The SCOTUS Voting Rights Cert Denial and Dog Whistling in NC Politics
Posted on May 19, 2017
The jumble of North Carolina election laws winding through the federal and state courts right now is confusing, even to insufferable law nerds. Following the 2010 census, the North Carolina GOP-controlled legislature enacted a suite of legislation aimed at increasing the likelihood that Republicans would be elected to various political offices. There are two broad categories of North Carolina election legislation: (1) district drawing or “gerrymandering” laws and (2) limits on the time, place and manner of voting. I discussed some of the more important NC gerrymandering cases here.
This week the Supreme Court of the United States (SCOTUS) denied a petition to hear an appeal of one of the “time, place and manner” cases arising out of North Carolina. This means that the decision issued by the Fourth Circuit Court of Appeals, which held the North Carolina law unconstitutional, remains a final and binding order.
The unconstitutional law, known as Session Law (SL) 2013-381, created a prescriptive set of rules for voting that require:
- in-person voters to provide photo IDs
- limited early voting
- outlawed same day registration, and
- limited the use of provisional ballots and a practice known as pre-registration (pre-registering 16-17 year-olds to vote after their 18th birthday at the time they obtain a drivers license)
A group of plaintiffs that included the North Carolina NAACP, several majority African American churches and individuals affected by the law sued the State of North Carolina challenging the law.
In a long, scathing and poingnant opinion, the Fourth Circuit Court of Appeals held that SL 2013-381 was unconstitutional, stating:
… the new [statutory] provisions target African Americans with almost surgical precision, they constitute inapt remedies for the problems assertedly justifying them and, in fact, impose cures for problems that did not exist. …[The Court further stated that it was] faced with a statute enacted with racially discriminatory intent.
In holding SL 2013-381 unconstitutional, the Court made the following findings based on the record evidence:
- The legislature requested and received racial data regarding the usage of the various voting mechanisms prohibited by the law
- This data used by the legislature in crafting SL 2013-381 showed that African Americans disproportionately lack photo ID
- The data used in crafting SL 2013-381 showed that early voting increases voting opportunities for those who have difficulty getting to the polls on election day–a group that is disproportionately African American
- The data used by the legislature demonstrated that African American voters disproportionately benefited from same day voter registration
- Finally, the data given to the legislature confirmed that African American voters disproportionately voted provisionally
Constitutional analysis of election law considers whether voters of a particular race tend to vote in racially polarized patterns. In other words, the Court must consider whether African Americans vote more often for one party or the other. In North Carolina, there is such a trend, with Black voters largely voting for Democratic Party candidates.
Where there is racially polarized voting, political parties are often tempted to manipulate facially neutral voting rules to limit a group’s right to vote. “The political cohesiveness” of minority groups provide “political payoff” for legislatures who dilute or limit minority voting. The Court held:
Using race as a proxy for party may be an effective way to win an election; but intentionally targeting a particular race’s access to the franchise because its members vote for a particular party, in a predictable manner, constitutes discriminatory purpose.
The effects of SCOTUS’s denial of cert is both clear and uncertain. What is clear is that SL 2013-381 is dead. Dead as a door nail.
What remains uncertain is what zombie-esque version of the law the GOP will craft in an attempt to bring it back to life. Majority leaders in the North Carolina legislature have stated that they will draft another law intended to “limit voter fraud”. Study after study has shown a remarkably low incidence of actual voter fraud in North Carolina. Moreover, we already have anti-voter fraud protections, committing it is a felony offense, under the full penalty of law. What we have witnessed in the recent presidential election is that “voter fraud,” once a legal term, has become a dog whistle that really means “keeping Black folks from having the political power to elect the candidate of their choice.”
This tactic of using facially neutral laws to disenfranchise Black voters has support among the white nationalist members of the so-called alt. right. The equal rights advocates among us–those who believe in the Bill of Rights– need to hear the dog whistle for what it is, and be prepared to bring yet another lawsuit against what I fear will be yet another unconstitutional law passed by a power-drunk state GOP.