Having "a Republican argument"
by Tom Sullivan
It could be weeks before U.S. District Judge Thomas Schroeder rules on whether North Carolina's House Bill 589 violates Section 2 of the Voting Rights Act. The NAACP and the U.S. Department of Justice filed suit alleging that the law discriminated against racial minorities, the elderly and young people. In addition to requiring photo IDs for voting, H.B. 589 eliminated same-day voter registration, out-of-precinct provisional voting, preregistration for 16- and 17-year-olds, and reduced early voting from 17 to 10 days. (In advance of the trial, state legislators loosened the ID requirements.)
At Plum Line, Greg Sargent spoke with Chris Brook, one of the ACLU attorneys on the case, about “the mother of all voter suppression bills”:
PLUM LINE: What is the case against the North Carolina law?
BROOK: It makes it more difficult for all North Carolinians to vote, but in particular for racial minorities in our state. Beyond that, the legislature knew full well, when they passed this raft of voting restrictions, that it would make it more difficult for African Americans to vote. Yet they plowed forward despite that fact. We’re challenging these measures pursuant to the 14th Amendment to the U.S. Constitution as well as Section 2 of the Voting Rights Act.
PLUM LINE: The judge in this case is trying to determine whether the impact of the law is discriminatory or merely inconveniencing. It seems like proving discrimination is a high bar.
BROOK: There’s grounds for optimism, because over the course of the trial, we were able to put on a strong case featuring dozens of North Carolinians who were disenfranchised in 2014. These restrictions are not mere inconveniences. They resulted in many North Carolinians not being able to vote.
More than 1,000 North Carolinians cast out-of-precinct provisional ballots in 2014 that previously would have been counted and were not counted. Approximately 11,000 North Carolinians registered to vote during the same-day registration window in 2014. They were not able to participate. This is something that has kept North Carolinians from voting.
In a narrow ruling this week, the United States Court of Appeals for the Fifth Circuit found Texas' SB 14 voter ID requirement violates Section 2 of the Voting Rights Act in that it “produces a discriminatory result that is actionable because [it] . . . interact[s] with social and historical conditions in Texas to cause an inequality in the electoral opportunities enjoyed by African-Americans and Hispanic voters.” North Carolina's H.B. 589 court could face a similar ruling.
The Fifth Circuit did not affirm that the law was passed with discriminatory purpose or that it constitutes a poll tax. Discriminatory purpose is tougher to prove, even if it's obvious.
Election Law Blog's Rick Hasen:
Particularly interesting in this analysis is the question whether Texas’s explanations for why it needed its law (antifraud, voter confidence) were tenuous. The trial court found that they were because the evidence did not support the need for voter id for either of these purposes, and this factor worked in favor of finding of a Section 2 violation.
In upholding the Section 2 claim, the court observed:
While increasing voter turnout and safeguarding voter confidence are legitimate state interests, see Crawford v. Marion Cnty. Election Bd., 553 U.S. 181, 191 (2008), the district court found that “the stated policies behind SB 14 are only tenuously related to its provisions,” Veasey, 71 F. Supp. 3d at 698. While in-person voting fraud is rare and mail-in fraud is comparatively much more common, SB 14’s voter ID restrictions would only combat the former. Id. at 639–41, 653.
[...]
The district court also found “no credible evidence” to support assertions that voter turnout was low due to a lack of confidence in elections, that SB 14 would increase public confidence in elections, or that increased confidence would boost voter turnout. Id. at 655. Two State Senators and the Director of the Elections Division at the Texas Secretary of State’s office all were unaware of anyone abstaining from voting out of concern for voter fraud, and the Director testified that implementing the provisional ballot process might undermine voter confidence. Id. The district court also credited testimony that SB 14 would decrease voter turnout. Id. at 655–56. According to a well established formula employed by political scientists to assess individuals’ likelihood of voting in an election, increasing the cost of voting decreases voter turnout—particularly among low-income individuals, as they are most cost sensitive. Id. at 656. Further, the district court dismissed the argument that increased turnout during the 2008 presidential election was demonstrative of increased voter confidence in two states that had recently passed voter ID laws. Id. at 655. Instead, it found that the increased turnout, nationwide, was due to President Obama’s candidacy. Id. Finally, the court also found that public opinion polls—which found high levels of support for photo ID requirements—were not demonstrative that SB 14 itself would promote voter confidence. Id. at 656. The district court discounted the polls because they did not evaluate whether voters supported SB 14 when weighed against its attendant effect on minority voters. Id.
The same "confidence" assertion the district court in Texas rejected is one prime rationale behind most of these laws nationwide, as well as in North Carolina. In July closing arguments in North Carolina, the Winston-Salem Journal reported:
Schroeder asked Farr [one of the state's attorneys] what the justification was in making the election law changes. State Republican legislators said publicly they wanted to restore public confidence in the election system and stamp out potential voter fraud.
There is no evidence of widespread in-person voter fraud in North Carolina or nationally. An expert for the plaintiffs testified that North Carolina had only two verified cases of voter fraud out of 35 million votes cast in primary and presidential elections between 2000 and 2014.
My wife calls this having "a Republican argument." That is to say, a disingenuous one. It's where your opponent abandons rules of evidence and logic and instead argues by assertion or by exaggerated fear of what "might be" happening undetected.
It is to argue, for example, that eliminating public assistance to the rich through tax cuts, credits, and direct incentives (that fund their fifth home, new yacht, or airplane upgrade) will kill their incentive to work hard and "create jobs." But public assistance to the poor — you know, for food — eliminates their incentive to work.
It is to argue after every mass shooting that we need no new gun laws criminals will simply ignore; we just need to enforce laws already on the books. Except when it comes to voting restrictions, we need new laws on top of those they complain the state is already not enforcing.
It is people arguing that we need to restore public confidence in the election system after they've spent decades trying to undermine it to build public support for restoring Jim Crow.
Next up: competency tests.