Sunday, August 7, 2016

On Voting, Courts Stepping Up to Responsibilities

      Eight decades ago, the Supreme Court declared in its now famous Footnote Four in United States v. Carolene Products Co. (1938) that three types of laws warrant special scrutiny when challenged in court. Courts should look more carefully than usual, the footnote instructs, at laws that run afoul of specific constitutional prohibitions, laws that distort the political process, or laws that disadvantage “discrete and insular” minorities.
      Three years ago, the North Carolina legislature passed a broad overhaul of election procedures that fit into two of those three categories. Newly freed from the requirement to preclear any election law changes with federal authorities, the Republican-controlled legislature passed a law to make it harder for African Americans to vote and thus to hurt Democrats in a state with racially polarized voting.
      A federal appeals court has now struck down major provision of the North Carolina law after finding that the legislature intentionally discriminated against minority voters in violation of the federal Voting Rights Act. Given the specific language of that law, Footnote Four’s admonitions were not essential to the decision. But the footnote is worth recalling now to emphasize that courts play an essential role in safeguarding democracy even when they may appear to be undermining it.
      The ruling by the Fourth U.S. Circuit Court of Appeals in North Carolina State Conference of the NAACP v. McCrory (July 29) details the damning evidence that North Carolina legislators were deliberately trying to suppress the black vote when they overhauled voting procedures in 2013. Writing for a unanimous panel of three Democratic appointees, Judge Diana Motz acknowledged that the GOP-controlled legislature and Republican governor Pat McCrory had the right to reconsider election law changes approved under previous Democratic administrations.
      “Elections have consequences,” Motz wrote, but “winning an election does not empower anyone in any party to engage in purposeful racial discrimination.” She and her colleagues saw through the state’s argument that legislators were acting only to eliminate some administrative problems resulting from the earlier changes.
      Tellingly, the North Carolina began its review of voting procedures by asking for racial data about the use of some of the voting practices that they were considering revising. In an earlier time, the legislature had made voting easier by approving such procedures as early voting, same-day registration, provisional out-of-precinct voting, and preregistration for 16- and 17-year olds.
      To no one’s surprise surely, the legislature learned that the state’s African Americans made more use of these voting procedures than the state’s white voters. Most concretely, the data showed that somewhat more than 60 percent of African Americans used early voting in 2008 and 2012 (60 percent and 64 percent respectively)  but fewer than half of white voters (44 percent and 49 percent respectively).
      The data also showed that African Americans were more likely to take advantage of same-day registration and more likely to cast provisional ballots based on voting at the wrong precinct. Black teenagers were more likely than white teenagers to preregister to vote at age 18 when applying for driver’s licenses after reaching age 16. And African Americans were disproportionately less likely than whites to have the kind of photo ID that the legislators decided to require for voting.
      Besides the new photo ID requirement, the law reduced early voting from 17 days to 10 days and completely eliminated three other practices: same-day registration, out-of-precinct voting, and preregistration. The change in early voting significantly eliminated one of the two Sundays that black churches had used in so-called “souls to the polls” voting drives. Black churches have long been the center of voter mobilization efforts in African American communities throughout the South.
      The changes in the law target African Americans “with almost surgical precision,” Motz wrote. The evidence of discriminatory intent, she said, was “as close to a smoking gun as we are likely to see in modern times.”
      The Fourth Circuit’s ruling came four days after the Fifth Circuit appeals court had ruled somewhat similarly against a strict voter ID law that Texas had enacted in the same year as North Carolina’s law. In an en banc ruling, the generally conservative appeals court voted 9-6 to find that the Texas law violated the Voting Rights Act because it had disproportionate effects on black and Latino voters.
      By coincidental timing, a federal judge in Wisconsin struck down voting law changes on the same day as the Fourth Circuit’s ruling in the North Carolina case. In a 119-page decision, Judge James Peterson said that provisions limiting early voting, eliminating weekend voting, and limiting absentee ballot voting to one location were unconstitutional because they intentionally discriminated on the basis of race.
      One weekend later, a federal judge in North Dakota also struck down parts of that state’s voter ID law. Judge Daniel Hovland ruled on Aug. 2 that the law unfairly burdened Native Americans by requiring a photo ID with a street address because many Indians on tribal reservations use post office boxes to get their mail.
      The seeming rush of rulings resembles the sudden spate of federal court decisions two years ago rejecting bans on same-sex marriages. The weak and unsubstantiated arguments about voting fraud and administrative burdens fall apart under the kind of scrutiny the Supreme Court instructed in Footnote Four. The integrity of the political process, it turns out, is too important to be left to politicians. Courts are now stepping up to their role in safeguarding that most precious of rights: the right to vote.

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