The ongoing legal challenge to North Carolina’s voter ID rule, now playing out before a federal judge in Winston-Salem, could end up reminding us that it’s not the job of the courts to decide whether a law is needed or wise. It’s their job to decide whether a law violates someone’s constitutional rights. Yet the two functions can overlap.
Take an example from a different field – the debate over gun regulation. The 2nd Amendment declares that the right to keep and bear arms “shall not be infringed.”
It’s hard to imagine any judge, even an ardent gun-rights supporter, concluding that gun possession couldn’t be regulated in any fashion whatsoever because of that constitutional language. Individual rights are balanced against the overall need to uphold public safety.
In what some would describe as a similar balancing act, North Carolina’s Republican-led General Assembly decided in 2013 that beginning this year, a voter would have to show a government-issued identification document with a photo. For most people the ID will be a driver’s license. But not everyone has a license or other acceptable document. Some might not be able to get one without extraordinary effort.
For those people, does the requirement amount to an unfair, discriminatory and hence unconstitutional infringement of their right to vote? Or is a possible infringement necessary to serve a larger public purpose?
The legal jousting over these questions occurs in an intensely political context. If Republican legislators manage to get a judicial seal of approval on a law that has the effect of holding down the number of votes cast by Democrats, they’ll file it under “Mission Accomplished.” And since the photo ID rule is part of a broader set of election law changes clearly meant to boost Republican chances, the rule’s partisan motives are hidden in plain sight.
‘Fraud’ as a fig leaf
As the trial before U.S. District Judge Thomas Schroeder got under way on Jan. 25, the plaintiffs – including the state chapter of the NAACP – leaned on evidence showing that the group of voters lacking the designated photo IDs contains a disproportionate number of African-Americans. For example, they may be elderly people who don’t drive and who can’t locate a proper birth certificate because of muddled record-keeping during the era of Jim Crow.
The law’s defenders will have a hard time refuting the basic numbers. But they can be expected to repeat familiar arguments: 1) Most everyone should be able to obtain a valid ID with little trouble; 2) The law now allows someone to cast a provisional ballot and have it counted even if the person doesn’t have a valid ID; 3) Even if a few voters are inconvenienced and perhaps deterred from voting, the photo ID rule is a reasonable measure intended to protect the integrity of elections by cutting down on the possibility of fraud.
As it happens, the fraud-prevention rationale falls somewhere between disingenuous and bogus. The law’s critics convincingly assert that instances of in-person voter fraud – the kind that a photo ID requirement might be expected to curtail – are exceedingly rare, based on the paltry number of cases that have been prosecuted.
That’s not to say that any instances of such cheating should be tolerated. Safeguards to make sure that voters are who they say they are and that they vote only once must be observed. But the current system, which puts cheaters on the hook for felony charges, seems on the whole to be working just fine.
Defendants in the lawsuit also find themselves making the awkward argument that things could have been worse. As originally passed and signed by Republican Gov. Pat McCrory, as part of the sweeping election law overhaul mentioned above, the photo ID rule was regarded as the nation’s strictest in terms of the limited kinds of ID deemed acceptable and the lack of recourse for someone who couldn’t produce one.
About a month before a challenge to the larger law was to be heard, legislators last June reworked the ID requirement to make it more lenient.
People who claim they’ve been unable to get a photo ID because of a “reasonable impediment” – missing documents, no transportation, work schedule conflicts and so forth – will be allowed to present other information to show their identity. They’ll be able to cast a provisional ballot, to be counted so long as that ID information checks out. So, for example, someone who provides a matching date of birth and last four digits of a Social Security number, or a utility bill with his or her name and address, can vote after all.
This surely raises the question: Why go to the trouble of requiring a photo ID in the first place? Even in its watered-down form, the rule makes the voting process more complicated. For instance, each photo will have to be checked to make sure it matches the person presenting it. The standards for making those determinations are fuzzy at best.
Hurry up and wait
Amidst a hotly contested election, as the presidential contest in November is certain to be, any delay in moving voters through the polls can result in some people deciding they don’t have enough time to wait in line, or perhaps even being turned away. Where have crowded polls often been a problem, even without an ID rule to slow things down? Hint: Not in the Republican-leaning suburbs.
Judge Schroeder, in declining to issue an injunction that would have put photo ID on hold for the March 15 primaries, took a skeptical view of the challengers’ legal case. And it may be that the law in its current guise stops short of trampling anyone’s constitutional rights. (Federal judges farther up the line have signaled the opposite in regard to other election law changes such as the end to same-day voter registration and out-of-precinct voting.)
But no matter the outcome of the current trial, the photo ID rule is bad policy from the standpoint of anyone except partisan zealots who know perfectly well where any impact is likely to fall.
The law fits neatly into an overall Republican strategy, evident in North Carolina and elsewhere. The strategy is to shrink the Democratic-leaning electorate and to try to convince the courts that this is a matter of necessity in the interest of keeping elections honest and “orderly.” Not coincidentally, the strategy fits hand in glove with Republican redistricting schemes intended to marginalize Democratic-leaning voters, African-Americans in particular.
Voting rights advocates, including the NAACP and the group Democracy North Carolina, are pushing to inform voters about the rules now in effect – specifically, not to be discouraged from going to the polls because of ID concerns. These are efforts that deserve support from all civic-minded folks of good will, and the Council of Churches hopes to see church-goers pitching in.
The Council takes an interest in voting rights not in furtherance of a partisan agenda, although it has opposed many of the Republican-controlled legislature’s policy initiatives as being contrary to the well-being of the state’s disadvantaged residents and to its long-range fitness as a place to live, learn and work.
The Council’s perspective is simply this: More voters are better, as a way to help ensure that elections convey the choices of a broad cross-section of citizens. It’s a special concern when our more vulnerable neighbors, who struggle to have their voices heard anyway, have it made harder for them to vote.
Elections must be conducted fairly and honestly. That should go without saying. But the photo ID rule will do precious little to improve our state’s elections on either of those counts.
The law as it stands amounts to a desperate attempt to retain a vestige of an earlier version that was headed down the tubes in federal court. Especially if Schroeder finds that certain groups of voters – minorities, the elderly, the young, those living in remote rural settings – still are likely to be disproportionately affected, he’d be well justified in banging the gong and ushering this cynical, complicated and needless law off the stage.
Steve Ford, former editorial page editor at Raleigh’s News & Observer, is now a Volunteer Program Associate at the North Carolina Council of Churches.