Voter ID movement stumbles in courts, as judges ID racism

Three courts on Friday struck down parts of controversial voter ID requirements put in place by Republicans, with one of those courts citing “clear discriminatory intent” by lawmakers in North Carolina to shrink the franchise for politically powerful US minorities.

The Fourth Circuit Court of Appeals, which oversees North Carolina, found that a 2013 voter ID law targeted Democrat-leaning black and younger voters with “almost surgical precision,” in part by taking away an early voting day, Sunday, used by black churches to shuttle parishioners to the polls. The court sternly added that ‘‘the Legislature enacted one of the largest restrictions of the franchise in modern North Carolina history’’ in the words of Judge Diana Motz, who wrote the opinion that sent the case back to the lower courts.

Republicans say they’ll appeal the decisions, claiming they’re barely-disguised attempts by Democrat-appointed judges to sway the presidential election, in which Democratic nominee Hillary Clinton is banking on the overwhelmingly Democratic black vote to deliver her the White House over Republican candidate Donald Trump. Voter ID laws are intended to stop election fraud, say Republicans.

But while election year political maneuvering may indeed be at play, the back-to-back defeats for voter ID laws have laid out evidence that racially discriminatory intent – in other words, racism – still shapes election policy in the South and beyond.

Most keenly, the North Carolina ruling – which will likely be in effect in November – raises what University of California, Irvine law professor Rick Hasen writes on his blog is a “meaty question”: “[H]ow  to decide when a jurisdiction has a racially discriminatory intent when race and party so intersect, especially in the South?” 

But it's not just the South. 

In Wisconsin on Friday, a federal judge dismantled part of that state’s voter ID law, saying the cure was worse than the ailment. In Kansas, a Shawnee County judge blocked Republican Secretary of State Kris Kobach’s attempt to keep 17,000 voters from the polls because they didn’t have US citizenship proof when they registered to vote. And earlier this month in Texas, a federal judge struck down key sections of a new voter ID law, the first of four back-to-back blows against the voter ID movement.

The ruling in North Carolina quickly emerged as the most dramatic, in part because of its potential impact on the presidential election, and because the appellate judges admonished a lower court judge for, in essence, having failed to spot obvious racism.

The North Carolina law reduced early voting, including a Sunday historically used by black churches to bring parishioners to the polls. Such drives were instrumental in Barack Obama carrying the state in the 2008 presidential election, though Mitt Romney won it in 2012 – before the state’s voter ID law took effect.

Charles Franklin, director of the Marquette Law School Poll, in Milwaukee, Wisc. says in an email to the Monitor: "The North Carolina race is one that may well be close enough to be affected by the voter id and especially the early voting changes. North Carolina has a close partisan balance and a large African American population so even small changes in turnout could affect the outcome.  In Wisconsin the presidential and Senate races are currently not as competitive and the African American and hispanic populations are relatively small percentages of the statewide vote."Fourth Circuit Court of Appeals Judge Motz indicated that Republican politics, not fear of fraud, were behind the North Carolina voter ID initiative.

"The record makes clear that the historical origin of the challenged provisions in this statute is not the innocuous back-and-forth of routine partisan struggle that the State suggests and that the district court accepted," Motz wrote for the panel, which also includes Judges Henry Floyd and James Wynn.

“Rather,” the judge continued, “the General Assembly enacted them in the immediate aftermath of unprecedented African American voter participation in a state with a troubled racial history and racially polarized voting. The district court clearly erred in ignoring or dismissing this historical background evidence, all of which supports a finding of discriminatory intent."

In a 485-page ruling upholding the law in April, Judge Thomas Schroeder concluded that “[t]here is significant, shameful past discrimination [in North Carolina] … [but that] for the last quarter century there is little official discrimination to consider.”

Judge Schroeder, however, is not alone on the bench in his skepticism of racial intent in the voter ID movement. (In total, 32 states now have some form of voter ID requirement, with 17 states tightening voter rules since 2012.)

In 2013, in the seminal Shelby v. Holder case, Chief Justice John Roberts, too, recounted a time “when less than 7 percent of African-Americans in Mississippi were registered to vote,” adding that, today, “there are examples of progress more poignant than the numbers.” Concluding that, “Our country has changed,” Justice Roberts voted with the majority to free many southern jurisdictions from preclearance review by the Justice Department before making election law changes. North Carolina nearly immediately thereafter passed its voter ID law.

For their part, Republican politicians, including North Carolina Gov. Pat McCrory, have said voter ID is intended to raise confidence in the franchise by directly targeting those who might lie about their identity to cast a vote. They add that such laws simply require voters to do what they have to do to board an airplane or to buy prescription medicine.

Moreover, some states, including Georgia, have seen minority voter participation increase under voter ID laws. Republicans also point to other court decisions where judges have upheld the North Carolina as an example of how to guard from fraud while maintaining the basic right to the franchise.

‘‘We can only wonder if the intent [of Friday’sruling] is to reopen the door for voter fraud, potentially allowing fellow Democrat politicians ... to steal the election,’’ North Carolina Senate President Phil Berger and House Speaker Tom Moore wrote in a joint statement.

Republican Rep. Dana Bumgardner told the Gaston, N.C., Gazette that the court was trying to paint state lawmakers as "racists and bigots.”

"It's about the integrity of elections,” Mr. Bumgardner told the paper. “It's not about anything else.”

Yet courts have time after time cited studies that show voter fraud, though it exists, is exceedingly rare.

In other words, in totality, the greatest harm to the franchise comes not from fraudulent voter behavior but “real incidents of disenfranchisement, which undermine rather than enhance confidence in elections, particularly in minority communities,” wrote US District Judge James Peterson as he dismantled parts of the Wisconsin voter ID law.