Inside The Case: Why Federal Appeals Court Put Some NC Voting Changes On Hold

Oct 2, 2014

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Federal appeals court judges ruled Wednesday the U.S. Justice Department is likely to succeed in its argument that North Carolina's election overhaul will deny or curtail African-Americans' right to vote. The appeals court ordered North Carolina to put some changes on hold this November. WFAE's Michael Tomsic joins us now to explain why.

First, which parts will be put on hold?

Eliminating same-day registration and no longer counting ballots cast in the wrong precinct. North Carolina will still be allowed to shorten its early voting period from 17 days to 10. The judges ruled changing that would be too big a burden this close to the election.

A federal district court judge had ruled all those changes could go forward this November. Why did the federal appeals court disagree?

Even though the district judge, Thomas Schroeder, accepted that getting rid of same-day registration and out-of-precinct ballots would disproportionately impact African-Americans, he ruled that doesn't mean there'd be "an inequality of opportunity."

The appeals court judges say he's wrong. They cite a recent ruling by another federal appeals court, which said taking away something minorities disproportionately rely on in Ohio would lead to unequal opportunity.

They also cite a Supreme Court case in which Justice Antonin Scalia wrote:

If, for example, a county permitted voter registration for only three hours one day a week, and that made it more difficult for blacks to register than whites, blacks would have less opportunity “to participate in the political process” than whites, and (the Voting Rights Act) would therefore be violated . . . .

The appeals court judges say the North Carolina case "looks precisely like the textbook example" Justice Scalia provided.

The district court judge was also concerned about setting a precedent for other states. How did the appeals court address that?

They downplayed it. Part of the reason district Judge Schroeder decided not to make North Carolina keep counting out-of-precinct ballots, for example, is that the majority of states don't count them. He wrote that forcing North Carolina to could end up making a lot other states do the same.

But the appeals court judges say Schroeder made a "grave error" by failing to understand that Voting Rights Act cases are intensely local - you have to consider all the circumstances of voting challenges case-by-case. The judges say North Carolina's history of voting discrimination matters as part of those circumstances.

Is this a final decision on whether North Carolina's changes are constitutional?

No, it's an injunction against the law until a full trial next summer. That trial will determine whether the changes do, in fact, violate the Voting Rights Act and discriminate against African-Americans. (That trial will also include challenges to the photo ID requirement that starts in 2016.) For now, the plaintiffs had to show a likelihood of success and demonstrate irreparable harm this November.

How important is intent to the lawsuits?

The judges did take aim at how lawmakers passed the changes. The bill started out focused on voter ID. But then the Supreme Court struck down part of the Voting Rights Act that had required North Carolina to get federal approval before making voting changes.

The appeals court judges say immediately after that ruling, history "picked up where it left off in 1965," and North Carolina began pursuing a giant election overhaul that lawmakers likely knew they couldn't have gotten past the federal government before.

The appeals court ruling was two to one. What did the dissenting judge say?

She said that although she shares some of her colleagues concerns, she does not believe the plaintiffs have shown a clear likelihood of success on their claims.

She also said there could be more harm caused by changing election procedures this close to November.

The election is only a month away. How difficult will the changes be to implement?

The director of the Mecklenburg County Board of Elections, Michael Dickerson, says it actually won't be hard for the county to retrain its workers on same-day registration and out-of-precinct ballots.

"It's something that we have done in the past six years, I guess, before this," he says. "The one election that we didn't do it was this past May. We should be able to easily accommodate the training aspect of it."

Lastly, is the state appealing?

The state will appeal to the U.S. Supreme Court and ask for a stay on Wednesday's ruling.