious circumstances mostly pertaining to how laws are enforced, not promulgated, use the Equality of Outcomes as the basis for whether a law is just. You have to look at the Equality of Opportunity.

A Feminist looks at the makeup of a firefighting department (all men), sees arbitrarily high physical requirements, and cries sex discrimination. This is because they are concerned with Equality of Outcome. A realist, who understands what it takes to lug a comatose or injured civilian out of a burning building, insists that ANYONE (male or female) meet high physical standards to be a fireman. That most women (and the majority of men) can't or won't meet those standards is Equality of Opportunity - if they worked hard enough, built enough muscle, etc. they probably could. Though many couldn't just due to small stature - reality interferes with ideals.

Regarding voter ID laws, the same applies. By and large, they seek to make it so that only legally eligible citizens can vote; to eliminate the potential for fraud. In a society where nearly everything we do requires a valid ID, from banking to purchasing liquor to renting a movie or flying on an airplane or even operating a car, possessing a valid ID has long been demonstrated to not be an onerous burden.

That requiring an ID is racial discrimination because it's mostly poor minorities that don't have them, or would vote democrat, is absurd. Likewise, the charge that there isn't enough proven fraud out there to be concerned about it is also absurd; the likelihood of a crime's occurrence has zero to do with its legitimacy. Finally, the argument about there being little fraud depends on a) free and unbiased media reporting of such things, and b) free and unbiased election officials reporting such things, neither of which exists except in the fevered utopias of idealists.

Posted by: Mr. Krishan | Jul 25, 2013 3:32:09 PM

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