The Coming Legal Challenge To North Carolina's Voting Law
To overturn VIVA, the Justice Department has to meet a heavy burden
The Huffington Post asked a provocative question about North Carolina this week: “Are the state’s Republican lawmakers racist?”
That’s misleading, presupposing as it does that we can know what’s in their minds and hearts. The real question is whether the Justice Department can demonstrate to a court that H.B. 589, the Keep the Wrong People From Voting Act, racially discriminates on purpose.
Lawmakers rushed to get 589 (the Voter Information Verification Act is its real title, although I think mine’s more accurate) through both houses before the end of the legislative session July 26, and Gov. Pat is expected to sign it; it’s one of 38 pieces of legislation sitting on his desk. The U.S. Supreme Court’s June strikedown of Section 4 of the Voting Rights Act cleared the way for a number of U.S. states to pass far more restrictive voting laws than they’d have gotten by with before, and North Carolina jammed its bill with every tactic you can think of to keep people who tend to vote Democratic from voting: slashing the early-voting period, eliminating same-day registration and pre-registration of people younger than 18.
U.S. Attorney General Eric Holder has pledged to take legal action against states that have sought to curb voting rights; the DOJ is already intervening in a case in Texas, and North Carolina is likely to be one of the next cases, as the HuffPo story explains:
One such tool could be Section 3, a relatively obscure provision of the Voting Rights Act that the Supreme Court justices have left intact, at least for now. Under Section 3, states and local governments can still be forced to clear their election changes with the federal government — but only if a federal court can prove that those jurisdictions deliberately engaged in racial discrimination against voters.
That could be tough. “There isn't usually the kind of traditional ‘we don't like those people’ kinds of language in the record these days,” said Kareem Crayton, a law professor at the University of North Carolina School of Law. “Legislatures are mostly too smart for that, unless they get caught on tape — which does happen” …
Civil-rights advocates have panned the strictly partisan bill, calling it a thinly disguised ploy to disenfranchise Democratic-leaning groups, and they argue that minorities would be particularly affected.
But are the legislators who passed the law deliberately racist?
Under the old preclearance regime, state lawmakers had an incentive to cooperate with the sorts of DOJ investigations that could help answer that question. Now that states no longer need the DOJ’s approval to get their laws passed, the DOJ could have a tough time bringing cases against them. The department lacks subpoena power in voting cases, which means it may have to look for evidence of discriminatory intent in emails that private litigants try to obtain through state freedom of information requests.
If that doesn’t work out, the DOJ could try a more subtle strategy. “There's plenty of case law where the courts have found intent of racial discrimination because certain decisions aren't explainable unless you take account of race as the motivation,” Crayton said.
And that will be tricky. One of the subtle challenges of proving deliberate racial discrimination is demonstrating that the discriminators are self-aware enough to recognize they’re discriminating. I’m not sure this crowd does.
And yet … there’s really no doubt about the people 589 will most affect, or the stated justification that does not exist. The DOJ’s attempt to solve this problem in the courts is welcome, of course, but the only real solution is, as always, to buck the current and vote.