The North Carolina law passed on party lines in 2013, soon after the Supreme Court gutted the provision of the Voting Rights Act that required certain states and localities with a history of voting discrimination to submit changes in voting law to federal “pre-clearance.” The measure reduced early voting, ended same-day voting and registration, nixed the counting of votes cast in the wrong precincts, and ended early registration for teenagers.
The NAACP, the American Civil Liberties Union, the Obama Justice Department, and other groups are suing to have the law overturned on the grounds that it disproportionately dis-enfranchises minorities. Section 2 of the Voting Rights Act still bars policies that have the effect of denying or abridging voting rights of minorities, though the burden of proof is on the challengers.
The outcome of the lawsuit — which could go on to the High Court — will help define what that remaining piece of the Voting Rights Act really means, and how it may be applied against other voting restrictions around the country. I spoke to Chris Brook, the legal director of ACLU North Carolina, one of the lawyers on the case; a lightly edited and condensed version of our conversation follows.
THE PLUM LINE: The resolution of this case is coming at around the time of the 50th anniversary of the voting rights act. What is the larger meaning of that?
CHRIS BROOK: It goes to show that these issues that have been defining for our democracy for 50 years, and for a lot longer than that, remain challenges that we have to meet today. It’s disappointing that we have to fight voting restrictions in 2015, but it’s important to put it in the broader context of the struggle that’s been going on in the south for a long time.
PLUM LINE: What is the case against the North Carolina law?
BROOK: It makes it more difficult for all North Carolinians to vote, but in particular for racial minorities in our state. Beyond that, the legislature knew full well, when they passed this raft of voting restrictions, that it would make it more difficult for African Americans to vote. Yet they plowed forward despite that fact. We’re challenging these measures pursuant to the 14th Amendment to the U.S. Constitution as well as Section 2 of the Voting Rights Act.
PLUM LINE: The judge in this case is trying to determine whether the impact of the law is discriminatory or merely inconveniencing. It seems like proving discrimination is a high bar.
BROOK: There’s grounds for optimism, because over the course of the trial, we were able to put on a strong case featuring dozens of North Carolinians who were disenfranchised in 2014. These restrictions are not mere inconveniences. They resulted in many North Carolinians not being able to vote.
More than 1,000 North Carolinians cast out-of-precinct provisional ballots in 2014 that previously would have been counted and were not counted. Approximately 11,000 North Carolinians registered to vote during the same-day registration window in 2014. They were not able to participate. This is something that has kept North Carolinians from voting.
PLUM LINE: But don’t you have to prove discrimination?
BROOK: You need to prove that there’s been a discriminatory effect, and that there’s been a burden placed on African Americans and their efforts to exercise the right to vote. We think we’ve been able to show that. The legislature had data when it was considering the bill that indicated that African Americans relied upon out-of-precinct voting, same-day registration, and early voting, disproportionate to the broader community in North Carolina.
We were able to show through the course of the trial that there has been heavy reliance upon those means of exercising the right to vote by the African American community. We contextualized why those measures have been so heavily replied upon by the African American community.
PLUM LINE: What’s the absolute best case scenario here? What could victory here mean in the long run?
BROOK: Our hope would be to get reinstituted the voting practices that hundreds of thousands of North Carolinians relied upon during the last decade.
If the robust interpretation of Section 2 holds sway, that is going to result in the invalidation of many voting restrictions that we’ve seen considered and adopted by state legislatures in recent years. In turn, that will make politicians more thoughtful about establishing a rationale as to why changes in voting procedures are necessary.
PLUM LINE: What is the absolute worst case scenario? What could a loss here mean nationally?
BROOK: The voting restrictions in North Carolina have been called “the mother of all voter suppression bills.” If such legislation is found to comport with the the 14th Amendment and Section 2 of the Voting Rights Act, that could easily encourage other state legislatures to adopt similar voter restrictions in other states.
Right now North Carolina is an outlier. But if these measures are allowed to stay in place, it might not be an outlier for very long. That would be devastating. The Voting Rights Act was one of the monumental steps forward for our democracy in the 20th Century. We should stand together to ensure it continues to serve its purpose of allowing all Americans to access the right to vote in the 21st Century. We shouldn’t take steps back now.