On June 21, before a packed courtroom, the Fourth Circuit Court of Appeals heard oral arguments in N.C. State Conference of the NAACP v. McCrory, a case that will determine the outcome of one of the most unprecedented attacks against voting rights in history. The panel has a difficult task ahead of them.
As defendant’s counsel pointed out, “there is not a lot of guidance by the Supreme Court on these vote denial cases.” Judge Diana Gribbon Motz replied, “Believe me, we are aware of that.” Allison Riggs, a staff attorney from the Southern Coalition for Social Justice representing the plaintiffs said, “There is no case like this.”
The NAACP asked for the panel to reverse the ruling of a lower court judge upholding HB 589, North Carolina’s brutal voter suppression law that eliminates same-day registration, reduces the early voting period by a week, prohibits the counting of out-of-precinct ballots, terminates pre-registration for 16- and 17-year-old citizens, and, most famously, implements severe restrictions on voter ID. The room was full of North Carolina residents opposed to HB 589, who boarded buses as early as 1:45 a.m. to come and show their support for the plaintiffs in this case.
The plaintiffs, joined by the United States Department of Justice, argued that these changes would have a disparate impact on people of color and their fundamental right to vote.
North Carolina’s HB 589 was signed into law in 2013, immediately after the Supreme Court gutted the Voting Rights Act by a narrow vote of 5 to 4 in Shelby County v. Holder. The preclearance provision required jurisdictions that were identified under a coverage formula to request permission from the Department of Justice prior to making any changes to their voting procedures. In Shelby, the Supreme Court found the formula unconstitutional, which effectively neutralized the preclearance provision and eliminated a crucial protection for people of color who still face the threat of disenfranchisement. As Judge Floyd stated while addressing the defense, North Carolina’s rush to pass the extraordinarily restrictive law directly after the Supreme Court rendered its decision in Shelby “looks pretty bad to me.”
Anna Baldwin, an attorney with the Department of Justice representing the United States government in their challenge of HB 589, argued that the District Court erred in its decision to uphold the law because it failed to consider the “troubling blend of race and politics” in North Carolina, a framework previously laid out by the Supreme Court.
She noted that part of this “blend” was that HB 589 was “enacted to block growing African-American political power” that surged in the 2008 and 2012 elections in North Carolina, where race is the best predictor of voter behavior. The lower court, she said, applied the wrong standard by failing to properly consider this framework. She also argued that the District Court incorrectly emphasized the levels of black voter turnout in 2010 and 2014, which was fundamentally flawed because of a higher profile Senate race in 2014 compared to 2010 and “extraordinary efforts” on the part of church groups in order to offset the impact of HB 589’s restrictions.
When Judge Motz pressed for specific evidence of what would have happened without HB 589, Ms. Baldwin pointed out that there was factual testimony of the harm inflicted on North Carolina voters. This includes the more-than 1,600 uncounted, out-of-precinct ballots in 2014 that would have been counted prior to the statute’s enactment, and the 12,000 voters who registered to vote after the “book-closing” period, who could not take advantage of North Carolina’s former same-day registration period as a result of HB 589.
Penda Hair, another attorney for the plaintiffs and founding co-director of the Advancement Project, discussed the disparate impact HB 589 had on black voters, whose struggle to vote is a result of longstanding racial discrimination that led to educational and socioeconomic barriers. She also explained how the lower court found the critical facts in favor of the plaintiffs, but then took the unprecedented step of applying a causation requirement, even though all of the evidence clearly demonstrated a racial intent on the part of the legislature in enacting HB 589.
Judge James A. Wynn Jr. heavily grilled North Carolina’s attorney, Thomas A. Farr, regarding the legislature’s timing and intent in passing HB 589. Judge Wynn took Mr. Farr through a heated line of questioning on the correct standard of review, the removal of public assistance IDs as permissible voter identification from the final version of the bill, and the legislature’s specific request for racial demographic data while drafting HB 589. Mr. Farr also faced difficult questions from Judge Henry F. Floyd on the Republican-dominated legislature’s use of race to reach a partisan goal immediately after Shelby.
The judges were particularly concerned with the logistics of striking down HB 589.
North Carolina Senior Deputy Attorney General Alexander McClure Peters claimed that there were several urgent deadlines that would make it very difficult for the state to comply with a decision overruling the lower court. Mr. Peters cited the preparation and testing of the North Carolina Statewide Election Information Management System, the need to rewrite training materials or retrain county officials and poll workers, the need to meet the delivery date mandated by a printer for proofs of voter guides, and the budgetary issues if more expenditures were needed.
In her response to Mr. Peters, Ms. Riggs maintained that implementation was not only manageable but also necessary. “Sacrificing voter enfranchisement at the altar of bureaucratic inefficiency or under-resourcing isn’t acceptable,” she argued. “The state board of elections may have set a training for August 8 or 9. To enfranchise voters, that training can be moved. They may have a contract to get proofs for a guide. If a federal court rules that these laws are racially discriminatory and unconstitutional, I think this court’s ruling trumps that. There is ample time to educate the voters, get a remedy in place, and make sure North Carolinians can vote in November.”
Prior to the start of oral arguments, Rev. Dr. William Barber II, president of the NC NAACP, asked everyone in the courtroom to offer a moment of silence for all those who have died in their fight to protect voting rights. It was a powerful moment to think of all the people who came before the voting rights advocates representing the plaintiffs that day, and a reminder of how—in the words of George Washington in the hit Broadway musical Hamilton—“history ha[d] its eyes” on that courtroom.