A three-judge panel of the Fourth Circuit Court of Appeals today reversed a lower federal court and struck down North Carolina’s notorious voter ID law, as well as its provisions curtailing or eliminating early voting, same-day registration, out-of-precinct voting, and preregistration of 16 and 17 year-olds.
Significantly, the unanimous circuit court concluded that the law does more than “just” have a discriminatory impact, in violation of a section of the Voting Rights Act (VRA). The court also found that the law’s purpose was to discriminate, putting it in violation of the United States Constitution. One piece of evidence: state officials moved to enact the law within days of the Shelby County case removing any preclearance requirements under Section 5 of the VRA.
The district court had concluded that the provisions at issue had neither a discriminatory intent or effect, noting that there was little “official discrimination” in the state since the 1980s. The unanimous Fourth Circuit took a more careful look:
The record reveals that, within the time period that the district court found free of “official discrimination” (1980 to 2013), the Department of Justice issued over fifty objection letters to proposed election law changes in North Carolina — including several since 2000 — because the State had failed to prove the proposed changes would have no discriminatory purpose or effect. …
During the same period, private plaintiffs brought fifty-five successful cases under § 2 of the Voting Rights Act.
In other words, it was only the VRA (including its preclearance provision) that prevented discriminatory voting changes from being enacted and enforced.
In the court’s analysis of the law’s elimination of one of two Sunday early voting days (which were used as “souls to the polls” voting turnout efforts by African Americans), the judges pointed to North Carolina’s own attorneys’ explanation to the lower court of why the state did this. Among other things, the state claimed it had an interest in more uniform rules across the state, and not all counties had Sunday early voting. The attorneys elaborated on its justification, noting that counties with Sunday early voting in 2014 were disproportionately African American and disproportionately Democratic. The Fourth Circuit judges called this as close to a smoking gun as we’re likely to see in modern times.
Using race as a proxy for party may be an effective way to win an election. But intentionally targeting a particular race’s access to the franchise because its members vote for a particular party, in a predictable manner, constitutes discriminatory purpose. This is so even absent any evidence of race-based hatred and despite the obvious political dynamics. A state legislature acting on such a motivation engages in intentional racial discrimination in violation of the Fourteenth Amendment and the Voting Rights Act.
In 2008 and 2012, the state’s more open voting laws empowered more African Americans to vote. Armed with this knowledge, and soon after Shelby County, the state legislature took action to adopt the laws being challenged in this case. The discriminatory intent was transparent, but with a wink and a nod, conservatives devised rationales for the restrictions. The Fourth Circuit today rejected those rationales and recognized that these were all “solutions in search of a problem.” Those bogus explanations may not get probed very deeply by the media, but it is harder to get away with the “wink and nod” approach before an effective federal court. All three judges agreed that the provisions were adopted with the intent to discriminate, in violation of the Constitution. (One of the judges would have sent the case back down to the district court to see if post-enactment changes to the voter ID law affected the court’s legal analysis.)
Although the court could have used the unconstitutional motivation as a basis to impose a preclearance requirement on the state, the judges concluded that would not be necessary in this case.
If you ever wonder if courts matter, think about this case. We need fair and independent courts with highly qualified judges to protect our rights and our democracy. Courts matter immensely, as does the identity of the president who nominates federal judges to the bench.