Will Holder’s DOJ Prevail in NC? | Eastern North Carolina Now

    Publisher's note: This post, by Susan Myrick, was originally published in the Elections & Voting section of Civitas's online edition.

    A hearing that liberal groups hoped would undermine North Carolina voting reform instead appears to have revealed their true objectives. The NC NAACP and the League of Women Voters of NC, ­joined by Eric Holder's U.S. Justice Department, said they were suing the state to protect voters against disenfranchisement, but testimony revealed what they really want is to protect ultra-partisan get-out-the-vote (GOTV) and voter registration efforts. The message in the end was not so much about protecting individuals as it was about liberal groups' convenience and protecting their preferences in the voting process – all to facilitate their organizations' agendas.

    U.S. District Judge Thomas D. Schroeder listened to hours of testimony during a preliminary injunction hearing in Winston-Salem July 7-10. The motions for preliminary injunction were made to halt certain provisions of the new election reform law, the Voter Information Verification Act (VIVA – House Bill 589). Specifically the plaintiffs were seeking to block the shortened early voting period, the elimination of same-day registration (SDR) and the elimination of out-of-precinct voting on Election Day. In addition to the injunction, the attorney for the Department of Justice asked the judge to assign federal observers to the 2014 General Elections.

    The hearing ran four days and the courtroom was packed with attorneys and spectators every day. On Monday morning, July 7, the court room was filled to capacity and some visitors were unable to get into the room until the afternoon. State and national news media covered it extensively.

    From the outset, Schroeder made it clear that the hearing was not to decide the ultimate merits of HB 589, but whether these key parts of the law ought to be blocked for the November General Election. A trial is set for next July to consider the entire law.

    For the most part, the attorneys for the plaintiffs attempted to make the case that the challenged provisions violate Section 2 of the 1965 Voting Rights Act (VRA) and would "irreparably harm African-American voters and deny them the opportunity to participate in the political process." According to the U.S. Department of Justice's website, Section 2 of the VRA prohibits voting practices or procedures that discriminate on the basis of race, color, or membership in one of the groups identified in Section 4(f)(2).

    However, facts contradict the claim VIVA discourages black voters. The May 2014 Primary Election was the first election where the challenged provisions were implemented and in that election, not only did overall turnout increase, but African-Americans voted in significantly higher numbers than they did in the comparable primary of 2010. In fact, African-American turnout increased by nearly 30 percent in 2014 compared to 2010. Overall turnout increased by 5 percent, with 147,700 more voters voting in 2014 than in 2010.

    When witnesses were confronted with these turnout numbers, many tried to change the subject. One expert witness, Dr. Charles Stewart, a political science professor from the Massachusetts Institute of Technology, testified that the challenged provisions (if implemented during the 2012 Presidential Election) would have negatively impacted 70 percent of blacks who voted early. But when challenged with the turnout statistics for this year's primary, Stewart said, "Turnout suppression is not the issue." Stewart said that we should be looking at the cost to voters in terms of time and effort and that his findings showed a stark difference between whites, blacks and Latinos in paying the "cost of voting." He gave relocation of polling places as an example of voting costs and said that blacks and Latinos incur bigger burdens when polling places are moved, although eventually they would compensate.

    Nevertheless, talk of voter turnout could not be avoided during the hearing. The lawyers for the plaintiffs cited increased African-American turnout in the 2008 and 2012 elections and claimed that it was a result of the changes in election law beginning in 2000, including one-stop early voting (2000), SDR (2008) and out-of-precinct voting (2005).

    However, the defense attributed the higher minority turnout not to the voting laws but to the presence of Barack Obama on the presidential tickets and effective campaigning by his political machine. Defense attorneys pointed out that while black turnout was higher than white turnout in 2008 and 2012; white turnout was higher than black turnout in 2006 and 2010. The defense linked the Obama campaign's effective use of one-stop early voting, SDR and out-of-precinct voting as GOTV tools to the significant increases in 2008 and 2012. But those election processes were not essential to bringing out voters, the defense argued. For example, Virginia also saw significant increases much like North Carolina's in black voter registration and turnout in the 2008 and 2012 elections, but Virginia does not have early voting, SDR or out-of-precinct voting.

    While the lawyers for the defense did not call witnesses, they did make strong points during cross-examination of witnesses and in their closing statements. Phil Strach, an attorney for the state, asked the question, "If you don't look for voter fraud, how can you find it?" Strach also painted an entirely different picture of the passage of HB 589 than what was suggested by the plaintiffs, who conveyed the impression the bill was rushed through the General Assembly. Strach countered that "the transcript reflects a spirited debate, with respect and courtesies extended by the majority to the minority." He said amendments offered by the minority were adopted and passed during the debate, the process was thorough and appropriate, and main topics were discussed and vetted.

    North Carolina Deputy Attorney General Alexander Peters was able to clear up some misconceptions about voting before HB 589. The plaintiffs' lawyers tried to suggest that VIVA greatly changed the elections process. Peters, however, pointed out that some contrasts between VIVA and previous laws were not so stark. He said that counties did not always use all 17 days of early voting for the extra sites, many counties that used extra early voting sites (known as satellite sites) would open them gradually, and some counties did not open them until the last week of early voting. He also said that during the 2010 Primary only 31 counties had a satellite site. He also reported that Sunday voting was not required pre-HB 589 and, in fact, only seven counties utilized Sunday voting in the 2010 Primary Election. Peters also said that Mecklenburg County's elections director, Michael Dickerson, liked the idea of a shortened early voting period because that would require his county to open more sites in order to compensate and would reduce the tendency for the majority on local boards to favor their party when selecting satellite sites.

    Schroeder listened closely to the witnesses and attorneys and asked strong and perceptive questions throughout the hearing. He especially questioned whether, if North Carolina had violated voting rights, why the DOJ had failed to prosecute such moves in other cases. He asked the attorney for the DOJ whether, before N.C. implemented one-stop early voting, had DOJ taken the position that North Carolina was in violation of Section 2 for not having early voting. He also asked whether the DOJ had ever denied preclearance (under the VRA) for states that didn't have early voting. In the same vein he asked if the Justice Department had ever before claimed a state was in violation of Section 2 of the VRA because the state failed to provide Sunday voting.

    The DOJ answer in each case was, in essence: No.

    He also asked several different lawyers how far back he should look in North Carolina's history of voter discrimination, raising the issue of why the state should be punished for things that happened decades ago. He then asked the defense how could he determine if turnout wouldn't have been even higher if the contested provisions had not been put in place for the 2014 Primary.

    On Thursday afternoon Schroeder adjourned the hearing and indicated that his decision would be made in writing and would come "sooner rather than later." He has more than 7,000 pages of documents to review, including depositions from witnesses on both sides.

    While the plaintiffs attempted to make the case that the state had violated the Section 2 of the VRA when the legislature passed HB 589, their arguments centered on a multitude of progressive organizations being inconvenienced in their voter registration and politically charged get-out-the-vote efforts. Unfortunately, their case was less about disenfranchised voters and more about organizations such as the NAACP, ACLU and League of Women Voters not being afforded their preferred way of going about their business of electing liberal candidates and pushing progressive policies. For years the liberal left has shaped North Carolina voting laws to enhance their own political efforts. VIVA has attempted to level the playing field and to remove advantages enjoyed by any political party.