North Carolina’s Voter ID Law: A Burden on the Right to Vote
Ashley Triplett*
Amidst an already controversial and historic election cycle, federal courts have stepped in to strike down or modify states’ voter identification (ID) laws. On July 29, 2016, the United States Court of Appeals for the Fourth Circuit unanimously overturned a decision by the United States District Court for the Middle District of North Carolina and struck down provisions of North Carolina’s voter ID law. N.C. State Conference of the NAACP v. McCrory, No. 16-1468, No. 16-1469, No. 16-1474, No. 16-1529, 2016 WL 4053033 (4th Cir. July 29, 2016). In its opinion, the Fourth Circuit recognized the “disproportionate [negative] impact” that North Carolina’s voter ID law, SL 2013-381, had on African Americans attempting to vote in the state. See id. at *15. Considering the history of voting discrimination in North Carolina and the inexorable link between race and party lines, the Fourth Circuit struck down certain provisions of SL 2013-381, finding that they were motivated by “discriminatory racial intent” in violation of the Voting Rights Act of 1965. Id. at *17.
Designed to protect the voting rights guaranteed by the Fourteenth and Fifteenth Amendments, the Voting Rights Act prohibited every state and local government from imposing any voting law that would result in discrimination against racial or language minorities. See Voting Rights Act of 1965, Pub. L. 89-110 §§ 2, 4 (1965) (codified at 52 U.S.C. §§ 10301, 10303(f)(2) (2012)). Section 5 of the Act established a preclearance requirement that prohibited certain jurisdictions, including North Carolina, from implementing any change affecting voting without receiving preapproval from the United States Attorney General or the United States District Court for the District of Columbia. See id. § 5 (codified at 52 U.S.C § 10304 (2012)). Section 5 utilized a coverage formula originally designed to encompass jurisdictions that engaged in egregious voting discrimination in 1965. See id. In 2013, the United States Supreme Court struck down the coverage formula as unconstitutional in Shelby Cty. v. Holder. 133 S. Ct. 2612, 2631 (2013). Finding the formula outdated and no longer responsive to current conditions, the Court declared that it violated the principles of federalism. See id. at 2618, 2629. The Supreme Court did not strike down Section 5, but without the formula, Section 5 was unenforceable. See id. at 2631.
Within days of its release from the preclearance requirements, North Carolina introduced SL 2013-381, which, upon enactment, imposed the first meaningful restrictions on voting access since 1965. McCrory, 2016 WL 4053033, at *8. SL 2013-381 excluded many of the alternative forms of photo identification disproportionately used by African American voters such as student IDs, government employee IDs, public assistance IDs, and expired IDs. N.C. State Conference of the NAACP v. McCrory, No. 1:13CV658, No. 1:13CV660, No. 1:13CV861, 2016 WL 1650774, at *142 (M.D.N.C. Apr. 25, 2016). The law also eliminated the first week of early voting, same-day registration, out-of-precinct voting, and preregistration. See id. at *15–16. After being challenged by the NAACP and the League of Women Voters, the District Court for the Middle District of North Carolina found no discriminatory results or discriminatory intent under Section 2 of the Voting Rights Act and no undue burden on the right to vote. See id. at *2, *89.
On appeal, the Fourth Circuit came to a very different conclusion. See McCrory, 2016 WL 4053033. Fourth Circuit Judge Diana Motz wrote that the “[challenged] provisions target African Americans with almost surgical precision” and that “[faced] with the record, [the court] can only conclude that the North Carolina General Assembly enacted the challenged provisions of the law with discriminatory intent.” Id. at *1–2. In making its decision, the court considered multiple factors including “[t]he historical background of the [challenged] decision,” “[t]he specific sequence of events [and legislative history] leading up to the challenged decision,” “[d]epartures from normal procedural sequence,” and “the disproportionate ‘impact of the official action.’” See id. at *6 (quoting Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266–67 (1977)).
The court noted North Carolina’s history of racial discrimination and recent patterns of official discrimination including instances where the Department of Justice determined that the North Carolina General Assembly acted with discriminatory intent. Id. at *9. Next, the court focused on the timing of SL 2013-381. See id. at *12. According to the record, the law was introduced just days after the Shelby decision, which eliminated North Carolina’s preclearance requirement. Id. Additionally, the House voted on concurrence in the Senate’s version of SL 2013-381, rather than sending it to a committee. Id. According to the court, “[t]his hurried pace . . . strongly suggest[ed] an attempt to avoid in-depth scrutiny.” Id.
The court then went into great detail explaining the legislative history and impact of SL 2013-381. See id. at *14. Prior to and during the limited debate on the law, the General Assembly requested a breakdown by race of DMV-issued ID ownership, absentee voting, early voting, same-day registration, and provisional voting, including out-of-precinct voting. Id. The data revealed that African Americans disproportionately used the first seven days of early voting, same-day registration, and out-of-precinct voting, and African Americans disproportionately lacked DMV-issued IDs. Id. The data also revealed that whites disproportionately used absentee voting, not African Americans. Id. SL 2013-381 restricted all of these forms of access to voting but exempted absentee voting from the photo ID requirement. Id. The court reasoned that the cumulative impact of the challenged provisions of SL 2013-381 bore more heavily on African Americans, thereby creating a disproportionate impact. Id. at *15.
After determining that race was a factor motivating the enactment of the challenged provisions of SL 2013-381, the court examined the state’s proffered non-racial interest in enacting the law. Id. at *17. In enacting the photo ID requirement, the General Assembly stated that it sought to combat voter fraud and promote public confidence in the electoral system. Id. at *18. The court concluded that the photo ID requirement was both too restrictive and not restrictive enough to effectively prevent voter fraud. Id. at *19. The requirement would only impact in-person voter fraud, not absentee voting, making the requirement too restrictive.[1] Id. However, the law allowed voters who lacked the qualifying ID to apply for a free voter card using two of the very same forms of ID excluded by the law. Id. The court concluded that SL 2013-381 “creat[ed] hoops through which certain citizens must jump with little discernable gain in deterrence of voter fraud.” Id.
Finally, the court emphasized the manner in which race and party lines were inexorably linked in North Carolina. Id. at *10. For example, 85% of African American voters in North Carolina voted for John Kerry in 2004, and 95% voted for President Obama in 2008. Id. In comparison, only 27% of white North Carolinians voted for John Kerry, and only 35% voted for President Obama. Id. According to the court, the General Assembly knew that African American voters were highly likely to vote for Democratic candidates, while white voters were unlikely to vote for those same candidates. Id. While using race as a proxy for a party may be an effective way to win an election, the court concluded that “intentionally targeting a particular race’s access to the franchise because its members vote for a particular party . . . constitutes discriminatory purpose. This is so even absent any evidence of race-based hatred and despite the obvious political dynamics.” Id. at *8.
After assessing the totality of the circumstances, the court concluded that, at least in part, discriminatory racial intent motivated the enactment of the challenged provisions in SL 2013-381. Id. at *17. The district court erred in holding otherwise, an error that resulted from the district court’s consideration of each piece of evidence in a vacuum rather than as a whole. See id. Accordingly, the court severed the challenged provisions from the remainder of the law. Id. at *22.
North Carolina Governor Pat McCrory has asked the Supreme Court to stay the Fourth Circuit’s ruling and reinstate SL 2013-381. Ariane de Vogue, North Carolina Appeals Voter ID Ruling to Supreme Court, CNN Politics (Aug. 15, 2016, 9:13 PM), http://www.cnn.com/2016/08/15/politics/voter-id-north-carolina-appeal-supreme-court/. However, an appeal to the Supreme Court may not bring about any change to the status of SL 2013-381 in time for the election. The Supreme Court has expressed that it does not like courts interfering with election laws so close to an election. See Purcell v. Gonzalez, 549 U.S. 1, 4–5 (2006). Blocking a last minute challenge to voting laws in Arizona, the Purcell court stated, “Court orders affecting elections, especially conflicting orders, can themselves result in voter confusion and consequent incentive to remain away from the polls. As an election draws closer, that risk will increase.” Id. Further, only eight justices sit on the Supreme Court since the death of Justice Antonin Scalia in February of 2016. If the Supreme Court were to review the appeal and split four-to-four, the Fourth Circuit’s decision would stand. See Durant v. Essex Co., 74 U.S. 107, 110 (1868) (holding that the Supreme Court will take no affirmative action in a cause where the judges are equally divided in opinion as to the judgment to be rendered). With November right around the corner, North Carolina voters must now wait on a decision by the Supreme Court.
[1] North Carolina failed to identify a single person charged with committing in-person voter fraud in the state; however, the General Assembly did have evidence of alleged cases of mail-in absentee voter fraud. McCrory, 2016 WL 4053033, at *19.
* Ashley Triplett is a second-year law student at the University of Baltimore School of Law, where she is a staff editor for Law Review. In the summer of 2016, Ashley worked as a Summer Associate for Miles & Stockbridge, PC where she will return to work for the summer of 2017.
University of Baltimore Law Review 