Democracy Dies in Darkness

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Republicans are making ‘voter fraud’ a weapon so that they never lose again

North Carolina's gubernatorial race is corroding the system.

By Earls Anita

December 2, 2016 at 11:00 AM

North Carolina Gov. Pat McCrory (R), with his wife, Ann, by his side, tells supporters on Nov. 9 that the results of his contest against Democratic challenger Roy Cooper will be contested. (Jonathan Drake/Reuters)

On Nov. 8, North Carolinians went to the polls and chose a new governor: Democrat Roy Cooper. Cooper defeated incumbent Gov. Pat McCrory by more than 10,000 votes. It's a clean win that should bar a recount.

Despite this, McCrory and other Republican Party officials are engaging in an effort to subvert the election results by tainting them with unfounded allegations of widespread voter fraud and elections officials' misconduct. Doing so is not only dangerous, but it also creates the perception that the election results are unreliable when they are not, and it fuels future legislative efforts to disenfranchise voters. This week's vote by the North Carolina State Board of Elections to grant the McCrory campaign's request for a recount of 90,000 votes in Durham County illustrates how merely claiming that the results "look suspicious" leads to public distrust and encourages a witch hunt for nonexistent "irregularities."

McCrory originally announced he was filing protests in 51 counties. But so far, his legal team has only filed challenges in a third of North Carolina's 100 counties. He has targeted areas that are predominantly African American. These protests take three basic forms — that a voter is a felon, that a person who voted early died before Election Day or that a person voted in two states.

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From attending these hearings, we saw that the individuals who filed the protests did not have any personal knowledge of the voters they were challenging. It's not as though they knew their neighbor died or was convicted of a felony or that they overheard someone at a cafe bragging about voting in two states. Instead, political operatives are using publicly available databases to cross-reference names of voters and people with felony convictions, people who have died, and people who voted in other states. The felony protests in particular tend to challenge the votes of minorities disproportionately and are often submitted without any sort of verification that the person being challenged is the same person found in the amateur database searches. The databases often have wrong information about the nature of a conviction. Having a felony charge does not disenfranchise someone if they end up pleading guilty to a misdemeanor. Using unreliable data results in large numbers of false positives.  Nevertheless, local officials are then enlisted to challenge individual voters based on this unreliable information.

The effort is highly organized. Challengers are using a template to file complaints. Descriptions and reasons are the same, word for word. And in most cases, local election officials have dismissed the protests as meritless. Every accusation of a "dead voter" has proved to be a vote cast by a living person who voted — either during early voting or by an absentee ballot — and then died. Unfortunate but not fraudulent.  Those handful of votes were removed from the final count.

When examined, most claims regarding felons voting were incorrect. Some instances were cases of mistaken identity. In other cases, people had felony convictions but had completed their sentences and had their rights restored. Many of the allegations are easily disputed with a few minutes of Internet research by verifying someone's date of birth to show the voter is a different person from the person with a felony conviction, or by finding out whether they have served their full sentence and determining their date of registration. In North Carolina, once people with a felony conviction serve their sentence, they are legally entitled to re-register and vote.

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Even obviously legal votes are being challenged. Wake County voter Francis De Luca, who also heads the Civitas Institute, filed a lawsuit last week aimed at throwing out the votes of people who registered and voted during early voting in North Carolina. Same-day registration was reinstated when the U.S. Court of Appeals for the Fourth Circuit struck down the state's voter suppression law this past summer. The court found that the law eliminating same-day registration targeted African Americans with "almost surgical precision."

But even though the complaints are dismissed, the damage is done. Not only are legitimate voters tarnished with having committed voter fraud in public documents available to all, but doubt has been cast over an election for no reason.

Why does all of this matter?

First, if North Carolina's gubernatorial election results are considered "contested," there's a mechanism for the candidates to ask the state legislature to choose the victor by a majority vote. The statute giving the legislature that power also provides that no court can review their decision.  Although there is no evidence of any problems with the statewide election returns, stoking doubt is an obvious effort to create the appearance that the election results are fairly contested. They are not.

Second, claiming voter fraud without any supporting evidence is dangerous. Free speech is protected, but one cannot yell "fire!" in a crowded theater. It's dangerous. So, too, is making an allegation of election fraud with no solid evidence. It causes irreparable damage to the public's faith in the democratic process.

Third, we have already seen a willingness for state legislators to run roughshod over minority voters. And despite a federal court rejecting North Carolina's previous voter suppression efforts, we expect to see more attempts to deprive people of their right to vote in the next legislative session. Undoubtedly, fears stoked in this election will be used to push those regressive changes through the legislative process.

What we are seeing right now in North Carolina is not new. Improper purges of legal voters using database matches of voter rolls with lists of people with felony convictions and people who have died was the subject of extensive litigation in Florida after the 2000 presidential election. This time as well, it is a systemic effort to undermine a specific election with the added benefit of disenfranchising African American voters disproportionately. It's also a test. It will determine who will prevail in the battle over whether people of color and other underrepresented voters such as youths, people with disabilities, the homeless and students will be able to cast a ballot and have that vote counted. All of this appears to be part of a national effort to test the limits of legally permissible disenfranchisement, and North Carolina is ground zero.

It's time to move past the dangerous rhetoric being used by McCrory and his allies to disparage the election results. Only then can we focus on the real threat to democracy in North Carolina — the continual effort to keep people of color and others from fairly and equally participating in civic life.


Anita Earls is Executive Director of the Southern Coalition for Social Justice in Durham, North Carolina, a voting rights attorney, and a former member of the North Carolina State Board of Elections.

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