'Speculation' on North Carolina's Voter ID Law

A silly argument from the defenders of the so-called Voter Information Verification Act

See if you can follow this line of reasoning. Your gym announces that, effective in two months, the gym’s hours will be cut in half, and you’ll have to show photo ID every time you go to work out. The gym does this for no apparent reason. This was not in the membership contract you signed. It’s an odd gym, one with a membership arbitration board to hear complaints. During the hearing, the gym owner argues that you don’t have a legitimate complaint because there’s no evidence you’ve been inconvenienced yet.

Well, no. The requirement hasn’t taken effect. But it takes no imagination at all to determine that cutting hours and requiring proof of identification will hinder your ability to use the membership you paid for. Maybe you have a case, maybe not. But the “no evidence of harm” argument is a profoundly stupid one.

And that’s the argument attorneys representing the State of North Carolina made this week in a federal courtroom over whether the new voter ID law can take effect this year, before the November elections and before the upcoming trial over the law’s constitutionality.

The hearing took up four days this week in U.S. District Court in Winston-Salem, where Judge Thomas Schroeder told attorneys for both sides he’d rule “sooner rather than later,” perhaps before the month is out. It’s a critical decision because of the effect it might have on the midterms; the actual trial, stemming from a U.S. Justice Department challenge to the new law, is set to commence in July 2015.

“The state can’t play games with the most fundamental right in our democracy,” argued Dale Ho, who directs the American Civil Liberties Union’s Voting Rights Project; he was in court representing the League of Women Voters. “The evidence we’ve heard is that voters will have a hard time adjusting.”

And here, in short, is the state’s case (from the N&O):

Thomas Farr, a Raleigh attorney in private practice representing the state, contended that primary results showed an uptick in African-American voter turnout from the 2010 primary. Farr; Alexander Peters, deputy state attorney general; and Phil Strach, a private-practice attorney and husband of state elections director Kim Strach, argued that the challengers had failed to show significant problems from the new provisions.

They called the testimony from the challengers’ witnesses about the potential for voter intimidation and disenfranchisement as little more than “speculation” and “opinion.”

Yes, as a practical matter, infringement on voter rights may compel people to value and exercise those rights–which, as a matter of law, is irrelevant. And yes, witnesses who testify about potential disenfranchisement are engaging in speculation, just as it’s “speculative” to assume that leaving your door open will invite burglars. These people are not making things up off the tops of their heads. Whether we want to face it or not, there’s a history in these parts of discouraging certain groups of people from voting through administrative means, even when those people have the “right” to vote.

The judge said he’ll consider how his ruling might affect similar laws in other states, which is a good thing–it’ll establish legal precedent, for one, and there’s growing evidence that the courts aren’t ruling in the voter suppressors’ favor. From Wisconsin in April:

In a decision that could have implications nationally and in Wisconsin’s November elections, a federal judge on Tuesday struck down the state’s voter ID law, saying it violated the Voting Rights Act and the U.S. Constitution.

The law known as Act 23 had already been blocked by a state judge. For the law to be put back in place, supporters would have to overturn both the state and federal decisions — a possibility that could prove difficult between now and the Nov. 4 election for governor.

“There is no way to determine exactly how many people Act 23 will prevent or deter from voting without considering the individual circumstances of each of the 300,000 plus citizens who lack an ID,” U.S. District Judge Lynn Adelman wrote in his 70-page ruling. "But no matter how imprecise my estimate may be, it is absolutely clear that Act 23 will prevent more legitimate votes from being cast than fraudulent votes.”

Adelman, who is based in Milwaukee, found the state didn’t have an appropriate rationale for imposing a voter ID requirement. In-person voter impersonation — the only type of fraud a voter ID law can prevent — is nonexistent or virtually nonexistent in Wisconsin, he wrote.

“Because virtually no voter impersonation occurs in Wisconsin and it is exceedingly unlikely that voter impersonation will become a problem in Wisconsin in the foreseeable future, this particular state interest has very little weight,” he wrote.

(That’s a key and under-discussed point, too: That in-person voter impersonation, which is exceedingly rare, is the only kind of fraud that voter ID could prevent. Any other kind of voter fraud–box-stuffing through absentee ballots, for example–is still wide open.)

And this, from Pennsylvania in January:

In a strongly worded decision, a state judge on Friday struck down Pennsylvania’s 2012 law requiring voters to produce a state-approved photo ID at the polls, setting up a potential Supreme Court confrontation that could have implications for other such laws across the country.

The judge, Bernard L. McGinley of Commonwealth Court, ruled that the law hampered the ability of hundreds of thousands of Pennsylvanians to cast their ballots, with the burden falling most heavily on elderly, disabled and low-income residents, and that the state’s reason for the law — that it was needed to combat voter fraud — was not supported by the facts.

“Voting laws are designed to assure a free and fair election,” the judge wrote in his 103-page decision. “The voter ID law does not further this goal.”

If honoring legal precedent is on Schroeder’s mind, and on the mind of whomever might hear the actual case, we could see a strike-down of North Carolina’s law next year. But that’s just me speculating.