Federal district court judge Thomas Schroeder has issued this 485-page opinion considering constitutional and Voting Rights Act challenges to North Carolina’s 2013 restrictive voting law (which I have discussed in a number of places including this Harvard Law Review forum piece, Race or Party?: How Courts Should Think About Republican Efforts to Make it Harder to Vote in North Carolina and Elsewhere). This is a careful, erudite, yet controversial opinion which will almost certainly be appealed to the United States Court of Appeals for the 4th Circuit, which could well reverse parts of it, and then potentially to the United States Supreme Court, where the Court could well deadlock 4-4 (leaving any 4th Circuit ruling in place). And all of these appeals will have to happen in short order for it to affect how the 2016 elections take place under the Purcell principle.
Here is my overall impression having read/skimmed the 485 pages: the judge does a very thorough job going through the evidence of the law’s burdens on voters and the state’s interest in passing the law. The judge goes into the evidence in great detail, but the opinion reads like someone who is very, very skeptical of the plaintiffs’ arguments, and very forgiving in terms of the state’s interests. The aspect of the opinion I found particularly weak is his discussion of whether the state had good reasons for the voting cutbacks, which are the greatest set of election rollbacks in a single bill that i know of at least since the passage of the 1965 Voting Rights Act. It is pretty clear that the North Carolina voting law was partisan legislation enacted to help Republicans; but the judge barely discusses the role of partisanship, except to note (on page 468) partisan by Democrats in an earlier bill to allow out-of-precinct voting. And part of this is exacerbated by the “race or party” question. The judge has to look at this through the lens of race, at least for Voting Rights Act purposes. A better approach would be to say (as I argue in the Harvard piece and elsewhere), that when a state makes it harder for voters to vote, the question should be whether the state has a good reason for burdening voters. And that’s where the tenuousness of many of the state’s arguments come in.
The chances on appeal may well depend upon the 4th Circuit panel draw. Republicans and Democrats tend to view these facts through different lenses, and judges are no different—not because they want to vote to help “their party,” but because they are predisposed to see facts in different ways. Nonetheless, even with a Democratic-leaning draw, the judge made a number of factual findings adverse to the plaintiffs which are supposed to get great deference by the appellate courts. [Update: See this post on the panel likely to get the appeal in this case.]
If the case gets to the Supreme Court, we could well see the same dynamics in play.
The court’s key conclusion about the nature of the claims comes near the end of the case:
In short, North Carolina has provided legitimate State interests for its voter-ID requirement and electoral system that provides registration all year long up to twenty-five days before an election, absentee voting for up to sixty days before an election, ten days of early voting at extended hours convenient for workers that includes one Sunday and two Saturdays, and Election Day voting. Plaintiffs oppose this system because they preferred one that they say was even more convenient – which they used disproportionately during certain elections – and point to some fraction of voters who did not vote or register. Plaintiffs’ contention that such voters did not do so because of vestiges of historical official discrimination is rebutted by the facts. There is strong evidence that some other reason is at play for the failure of these persons to register and/or vote. The unprecedented gains by African Americans in registration and turnout, both during and even in 2014 after SL 2013-381, bolster this conclusion. While the consideration is clearly local and practical in nature, based on North Carolina’s unique facts, it would no doubt bear relevance if North Carolina were seeking to return to an electoral system that was not in the mainstream of other States. It is not.
For all these reasons, Plaintiffs have failed to demonstrate that Defendants have violated § 2 of the VRA or the Fourteenth, Fifteenth, or Twenty-Sixth Amendments to the United States Constitution.
Here are some additional thoughts about the judge’s opinion.
- The judge engaged in extensive fact finding about the extent of the burden of the voter identification law, especially as it has been “softened” by the “reasonable impediment” exemption from the law. The court spends dozens of pages discussing the efforts the state has made to roll out and educate about the voter identification law, as well as how the reasonable impediment law would allow certain voters to vote without providing voter identification. The judge concludes that although some voters faced burdens getting identification under the state’s rules, not that many voters would face these burdens (and many fewer people lack the id than the plaintiffs claimed), and many of the burdens that such voters face would be alleviated by being able to vote under the reasonable impediment exemption. These factual findings increase greatly the chances of the voter identification aspect of the law being upheld on appeal, and certainly they would alleviate the concerns of the four more conservative Supreme Court justices. It turns out that on the ground the reasonable impediment exemptions and similar exemptions have not worked as well and as evenly as supporters of the laws say. See my Softening Voter ID Laws Through Litigation: Is it Enough?, Wisconsin Law Review Forward (forthcoming 2016) (draft available). It is not clear to me if the case would allow for a follow up suit based on how the reasonable impediment exemption is applying in practice.
- The judge also looked at evidence of North Carolina’s other rollbacks, such as the cutback in early voting, finding it did not decrease turnout, either generally or among racial minorities. (“In sum, the court has evaluated all of the evidence surrounding the impact resulting from the change in the early-voting schedule. In light of the same-hours requirement, the evidence does not demonstrate that the new early-voting schedule results in a reduced opportunity to vote or imposes a burden on voters. Nor does the evidence show that the new schedule disparately and negatively impacts the political participation of African Americans, Hispanics, or young voters.”) Findings like this are subject to deference on appeal. (The judge makes similar findings about the effects of the elimination of same day registration, though concedes there may be a weak effect. He made a more complex finding as to the elimination of pre-registration for 16 and 17 year olds: “In sum, the evidence shows that pre-registration increases youth turnout. However, although African Americans used pre-registration disproportionately compared to whites in North Carolina, the evidence also establishes that pre-registration does not disproportionately benefit one race over the other. (Pl. Ex. 235 at 24.) In addition, while the evidence explains why pre-registration increases turnout, it does not explain why African Americans are more likely to pre-register or why the other means of registration are less available to African Americans than other groups.”)
- After a few hundred pages of detailed factual findings, many of which dispute the evidentiary findings and tests performed by plaintiffs’ experts Charles Stewart, Paul Gronke, and Barry Burden, the court turned to the legal issues. The court said it was applying the 4th Circuit’s test for Voting Rights Act section 2 vote denial cases, and under that test found that the totality of the circumstances did not lead the court to conclude that protected minority voters have less opportunity than others to participate in the political process and to elect representatives of their choice. This is the finding which would be most vulnerable to being overruled by the 4th circuit on appeal. However, given the detailed negative factual findings of the trial court, this may be a difficult task. (Here is a key conclusion of the court: “In sum, when increased minority participation correlates with the availability of so-called convenience voting procedures,134 it is some evidence that they are fostering the increased participation. But when minority participation increases despite the unavailability of such mechanisms, the causal inference is rebutted, especially where Plaintiffs have failed to show what turnout and registration rates would have been in 2014 had the conveniences been available. Such is the case here.”)
- On the question of North Carolina’s history of racial discrimination, the court concludes: “There is significant, shameful past discrimination. In North Carolina’s recent history, however, certainly for the last quarter century, there is little official discrimination to consider.” And this finding, which will be hotly debated: “Therefore, Plaintiffs have demonstrated that African Americans and Hispanics in North Carolina are disproportionately likely to move, be poor, less educated, have less access to transportation, and experience poor health. There was no showing that Hispanics suffer these as a result of historical discrimination. However, there was a showing that the socioeconomic disparities experienced by African Americans can be linked to the State’s disgraceful history of discrimination.” And: “In sum, Plaintiffs established that some segment of the State’s African Americans endure socioeconomic disparities that can be linked to State discrimination and this may make it more difficult for them generally to participate in any electoral system. Plaintiffs, however, failed to show that such disparities will have materially adverse effects on the ability of minority voters to cast a ballot and effectively exercise the electoral franchise after SL 2013-381 within the multitude of voting and registration options available in the State, especially given that the 2014 turnout data show increased participation among African Americans under SL 2013-381.”
- On the need for the voter id law to prevent voter fraud, the court says first that it is hard to find impersonation fraud without an id requirement, but more importantly the Supreme Court in the Crawford case said there need not be evidence of impersonation fraud to justify the law. So while the plaintiffs have to present tons of evidence of burden, the state can get by with no evidence of a need. (This seems perverse to me.)
- The court also finds that the state did not act with discriminatory intent, citing (without an appreciation for irony) at p. 387 the testimony of Hans von Spakovsky to the legislature on the need for this restrictive law. Whether or not his testimony was true, the court says, the legislature could have believed it true, thereby negating possibility of discriminatory intent.
- The court, in much shorter sections of the opinion, rejects a number of constitutional claims, including equal protection and violation of the 26th amendment (claiming discrimination against young voters). The equal protection analysis mostly tracks the VRA analysis.
[This post has been updated.]