Local News
9:54 am
Fri July 11, 2014

Federal Judge Set To Decide If NC Voting Changes Will Cause 'Irreparable Harm' In November

A federal judge will decide within the next month or two whether to put some parts of North Carolina's sweeping election law on hold. All week in Winston-Salem, the U.S. Justice Department, the NAACP, and other groups tried to convince Judge Thom Schroeder that the changes would deny or curtail African-Americans' right to vote. WFAE's Michael Tomsic covered the hearings in Winston-Salem, which wrapped up Thursday.

What stood out in closing arguments?

Judge Schroeder, who ultimately will make the decision, is clearly trying to figure out what precedent he would set if he put the changes on hold. The U.S. Justice Department is focusing on three of them for now: cutting the early voting period by a week (from 17 days to 10 days) eliminating same-day registration, and no longer counting ballots cast in the wrong precinct.

And Judge Schroeder in his questions to the Justice Department lawyers and others asked, OK, what will this mean for other states? Virginia, for example, does not have early voting or same-day registration. Would it be in violation of the Voting Rights Act if Judge Schroeder ruled that North Carolina's changes are discriminatory? What about other states that have similar history of racial discrimination in the South? Clearly he's trying to walk through what his ruling would mean for other states.

How did the U.S. Justice Department respond?

Lawyers for the Justice Department said it's not just about having early voting or same-day registration – they kept coming back to this idea that it's about taking away something that minorities have come to rely on. So in North Carolina, we've gotten to the point where in the past two presidential elections, about 70 percent of all African-American voters cast their ballots early. In the last presidential election, that compares to about 50 percent of white voters. So African-Americans are disproportionately using these measures, and the Justice Department argues they'll suffer "irreparable harm" if the changes stand.

Another key for the Justice Department is the idea that the provisions in question have been helping to address a historical disparity. In the past in North Carolina, African-American turnout has been much lower. In the past decade – when N.C. has used early voting and some of the other provisions – turnout has surged. So that's part of the reason why Justice Department lawyers say the election overhaul would have a disproportionate impact, which would make it violate the Voting Rights Act.

Have there been examples of states cutting early voting that the Justice Department is OK with?

About three years ago, the Justice Department actually cleared Georgia to cut its early voting period from 45 days to 21 days. Lawyers said that Georgia didn't rely on early voting as much at that time, and there was broad bipartisan support for the changes, including the support of African-American legislators. So in that case, the Justice Department said, those changes are fine.

Let's switch to the state of North Carolina's arguments. What were its lawyers main points?

The state really pushed the idea that what you heard from witnesses all week was mostly speculation and anecdotal evidence. You heard stories about people having a hard time getting to the polls, especially African-Americans, but the state said these are just personal stories – where is the hard evidence that shows those folks won't be able to register, or they won't be able to vote in 10 days of early voting instead of 17 days?

North Carolina's lawyers also pointed out that African-American turnout has increased recently in Virginia – how do we know that the improvement isn't just due to what the lawyers called "the brilliant Obama campaign?" How do we know that there aren't other things leading to increased turnout in North Carolina as opposed to early voting and same-day registration?

And the bottom line for North Carolina's lawyers was that there is no evidence as the law is written that it will prevent someone from voting based on race. If you look at what's explicitly in the law, it does not make changes based on race. Of course, the Justice Department and others say that may literally be true, but the effect of the law will have a disproportionate impact.

The state also argued that reasonable people can disagree about voting policies, and the place to work those disagreements out is in the legislature rather than the courts.

When will the judge rule?

Within the next month or two because the state has to have time to make changes, if there are any, before November. And keep in mind that Judge Schroeder is just ruling on whether to put the changes on hold – not whether they're constitutional. In legalese, it's an injunction, and it's considered "extraordinary relief." The burden has been entirely on the Justice Department and other plaintiffs to show that "extraordinary relief" is necessary.

And Judge Schroeder has options here. He could let all the changes stand, put some of them on hold, or put them all on hold. (He could even go beyond what the U.S. Justice Department is asking – the NAACP, the League of Women Voters and other groups are asking for even more changes to be put on hold.)

And remind us how photo ID fits into all this?

That is also a change the Justice Department says is discriminatory. But it doesn't kick in until 2016, so it wasn't part of this week's hearings.