Professor Michael Curtis writes ‘A Welcome Defeat for the North Carolina Legislature’s Effort to Hobble Black Voting’ in The Huffington Post

Photo of Wake Forest School of Law Professor Michael Curtis

Michael Kent Curtis is one of the foremost constitutional historians in the United States.

Professor Michael Curtis authored the following op/ed, “A Welcome Defeat for the North Carolina Legislature’s Effort to Hobble Black Voting,” in The Huffington Post on Aug. 2, 2016.  The post discusses the decision of the U.S. Court of Appeals for the Fourth Circuit to strike down North Carolina’s voter restriction laws, which were originally passed in 2013.  A three-panel judge made the unanimous decision on July 29, 20176.  The complete article follows.

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A panel of the U.S. Court of Appeals for the Fourth Circuit on July 29, 2016, struck down a group of election “reforms” rushed though in 2013 by Republicans in the North Carolina Legislature.

The decision is crucially important. Still, the problem it addresses is part of a larger issue — rejection by the majority party in North Carolina’s Legislature of democratic principles — all in an effort to establish one-party rule resistant to electoral change. The attack on democracy has been multi-faceted, including, but not limited to, racial-political gerrymanders in the state Legislature, new extreme “partisan” gerrymanders for Congress and election law changes aimed to hobble voting by blacks, minorities and the young.

Sadly some of the changes are eerily reminiscent of the attack on democracy during and after Reconstruction when the old-time, and ultimately defeated, bi-racial Republican Party had championed expanded democracy, voting rights, public education and democracy for local governments.

The Fourth Circuit dealt with changes passed in 2013 to North Carolina’s election law — “reforms” that increased barriers to voting. The question before the Court was whether intentional racial discrimination motivated the enactment of five election law “reforms” and, if so, whether they would have been enacted even without the racial motivation. In order to answer these questions, the Fourth Circuit panel looked at the full picture. It looked at the “reforms” collectively and in context.

Part of that context was the growth of African-American political influence in North Carolina elections. In North Carolina, most whites vote Republican, blacks overwhelmingly vote Democratic. This fact, as the Fourth Circuit panel noted, “does provide an incentive for intentional discrimination in the regulation of elections.” It may, as the Fourth Circuit stated, “motivate politicians to entrench themselves through discriminatory elections laws.” Because of history and socio-economic factors, many blacks are particularly vulnerable members of the Democratic Party’s multi-racial coalition.

“After years of [required] preclearance [under the Voting Rights Act] and expansion of access [under the laws the reforms repealed],” the appeals court noted, “by 2013 registration and turnout of African Americans’ was in near parity with that of whites. … African Americans were poised to act as major political force.” At this crucial time, and freed from Justice Department pre-clearance after the U.S. Supreme Court’s Shelby County decision, the Legislature acted with great speed.

The Fourth Circuit panel also noted:

For each reform, the General Assembly requested and got data on the racial effect of the “reform” — so they knew the racial and political effect of each change. “Upon the receipt of the race data, the General Assembly enacted legislation that restricted voting and registration in five different ways, all of which disproportionally affected African Americans.”

The so-called “reforms” included a restrictive voter ID law, ending same day registration, and cutting back on early voting days and eliminating one of the two “souls to the polls” Sundays African-American churches had used to transport voters to the polls. The law also prohibited county election officials from counting votes by voters who mistakenly voted in the wrong precinct. The prior law required counting votes for those races for which the voter was clearly qualified to vote. The “reform” law eliminated pre-registration that allowed 16 and 17 year olds to indicate their intent to vote when obtaining drivers licenses or attending mandatory registration drives. They were then checked for eligibility and, if eligible, automatically registered when they became 18. Pre-registration had increased turnout among young adults.

Though not immediately obvious to most who simply read the law, the Court’s decision explained the importance and effect of each of these changes for African-American voters.

When the Court looked at independent (non-racial) justifications for the laws, it found them weak. For example, the state failed to provide a single case of in- person voter fraud . But the Board of Elections had found some fraud in connection with absentee ballots. The statistics the legislature had requested showed that whites, not blacks, predominantly used absentee ballots. No legislation was aimed at absentee-ballot problems.

A crucial part of the Court’s decision focused on the intersection of politics and race. An argument against the decision is, even if, as it seems in light of the full context, the legislature targeted black voters, it did not target blacks because they were black, but because they voted Democratic, and they were a convenient target.

The appeals court’s answer was direct:
“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. This is so even absent any evidence of race-based hatred and despite the obvious political dynamics. A state legislature acting on such a motivation engages in intentional racial discrimination in violation of the Fourteenth Amendment and the Voting Rights Act.”

History is full of ironies. After the Civil War the old-time Southern Republicans were the bi-racial party. In the era of Reconstruction, North Carolina tried democracy, public education, and locally elected political power for cities and counties.

When the old-time North Carolina Republicans were in power they expanded democracy with election laws that facilitated voting. The “Democrats” regained power and enacted restrictive election laws that disproportionally disadvantaged blacks (and, of course, Republicans).

In a coalition with the Populists, the Republicans regained power and again democratized election laws. When North Carolina “Democrats,” regained power, they again passed laws that contracted democracy and disadvantaged black voters. Some, but not all, of these later law were more overtly racial.

The old time North Carolina Republicans benefited from expansions of the right to vote. And the “Democrats” benefited from facially neutral barriers they placed in the way of black voters. To treat this back and forth as just politics is a false equivalency. Expanding the ability to vote should not be legally or morally equivalent to impeding or contracting it.

The 4th Circuit noted that “one of the legislature’s stated purposes in enacting SL 2013-381 [the election “reform” act] was “mov[e] the law back to the way it was.” The District Court “apparently regarded this as entirely appropriate. … [T]he voting mechanisms that SL 2013-381 restricts or eliminates were ratified ‘relatively recently,’ ‘ almost entirely along party lines,’ when ‘Democrats controlled the legislature’…”

SL 2013-381 was similar, except this time the partisan change came from the Republicans.

The 4th Circuit panel responded: “When a legislature dominated by one party has dismantled barriers to African American access to the franchise, even if done to gain votes, ‘politics as usual’ does not allow a legislature dominated by the other party to re-erect those barriers.”

Earlier, in Dickson v. Rucho, the North Carolina Legislature, using two racial quotas, had packed more black voters into selected state legislative districts where the candidates preferred by black voters were already winning by landside margins. The packing, which wasted black votes and reduced black political power, was allegedly to protect against a Voting Rights suit, supposedly based on the inability of blacks to elect the candidate of their choice in the reconstituted districts. In addition to a 50%+ quota for black voters in those districts, a quota the legislature failed to show was needed or justified, a second racial quota sought blacks in the legislature in proportion to the black population of the state. In support of that quota state white state senator Linda Garrou, who had been preferred by black voters in her district, was removed from her district. For the proportionality quota, she was a senator of the wrong color.

The North Carolina Supreme Court approved the two racial quotas, its decision was vacated by the United States Supreme Court, and the North Carolina Court again approved both of the racial quotas.

Meanwhile in Harris v. McCrory, a three judge federal court, finding racial districting that violated the 14th Amendment, struck down congressional districts that the North Carolina Court had approved.

In response to the Harris decision the legislature ordered its line drawer to ignore race and to gerrymander congressional districts to favor Republicans. Essentially, regardless of the overall congressional vote or basic democratic principles, the line drawer was give as many districts to Republicans and as few to Democrats as possible under existing law.

As Representative David Lewis (R-Dunn), who was leading the gerrymander effort, explained “we are going to use partisan data in drawing the map…to gain partisan advantage” by electing ten Republicans and three Democrats. Why not an even more dramatically anti-democratic map? “I do not believe it is possible to draw a map with 11 Republicans and two Democrats,” he explained.

Is there some hope? Yes, some.

In still another case, Covington v. North Carolina, a three judge federal court has before it a challenge to twenty eight state legislative districts as a racial gerrymander in violation of the Fourteenth Amendment. The powerful claim is that those districts were gerrymandered using two racial quotas for which no narrowly tailored compelling state interest was present. If that suit succeeds, the façade of Voting Rights Act justification for the gerrymander should fall. The result should be to revive the Whole County (anti-gerrymander) provision of our State Constitution which bans dividing whole counties in state legislative districting except at needed to comply with supreme federal law (such as one person one vote.) Without the facade of the Voting Rights Act justification for these districts, the state constitution should limit the state legislative gerrymander.

Another hope is an outraged citizenry — Republican as well as Democrats and Independents — in short those who place democracy above partisan interests. Citizens could demand a non-partisan citizen districting commission. It would take a broad, deep, and strong political effort to move entrenched partisan legislators, but if the public were squarely presented with the issue and outraged, that might happen. One demand could be for a referendum on the issue. In any case, partisan gerrymandering and its corrosive effect on America’s and North Carolina’s democracy needs to be put front and center in our political discussions.