On June 25, 2013, the U.S. Supreme Court struck down a federal law that required states that discriminated against certain voters in the 1960s to have new voting laws approved by the federal government. One day later, the North Carolina General Assembly – newly freed from the “preclearance” requirement – introduced a law that created a voter ID requirement, cut back on early voting and erected other barriers to voting.
Legislators asked their staff for information on how African-Americans voted and then included provisions that would make it harder for them to vote. Hundreds of thousands of voters lacked the required ID, and the law is estimated to have caused 30,000 fewer voters to participate in the 2014 election.
A federal court later ruled that the law targeted black voters “with almost surgical precision.” The U.S. Supreme Court declined to review this ruling earlier this year, and it also upheld rulings that the General Assembly’s 2011 redistricting maps discriminate against black voters. The North Carolina Supreme Court will also review the maps, as well as a law that gives the legislature more control over elections.
With the courts blocking their voter-suppression agenda, conservative politicians in Washington and Raleigh alike are pushing to get their preferred judges on North Carolina’s courts. President Trump, in fact, has nominated Thomas Farr, the lawyer who unsuccessfully defended the 2013 voting law and the 2011 redistricting maps, to a lifetime seat as a federal judge.
Farr also defended the 1992 campaign of Jesse Helms, a lifelong opponent of civil rights laws, amid accusations of intimidating black voters. The campaign mailed misleading postcards to black voters suggesting they were not properly registered and could face jail time for voter fraud. Rep. G.K. Butterfield, a former judge, asked whether Farr can “impartially serve as a judge in cases involving voting and civil rights.” At his hearing before the Senate Judiciary Committee (on Wednesday), Farr faced tough questions about his defense of the 2013 voting law.
Farr has been nominated to fill the longest-running vacancy on the federal courts. Sen. Richard Burr refused to sign off on President Obama’s two nominees, including a judge he actually recommended to the president. President Obama nominated two African-American women to the seat, in a district that has never had a black judge even though one-fourth of its residents are black.
Farr’s former client, the General Assembly, is also considering a bill to gerrymander judges in ways that could harm judicial diversity. A legislative aide said the bill is intended to get more Republican judges on the bench, according to a report from N.C. Policy Watch.
Rep. Justin Burr introduced his first plan to gerrymander judges on Twitter earlier this year, and he was criticized for trying to rush a bill through without input from judges and other stakeholders. Some raised concerns about how the new districts could impact diversity. Rep. Burr claimed that his bill would undo Democrats’ prior gerrymandering, but the bill would actually undo districts that were drawn after a 1986 Voting Rights Act lawsuit created an opportunity for black voters to have an equal say in electing judges.
Judicial gerrymandering is the General Assembly’s latest attempt to re-shape the courts into rubber stamps for their agenda. In 2017, legislators have considered bills that would give it more authority over picking judges, bring back partisan judicial elections, pack the state supreme court, and “unpack” the court of appeals to prevent the governor from filling upcoming vacancies. Judge Bob Orr, a retired Republican, has said these fights over the judiciary are all about the redistricting lawsuits. Legislators could soon propose an amendment to the North Carolina constitution that would transfer the governor’s authority to appoint judges to the General Assembly – the ultimate power grab over the courts.
North Carolinians who object to these changes should speak out in defense of the state constitution’s system of checks and balances. The Senate should also scrutinize Farr’s record of defending voter suppression before voting on whether to give him a lifetime appointment to a federal court.
As we approach the 2018 and 2020 elections, the courts will become even more important to protecting voting rights. With looming threats at the state and federal level, the courts are the only institutions that can protect the rights of North Carolinians to vote and participate in our democracy. We must protect the courts that protect our rights.
Billy Corriher of Shelby is the Director of Research for Legal Progress at the Center for American Progress.