North Carolina's new restrictions on voting may favor the Republican Party, but Democrats must prove more than that to beat them in court.
GOP legislators who passed the rules last summer say they are designed to streamline and modernize the state's voting while also blocking election fraud, a problem they describe as rampant and undetected.
Opponents – including U.S. Attorney General Eric Holder – say the claims of fraud are a ruse and that the laws are part of a national campaign by conservatives to suppress voting by minorities, the poor and the young. Those groups are part of an emerging Democratic coalition that swung North Carolina to President Barack Obama in 2008 and came close again four years later.
Who wins in court may hinge on whether judges believe Republicans were motivated by politics or race. In other words, have black voters been discriminated against? Or were they legal targets of hard-ball GOP politics?
For now, what Republicans describe as reforms, critics call "the Monster Law."
Election expert Rick Hasen says the voting package amounts to "the largest and most restrictive" set of election laws put in place in the half-century since Congress approved the Voting Rights Act.
"You see pieces of what North Carolina has done in other states," says Hasen, a professor of law and political science at the University of California-Irvine. "But you can't find a package like this anywhere else."
The changes include everything from requiring voters to present a government identification card, to cutting back the days – but not the hours – of early voting. They also eliminated same-day registration and put new restrictions on voters who turn up in the wrong precinct.
Some of the new laws will start next year. The voter ID takes effect in 2016, when the state helps elect a new president.
The changes follow general elections in 2008 and 2012 where, with Obama at the top of the Democratic ballot, the percentage turnout of the state's African-American voters exceeded that of whites.
A disproportionate number of black residents used early voting, which has been cut back by a week. Grass-roots efforts to get out the black vote relied on the state's annual voter drive and same-day registration, which allowed residents to register and vote early at the same time. Both have been eliminated.
Corine Mack, a Charlotte community activist, says the new laws present an obstacle to some voters, but it's too early to say how big.
Similar cuts to early voting in Florida last year led to some of the country's longest waits at the polls on Election Day, critics say.
"No matter, we have to find a way to overcome it," Mack says. "Each individual in this community has the responsibility to remind their people, their mothers and fathers, sons and daughters, aunts and uncles and co-workers, that they have to get out and vote. It's that simple."
Four lawsuits attack the new voting laws on legal and constitutional grounds. Holder and other groups behind them say the new measures violate the 14th Amendment's "equal protection" statute and the Voting Rights Act.
Yet a key question confronts them: Can they prove it?
'A reasonable chance'
A major part of the federal challenges by Holder and a list of North Carolina groups hinge on whether they can convince judges that GOP lawmakers "intentionally discriminated" against minorities.
In the past, North Carolina and other Southern states covered by the Voting Rights Act bore the weight of showing the federal government or the courts that their election changes did not hurt African-American voters.
But in June, the U.S. Supreme Court, in throwing out the so-called "preclearance" requirement of the Voting Rights Act, flipped the burden of proof. Now, Holder and the other groups must prove that the North Carolina legislature intended to discriminate in passing the election laws, and that makes their lawsuits harder to win.
Hasen, author of "The Voting Wars," says the court fights here will serve as a test case.
"Republican legislatures in the South will be watching very closely to see what they will be allowed to do," he says. "Because of some of these provisions, I think the opponents have a reasonable chance. But I'm not overly optimistic."
John Hood, executive director of the conservative John Locke Foundation in Raleigh, says the lawsuits have a better chance of rousing Democratic voters than they do of winning in court. How can North Carolina's Voter ID law be illegal, he asks, if more than 30 states already have one?
"Everybody who is legally entitled to vote in North Carolina remains legally entitled to vote," Hood says. "This is a collection of tenuous claims that they're trying to turn into something else because they have a long list of them."
The battle in Texas
Holder has filed a similar challenge against the Texas voter ID law, and his Justice Department has joined the fight against that state's congressional and legislative redistricting plan.
The government's case in Texas potentially has been strengthened by an earlier federal court ruling that the state's redistricting plan wrongfully singles out Latinos and other minorities. The finding of "discriminatory intent" has also been bolstered by the discovery of anti-Latino emails sent by legislators while the district lines were being drawn.
No such court ruling or rhetorical "smoking gun" exists for now in North Carolina. Here, Republicans continue to say that their only motive is to protect the vote.
"You have to, in America, have a picture ID for nearly everything you do that's of importance," said state Sen. Jerry Tillman of Archdale. "What could be more important than the voting process? We're trying to put the integrity back."
Citing the court cases, N.C. Sen. Bob Rucho, a Matthews Republican and a key figure in drafting the voting package, declined comment. But in a Oct. 10 newsletter sent to his constituents, Rucho said the voting changes "restore transparency ... and bring us in line with a majority of other states' election laws."
The charges of voter fraud are not borne out by the statistics. In the 2008 general election, state voting officials referred 310 cases for prosecution out of 4.5 million votes cast.
Critics of the laws, both in their court filings and in their comments, say Republicans had ulterior motives.
Sonya Bennetone of Wilmington, a board member of the advocacy group Democracy North Carolina, said she met with Sen. Thom Goolsby to discuss the voter ID before the legislative session.
"We told him it was discriminatory before it was even written," she says. "I guess he thought we were stupid. He said he was protecting our rights."
Hasen, who will speak at N.C. State University this month on the state's new laws, says a court decision in the voting fight has been complicated by the overlap of race and politics. Republicans predominantly are white. Most African-Americans in North Carolina and elsewhere vote Democratic. Are GOP policies partisan or discriminatory?
"We've never had to choose one or the other," Hasen says. "But today, given the way our laws are structured and interpreted by the courts, it matters a great deal if a case goes in the 'race box' or the 'party box.'
"If it's seen as partisan politics, there is no remedy."
A changing line
As in Texas, the fine line between politics and race already is playing out in the North Carolina courts.
In July, a three-judge panel unanimously approved the Republicans' redrawing of the North Carolina congressional district lines.
Critics claimed that the maps hurt minority voters by moving thousands of them into districts that already housed large African-American populations. Rucho and other GOP lawmakers argued that the new maps followed rules set out by the courts, and that partisan politics, not discrimination, was the catalyst. The court agreed.
"Political losses and partisan disadvantage are not the proper subject for judicial review," the judges wrote. The case has been appealed to the state Supreme Court.
Four lawsuits, three of them in federal court, have been launched against the new voting laws. The one state court complaint alleges that the new Voter ID provision violates a North Carolina constitutional ban on adding qualifications to voting.
Hood disagrees, saying the ID will only serve as proof that a resident meets the existing requirements of being a legal resident who is properly registered to vote.
The federal complaints, which are expected to be consolidated, follow similar lines. Holder's, the most recent, claims that the election package violates Section 2 of the Voting Rights Act, which bans laws that intend to discriminate against minorities or have that impact.
Secondly, Holder asks that North Carolina be returned to "preclearance" status, meaning that any election changes must first get the go-ahead from the feds or the courts. Section 3 of the Voting Rights Act authorizes such a move for states with recent histories of deliberate discrimination against minorities.
The key word is deliberate, which will be difficult to prove.
"There isn't usually the kind of traditional 'we don't like those people' kinds of language in the record these days," UNC law professor Kareem Crayton told the Huffington Post. "Legislatures are mostly too smart for that."
Anita Earls, a former Charlotte attorney whose Southern Coalition for Social Justice serves as the legal team for in separate lawsuits against North Carolina's voting and redistricting plans, says incriminating comments are not the only evidence that can prove discriminatory intent.
She and other opponents point to the timing and manner of the GOP's moves – allowing a much narrower version of the voting bill to idle for months, they say, until the Supreme Court threw out "preclearance" on June 25. A month later, Senate Republicans substituted the current, sweeping version of the bill, which quickly passed with limited debate during the last days of the session.
Hood, of the Locke Foundation, says the last-minute changes in the bill had nothing to do with the high court's decision. Instead, he believes a majority of lawmakers simply favored the broader changes.
Told of Hood's comments, state Sen. Malcolm Graham of Charlotte laughed out loud.
"Once the court removed the speed bump, the Republicans' bill grew significantly," said Graham, who is African-American. "Once they raised the speed limit, it was full speed ahead for all the other bad stuff they did to the voter bill."
Michael Gordon
The Charlotte Observer