Thoughts on the Road Ahead in North Carolina

Today North Carolina’s governor signed one of the most restrictive voting laws in the Nation. I have been trying to think of another state law passed since the 1965 Voting Rights Act to rival this law but I cannot. It is a combination of cutbacks in early voting, restrictions on voter registration, imposition of new requirements on voters such as photo identification in voting, limitations on poll worker activity to help voters, and other actions which as a whole cannot be interpreted as anything other than an effort to make it harder for some people—and likely poor people, people of color, old people and others likely to “skew Democratic”—to vote.

And yet I don’t expect that the entirety of this law will fall through one of the lawsuits filed or to be filed against it.

I have seen one complaint, which raises constitutional equal protection arguments and arguments under Section 2 of the Voting Rights Act. This attack could well get some portions of the law knocked out. But it likely won’t get many of the major provisions knocked out. The sad truth (and why it was such a big deal when the Supreme Court decimated Section 5 of the Voting Rights Act) is that Section 2 suits are very hard for plaintiffs to win outside the redistricting context.  I don’t think there’s been a successful Section 2 challenge to a voter id law, and it will be hard to see one here.

Some of the constitutional claims could well succeed, including those attacking early voting.  I was skeptical of some of the constitutional attacks on Ohio’s cutbacks of early voting in 2012, but courts came in and responded the the Republican overreach on voting rules with a kind of backlash I’ve described here.  We could also get some surprises in the state lawsuit.  I don’t know enough about North Carolina’s constitution or the state of North Carolina’s judiciary yet to hazard a guess on how they might respond to this law.

The attempt to get North Carolina bailed in to preclearance under Section 3 is a long shot, and it will require some proof that the State has been engaging in intentional racial discrimination in voting. Maybe those attacking the law will find some smoking gun in discovery; but these days those legislators with racist intentions are unlikely to put their thoughts in email (though you never know).

If the United States Supreme Court gets involved, I would not count on them to protect minority voting rights.

Te bottom line is that the way to fight much of North Carolina’s strict law is not legally but politically. And that’s part of the impetus for the lawsuits as well.  Even if they are not wholly successful, they will keep the issue in the news. Without a compelling anti-fraud, efficiency, or voter confidence story to tell about this set of draconian laws, and with statistics showing that some of the provisions here could well impact minority voters, defenders of this law could well see their own backlash.

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