First test for voting law challenges coming

First test for voting law challenges coming

- in Law and the Courts


If we learn nothing more from emails and other communications that state lawmakers are fighting to keep from the public eye in the Voting Rights Act cases pending here in federal court, we know at least this.

Proponents of what would become one of the most restrictive voting laws in the nation were keen on learning just whose votes they’d be suppressing.

And when the numbers placed before them revealed that in large part those votes belonged to African Americans, seniors, and young voters, they pushed their bill to passage in a hurry.

From the very conception of House Bill 589, the main sponsors of the bill had sought and obtained information from the State Board of Elections indicating that the challenged provisions repealed practices used disproportionately by African Americans,” groups opposing the new voting law said in recent court filings.

Though still in the midst of a battle with lawmakers over disclosure of such emails and documents in advance of a July 2015 trial, those groups and the U.S. Department of Justice are now asking the court to block the state from enforcing voting changes during the November 2014 elections.

They contend that even on the limited evidence obtained to date, the court can find sufficient proof that, as lawmakers intended, the changes clearly impact the ability of African Americans and other minorities to vote, offering this:

The law’s disproportionate burdens on African Americans, the highly unusual and expedited manner in which HB 589 was enacted, the evidence that was before the legislature at the time, and the absence of any credible legislative rationale all show that the legislature enacted the statute (at least in part) to depress minority voter turnout.”


As initially passed by the House in April 2013, HB 589 imposed only a voter ID requirement. It then sat seemingly dormant in the Senate until late June, when the U.S. Supreme Court gutted the preclearance requirement under Section 5 of the Voting Rights Act in Shelby County v. Holder.

Now we can go with the full bill, “ said Sen. Tom Apodaca, alluding to the fact that the state would no longer have their voting changes preapproved.

The full bill, unveiled in late July with just days left in the session, sailed through both chambers of the General Assembly in two days.

In addition to imposing voter ID requirements, HB 589 eliminated a week of early voting, banned same day registration during the remaining period, and prohibited counties from counting provisional ballots cast outside a voter’s assigned precinct.

It also expanded the ability of partisan groups to send monitors to the polls and to challenge voters (allowing 10 additional at-large observers in a county).

 Just as quickly, two groups – one led by the North Carolina State Conference of the NAACP and another by the NC League of Women Voters — filed separate complaints in federal court in Winston-Salem seeking to overturn the law.

The Justice Department followed a month later with its own action, seeking not only to invalidate the law but also to bail the state into preclearance under the rarely used Section 3 of the Voting Rights Act. Bail-in relief would once again require North Carolina to obtain approval for any voting changes from either the Department or the federal court in Washington, D.C.

Since then the parties have largely been engaged in a tug-of-war over the disclosure of documents and information generated by lawmakers, who have invoked protection under a very broad interpretation of legislative privilege.

In March, Magistrate Judge Joi Elizabeth Peake rejected that broad interpretation.

Peake ruled that at least some of the communications sought were not absolutely protected — communications with constituents or other third parties, for example – and should be produced. The judge also held that other documents might likewise have to be disclosed if the need for them in the voting rights context outweighed any intrusion on the legislative process.

In an order in mid-May, U.S. District Judge Thomas D. Schroeder upheld the magistrate’s ruling.


Despite two court rulings to the contrary, lawmakers are still holding on to plenty of documents, claiming still that the privilege protects them from disclosing records in their possession — regardless of whether they’ve already been produced by or shared with third parties, like state agencies and lobbyists.

But the groups challenging the law say that the court has already rejected that argument and that in any event, many of those documents are public records that must produced.

Such communications are likely to shed light on the sequence of events leading up to passage of HB 589 and reveal contemporaneous statements and viewpoints held by the decision-makers, all highly relevant to the question of discriminatory intent,” the Justice Department said in a recent court filing.

Documents already produced by agencies like the State Board of Elections prove that point.

After unsuccessful efforts to pass voting law changes in 2011, state lawmakers geared up for renewed attempts in the 2013 long session, directed initially only at a voter ID requirement.

To that end, they asked the Board of Elections for data on licensed and unlicensed registered voters.

Here’s Erika Churchill from legislative research asking for information in December 2012:


To the dismay of some lawmakers, information from a report generated in response to that request landed in the “Under the Dome” section of the News & Observer, prompting this reaction:Churchill-2013


Two months later, Rep. Harry Warren and others asked the Board of Elections to break down the numbers of unlicensed registered voters by race, age and other demographics as well as by the use of early voting and same-day registration:

warren request 73

In a series of reports that followed, the board provided lawmakers with detailed numbers on demographics and voting histories — demonstrating, the challengers argue, an awareness in the General Assembly of the impact proposed changes would have on specific groups.


The numbers show that the state’s voting law changes disproportionately impacted African Americans, the Justice Department and the groups challenging those changes contend.

Compared to white voters, African American voters were far more likely to vote early. In 2008, for example, 70 percent of all African American voters used early voting, compared to just 51 percent of white voters. These numbers were almost identical in 2012—70 percent and 52 percent, respectively.

During the 2012 elections, African Americans were also over 35 percent more likely than white voters to register to vote using same-day registration, and twice as likely to cast out-of-precinct provisional ballots.

Lawmakers knew that, the challengers add.

In early 2013, before introducing the original House version of HB 589, its sponsors requested and received data from the SBOE on the racial impact of their proposed ID law, a request entirely consistent with an awareness that the law might have a disparate racial impact,” the Justice Department noted in a recent court filing.

Despite that, lawmakers rushed the bill along through in atypical fashion, ignoring facts and cutting off debate – evidence that they were motivated by a discriminatory purpose, the challengers contend.

And when pushed to offer legitimate reasons for the changes or for the hurried manner in which they advanced the bill, lawmakers had none.

No cost savings would result from shortening the early voting period. In fact it would cost more, as counties told lawmakers – more for overtime salaries for poll workers and for additional workers to handle the increased time that early voting sites would need to remain open.

Early voting sites would become even more congested than they’d been before.

And same-day registration, which the state had proclaimed a success, needed no changes.

Claims of in-person voting fraud to be remedied could not be sustained.

And a professed “crisis of confidence” in the state electoral system went unsubstantiated.

For those reasons, the law’s challengers have asked the court to block enforcement of voting changes during the November 2014 elections and pending the trial scheduled for July 2015.

Since voter ID requirements do not go into effect until 2016, that request relates only to the shortening of the early voting period, the elimination of same-day registration and the discounting of provisional ballots cast in the wrong precinct.

The Justice Department is also requesting the appointment of federal observers to monitor voting here this fall and to provide balance to the partisan observers permitted under the new law.

The court has scheduled hearings on that request for early July.

(Note: Late yesterday the state defendants filed papers opposing the challengers’ request for a preliminary injunction. Policy Watch will address their arguments in a subsequent post.)

About the author

Sharon McCloskey, former Courts, Law and Democracy Reporter for N.C. Policy Watch, writes about the courts and decisions that impact North Carolina residents. McCloskey also wrote for Lawyers Weekly and practiced law for more than 20 years. Follow her online at or @sharonmccloskey.