NC’s voter ID trial ends with a big question: What does it mean to be racist?
Over three weeks last month a court battle played out that was, on its face, about North Carolina’s newest version of a voter ID law from 2018.
But at its heart was a much deeper question: What does it mean to be racist?
Both sides — Republican politicians defending the voter ID law and liberal activists saying it discriminates against minority voters — argued over many details, big and small, during the trial that ended April 30. There was witness testimony, historical analysis and statistical reports that the three judges who heard the case will use as they make their decision in the coming days.
Both sides agreed that none of the legislators who supported the 2018 law explicitly said Black people shouldn’t be allowed to vote, or anything similar.
A previous voter ID law from 2013 was ruled unconstitutional and racially discriminatory. However, the new version of the law allows more types of IDs and is less strict on what happens with voters who lack IDs. It’s also now a state constitutional amendment, not just a law, after having been approved by voters in 2018.
For the GOP lawmakers defending the law, that should settle the question. They learned their lesson and made the appropriate fixes, they say.
But for the challengers, it’s not so simple. They say there has been a generations-long effort to stop Black people from voting, and while this might not be as extreme as past attempts — whether from the 1890s or 2013 — it is nevertheless in the same vein.
One particularly illuminating exchange during the trial happened after UNC-Chapel Hill historian James Leloudis, testifying for the challengers, said Black people are more likely than white people to be affected by poverty and to work jobs they can’t leave during normal business hours to go get or update an ID.
To him, Leloudis said, that sort of systemic racism means requiring an ID to vote is part of a “pattern of measures that seem on their face race-neutral, but in practice have a profound discriminatory effect.”
Washington lawyer David Thompson, the lead attorney for Republican lawmakers, later pressed Leloudis on that pattern. At several points Thompson acknowledged a history of racist voter suppression in the United States, and in North Carolina specifically, but said it’s firmly in the past.
The following is a part of his cross-examination.
Thompson: “You haven’t included any instances of violence against African Americans at the polls in North Carolina this century, have you, in your report?”
Leloudis: “This century? No.”
Thompson: “And you would have if you knew about it, right?”
Leloudis: “If I knew about it, certainly.”
Thompson: “And does that reflect that the pattern you’ve identified — to the extent it exists — these are echoes? I mean, there aren’t people being murdered. There aren’t coups in Wilmington, there isn’t violence, there isn’t racial appeals. Isn’t this a very faint echo, at most, from the dreadful history of 100 years ago?”
Leloudis: “We’re talking about 2020 versus 1900. … I don’t think that does anything to undermine the concerns that I laid out, in terms of the demographic facts of North Carolina, that suggest (the voter ID law) has a significant potential to create two classes of voters. And that, really, is the echo.”
Echoes of racism
That short exchange can’t sum up a three-week trial. But it does illustrate a few of its overarching themes.
From the GOP lawmakers came arguments that the United States does have a history of racist voter suppression, but that race relations have improved immensely and voter ID looks nothing like those laws of the past. It’s meant to increase confidence in elections, they say, not to discriminate.
From the liberal challengers came arguments that race relations may have improved but have not been solved. And even if politicians don’t publicly announce racist intentions anymore, they say, that doesn’t mean they’re not still acting on such an intent or at least passing laws that have similar results.
Video of the entire trial is publicly available for those who want to watch it. Search for “Wake County Superior Court” on YouTube; it’s currently the only set of videos on that channel. For those who don’t have the time or desire to watch dozens of hours of court proceedings, however, here are a few of the highlights.
Can Black people be racist against themselves?
Republican lawmakers said, in their defense, that a handful of Black Democrats in the legislature supported voter ID in 2018. One was even among the bill’s primary sponsors.
The challengers said that doesn’t matter. Even Black people can be influenced by “white rage” and vote against their own interests, argued one of their expert witnesses.
The Black Democrat who co-sponsored the bill was Joel Ford, a former state senator from Charlotte. He lost a primary and was voted out of office in 2018, the same year he backed the voter ID bill.
Earlier this year, just before the trial began, Ford became the only Democrat appointed to a seat on the UNC System’s Board of Governors by the Republican-led Senate. The challengers heavily implied that was related to Ford’s continued support of voter ID, which Republican leaders have since denied.
Ford said in the trial that “maybe I was politically naive” but in 2018 he wanted to work with Republicans on a compromise, rather than toeing the Democratic party line and opposing voter ID.
Ford said Republicans could have passed whatever they wanted, since at the time they had a veto-proof supermajority. But lending his public support to the bill, he said, gave him leverage to get some changes made to the bill.
“I just did not want to pass up an opportunity, like I did in previous pieces of legislation, to work to improve the legislation to make sure that my constituents’ — which were majority Democrats and a large number of Black North Carolinians — interest was represented,” he testified. “I feel that way now and I felt that way then.”
On the other side was Carol Anderson, the chair of the African American Studies department at Emory University, who has written a book called “White Rage: The Unspoken Truth of Our Racial Divide.” She said during the trial that not all white people have white rage, and that some Black people do.
“White rage is about a policy,” she said. “Policies that are put in place to undermine African Americans’ advancement. How and who puts those policies in place, that is not race dependent. That is not party dependent.”
Thompson pressed her repeatedly about her white rage theory, drawing unsuccessful objections from the challengers’ attorneys trying to stop that line of questioning. He also got Anderson to acknowledge that originally she didn’t know Ford was Black — and that she hadn’t even read the voter ID law she was in court to testify against.
Anderson said she had done other research, like reading transcripts of the debate about it in the legislature, and court documents about the prior 2013 voter ID law.
She referenced that 2013 law again — and specifically the 2016 court ruling that said GOP legislators wrote it to “target African Americans with almost surgical precision” — when she told Thompson, in reply to another question, that: “I think that what Republicans want is an America that ... is trying to recreate an era, a bygone era, that we have fought so hard to rid ourselves of.”
Ford, however, said opponents of voter ID are overreacting.
“One of my grandmothers actually did have ID; the other one didn’t,” he said. “And the last thing that I wanted to do was support a piece of legislation that would have prevented them from voting.”
The law changed. What about its supporters?
Thompson said the challengers kept pointing to that 2013 law, and the 2016 court ruling that it was racially motivated, because they don’t have better arguments about the 2018 law they’re trying to overturn.
“Because no racist legislator, no racially motivated legislature ever would have enacted this law, they try to divert the court’s attention to a different law,” he said.
The new law has a longer list of acceptable IDs, he said, and more permissive rules for letting people who have impediments to getting an ID vote without one. He listed off other pieces of the new law he said are improvements from 2013, to make it more inclusive.
“A racially motivated legislature would not have done any of these things, let alone all of them,” he said. “And they have no answer to that.”
But to the challengers, one can’t ignore the fact that the legislature passed what a court concluded was a racially motivated law in 2013, had it struck down as unconstitutional in 2016, and then rewrote it in 2018 after the elections, passing it in a lame-duck session just days before the Republican Party lost its supermajority at the legislature.
Judges have split on that argument in the past, in both this lawsuit and in a federal lawsuit filed by the NAACP that makes many of the same claims. Both lawsuits led to early-stage victories for the challengers when judges in state and federal court ruled the voter ID law appeared to likely be unconstitutional.
However, that initial ruling in federal court was reversed on appeal, The News & Observer reported in December. The first judge was deemed to have focused too heavily on the fact that most of the same lawmakers who wrote or supported the 2013 law were involved in the 2018 law, too.
“A legislature’s past acts do not condemn the acts of a later legislature, which we must presume acts in good faith,” the 4th U.S. Circuit Court of Appeals wrote.
Yet it’s not just the 2013 law that the judges in this state lawsuit should consider, Anderson said during the recent trial, but much of American history.
“There is a pattern of lawmakers looking at Black political power, Black political advocacy and electoral power, and then responding with a series of laws to undercut that Black political power,” she said. “So SB 824 (the 2018 voter ID law) is in line with that pattern.”
The 2013 voter ID law was passed just after America reelected its first Black president, Anderson said. And in 2018, lawmakers ratified the voter ID constitutional amendment to be on the ballot a day after the U.S. Supreme Court’s ruling in a high-profile gerrymandering case.
“They were likely to lose seats when racially gerrymandered districts were fairly redrawn,” attorney Paul Brachman said in his closing arguments for the challengers. “They responded by placing the voter ID constitutional amendment on the ballot.”
Thompson, however, said all the challengers have is speculation and innuendo about supposed racial intentions — no smoking gun.
“They have no direct evidence, none whatsoever ... of racial discrimination,” he said. “So what they’re asking this court to do is infer that intent.”
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This story was originally published May 9, 2021 at 5:30 AM with the headline "NC’s voter ID trial ends with a big question: What does it mean to be racist?."
