State Politics

US judge has many questions in NC voting rights case

U.S. District Judge Thomas Schroeder interrupted attorneys numerous times with questions during closing arguments Friday at the North Carolina voting rights trial.

The federal judge is presiding over a nationally-watched case that could test the breadth of protections for African-Americans with claims of voter disenfranchisement two years after the U.S. Supreme Court invalidated a key provision of the 1965 Voting Rights Act.

The NAACP, League of Women Voters, the U.S. Justice Department and others contend that four parts of the 2013 overhaul to North Carolina’s election laws are intended to disenfranchise black, Hispanic and young voters.

The 57-page omnibus package, referred to as House Bill 589, rolled back at least four measures that civil rights leaders consider a large part of the reason that African-American voter turnout increased greatly between 2006 and 2012.

Throughout closing arguments that were stretched from a projected three hours to more than five because of all the questions, Schroeder asked the attorneys how he should measure parity in voting.

“At some point, the court is going to face the question of ‘When is there parity? When are you satisfied?’” he said.

The trial wrapped on Friday, and now all await the judge’s ruling.

The challengers of the elections law, which also includes a new voter ID requirement that is not contested by the lawsuit, contend the Republican-led legislature knowingly adopted it after the Supreme Court invalidated a part of the Voting Rights Act that required many Southern states, including North Carolina, to get federal approval before making changes.

Once that requirement was removed, the legislature acted swiftly to expand what had been a 14-page bill to the much more expansive one that was adopted along party lines.

Daniel Donovan, a lawyer with Kirkland and Ellis representing the challengers, laid out many of the common themes argued during the past three weeks. Blacks were more likely to use same-day registration, out-of-precinct voting and early voting, Donovan said, three areas changed by the 2013 law.

The changes lopped a week off the early voting period, though hours each day were extended. The overhaul ended the practice of registering to vote and casting a ballot that same day. The law also prohibits people from casting ballots out of their home precinct and ends a popular pre-registration program for 16- and 17-year-olds.

While it is impossible to know how many people did not register or vote in 2014 because of the changes, data show that 11,000 people who registered in North Carolina less than 25 days before Election Day were unable to vote when they could have under previous rules, Donovan said.

Thomas Farr, an attorney representing the state, discounted those claims in closing arguments, pointing out that black turnout was higher in 2014 than 2010.

Schroeder mentioned several times to the army of attorneys before him that he was aware of the national context in which his North Carolina-based decision would fit.

The trial is the first full test of voting measures adopted after the U.S. Supreme Court decision in Shelby County v. Holder, which invalidated Section 5 of the landmark Voting Rights Act. The judge asked state attorneys why lawmakers had curbed or ended programs that had been so popular among black voters.

He also asked the challengers why they had argued that black turnout might have been even higher in 2014, rather than plateauing after sharp increases in 2008 and 2012, but did not present expert testimony providing data showing what it should have been.

Schroeder told the attorneys he struggled to find a baseline for measuring what registration should be.

He turned challenger arguments on their head, asking whether the previous legislative votes that established early voting and same-day registration might have been discriminatory to white voters. North Carolina offers early voting, and not all states do.

He also pondered whether the Democrat-led General Assembly that approved those changes adopted them to make it easier for black voters because they predominately vote Democratic.

Donovan, Allison Riggs, staff attorney for the Southern Coalition for Social Justice, and Burt Russ, an attorney for the U.S. Justice Department, pointed out provisions of the U.S. Constitution and Voting Rights Act that they thought bolstered their positions against taking away measures that black voters use at a higher rate than whites.

“I think what we need to keep in mind is all these practices were repealed at the same time,” Donovan said.

Donovan argued to Schroeder that Section 2, a provision of the Voting Rights Act that stands today, prohibits election law changes that have a disproportionately negative impact on racial minorities.

“No right is more basic than the right to vote,” Donovan said in his closing arguments before the judge began peppering him with questions.

What the judge will weigh as he ponders the case in the coming weeks is whether the challengers met the burden of proof in their disenfranchisement claims.

If Schroeder finds that to be the case, he also must weigh what remedies would be acceptable.

He asked the attorneys whether the only option would be to roll back the 2013 changes, and if so, did that mean that he was sending a message that states that passed such measures never could roll them back.

“If I grant relief,” Schroeder said, “I still have to determine when is enough enough.”

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