This column by ACRU Policy Board member Hans von Spakovsky was published April 27, 2016 by Conservative Review.
In a thoroughly-researched, detailed, and massive 479-page opinion issued April 25, federal district court Judge Thomas D. Schroeder ruled in favor of voter ID and other election reforms in North Carolina. The U.S. Justice Department is thus 0 for 2 in the Carolinas, having previously lost its litigation battle against South Carolina’s voter ID law in 2012.
The case before Judge Schroeder was actually a consolidation of three separate lawsuits filed against North Carolina by the Justice Department, the NAACP, the League of Women Voters, Common Cause and a host of other plaintiffs. They claimed that election reforms passed by the North Carolina legislature in 2013 were unconstitutional and violated the Voting Rights Act.
The reforms in question included requiring a valid photo ID (and providing a free ID to voters); reducing the number of early voting days from 17 to 10 but extending voting hours; eliminating same-day registration and preregistration by 16- and 17-year-olds; and requiring voters to vote in their assigned precincts. The court held two trials, one on voter ID and another on the other reforms, and heard from 21 experts and 112 fact witnesses. The record in the case was close to 26,000 pages.
The claims made by DOJ and the Obama administration’s political allies boiled down to this: all of the reforms were discriminatory, either intentionally or in effect, and would suppress the votes of African-Americans, Hispanics and the young. The judge refused to issue an injunction when the lawsuits were first filed, which left most of the changes in effect for the 2014 election. (The voter ID requirement is in effect this year.) This wound up severely damaging the plaintiffs’ case, because turnout increased in both the primary and general elections of 2014 — the exact opposite of what the plaintiffs and their experts claimed would happen.
Judge Schroeder’s lengthy opinion contains a devastating critique of the supposedly “expert” testimony offered by witnesses hired by the plaintiffs. He points out errors and other serious problems with their analyses, such as the ”no-match list” prepared by one expert — the number of registered voters who supposedly didn’t have an ID — as raising “serious questions about its reliability.” Another expert’s testimony for the plaintiffs “was of limited practical assistance” because “it was heavy on theory and light on facts.”
The unsupported opinion of another “expert” (a professor and former Democratic congressional candidate from Maryland) that the voting changes were discriminatory was “disregarded” by the court because “his approach was single-minded and purposefully excluded evidence that contradicted his conclusions.” This expert “presented as an advocate, leaving the court at a loss for where facts left off and advocacy began,” leading the court to question his “credibility.” Concerns that voters would have problems meeting the law’s requirements were “not well-founded,” the judge observed.
After an exhaustive review of the evidence, Judge Schroeder concluded that the plaintiffs failed to prove their claims under the Voting Rights Act or the Constitution.
In the interests of full disclosure, the judge devoted three pages summarizing and favorably citing testimony I gave before the North Carolina legislature in favor of voter ID when the original bill was being considered in 2013 (pages 387-389).
The judge found it significant that the very small percentage of North Carolinian voters who could not be matched to a qualifying ID was even fewer than the number in South Carolina — and South Carolina’s ID law had been upheld by a three-judge panel. Moreover, the judge noted, any voter who fills out a declaration stating that a “reasonable impediment” had prevented him from obtaining a photo ID is allowed to vote anyway. He further observed that North Carolina’s “voter outreach and education efforts” to make voters aware of the “ID requirement and its reasonable impediment exception have been substantial.”
After an exhaustive review of the evidence, Judge Schroeder concluded that the plaintiffs failed to prove their claims under the Voting Rights Act or the Constitution. In fact, the evidence showed that voter ID “will not impose a material burden on minority voters or deprive them of an equal opportunity to participate in the political process.” Indeed, the evidence established that all of the other reforms would provide North Carolina’s minority voters “an equal opportunity to participate in the political process.” In fact, the state’s registration and voting options “remain more than adequate to provide an equality of opportunity to all groups of interested citizens.”
The judge’s most important conclusion is that the state had “legitimate, non-discriminatory justifications” for its election reforms that were consistent with “achieving integrity, uniformity, and efficiency in the political process.” The judge stated:
Collectively, the changes were designed to make early-voting locations more numerous and evenly distributed and voting hours more uniform; reduce the number of individuals who forego traditional registration (where they can be subjected to statutory mail verification) and instead register and vote too close to Election Day such that their vote is counted despite later failing mail verification; re-establish the benefits of a precinct-based [voting] system…; reduce voter confusion among [16- and 17-year-old] preregistrants; and, as recognized in Crawford [where the U.S. Supreme Court upheld Indiana’s voter ID law as constitutional], promote the integrity and reliability of the electoral process while increasing public confidence in North Carolina’s electoral system through implementation of a voter-ID requirement. These are legitimate and consistent interests.
As the judge pointed out: “The evidence shows that African Americans have fared better in terms of registration and turnout rates in 2014, after the new law was implemented, than in 2010, when the old provisions were in place.” In fact, currently “African Americans hold a commanding lead over all other races in voter registration (e.g., 91.2% African American vs. 83.4% white). Since the 2013 law has been in place, “African American turnout not only increased but did so at a greater rate than that of other groups (including whites).”
According to the judge, “the 2014 general election saw the smallest white-African American turnout disparity in any midterm election from 2002 to 2014.” This “seriously undermine[d]” the plaintiffs’ claims and “these facts may surprise some, including Plaintiffs’ experts (who predicted the opposite before trial)…” As the court emphasized, “…the 2014 data permit this court to stop speculating and observe real life results.”
The court also made another important point. The judge said that “the fact that voting can almost always be made easier does not render a State’s failure to do so, or a State’s repeal of a convenience or ‘failsafe,’ unlawful or unconstitutional per se.” With “every relaxation of the rules there is often an attendant trade-off or effect on verification and election integrity. The State demonstrated as much here.”
The plaintiffs, including the Justice Department, opposed North Carolina’s election system as changed by the 2013 reform law because “they preferred one that they say was even more convenient” than the very liberal system the state already has. Different degrees of “convenience” do not constitute a violation of the law or the Constitution. And the plaintiffs’ claims that North Carolina’s action was the result of “vestiges of historical official discrimination is rebutted by the facts.”
The Justice Department and the other plaintiffs certainly have the option to appeal this decision to the U.S. Court of Appeals for the Fourth Circuit, but it will not be easy for an appeals court to overturn such a thorough, fact-heavy legal analysis.