For as long as anyone can remember, voters in North Carolina have proved their identity by announcing their names and addresses at the polls and signing an affidavit that they are who they say they are. In 2013, despite the fact that there were virtually no documented instances of fraud in connection with this practice, the General Assembly passed the Voter Identification Verification Act (VIVA). VIVA represented one of the nation’s most restrictive voting laws by requiring voters to present one of only seven types of photo ID in order for their votes to count.
Within hours of VIVA’s passage, lawsuits were filed in federal and state court challenging its constitutionality. Along with lawyers from the Southern Coalition for Social Justice, I represent clients in the state court challenge. For nearly two years, we have worked to develop the evidence necessary to show that VIVA was unconstitutional.
Just last Thursday, days before a critical hearing in the case, the General Assembly amended VIVA to effectively remove the challenged photo ID requirement. In other words, under the law as now amended, voters without the requisite ID will be able to essentially do what all voters have done in the past by simply signing an affidavit stating that they have a “reasonable impediment” to obtaining a photo ID.
After a two-year stand-off, as a former Secretary of State said in a different context, “the other guy just blinked.”
The General Assembly’s about-face arose in the context of an extraordinary amount of evidence concerning VIVA’s constitutional infirmities. Witnesses from all over the state testified about the difficulties encountered in trying to obtain IDs from the Department of Motor Vehicles in whose hands the primary mechanisms for voting – one of our paramount rights – had unwisely been placed by the General Assembly.
We obtained the testimony of an 85-year-old double-amputee, a man who had marched for voting rights in Selma, who simply could not travel to the DMV to get his ID for voting. Others lived in counties where a DMV mobile unit visited only once a month. Many voters made multiple unsuccessful trips to the DMV as they tried to negotiate the complex voter ID bureaucracy whose harried personnel were also trying to process car registrations and administer driving tests. The evidence showed wait times of up to four hours.
These harrowing anecdotes represented more than the personal stories of registered voters who had voted for years. One of our experts, Professor Kevin Quinn from Berkeley Law School, calculated that over 380,000 North Carolinians representing nearly 5.9 percent of all registered North Carolina voters lacked the required ID.
Not surprisingly, African-American voters were twice as likely to lack the required photo ID
as white voters. Another expert, Professor Stuart Shapiro of Rutgers, calculated that the total cost of compliance for voters to obtain IDs ranged from $4.8 million to $9 million. In other words, the General Assembly’s enactment of VIVA placed a multimillion-dollar burden on some of North Carolina’s poorest and oldest citizens just so that they could exercise their right to vote.
If the motives needed further explication, yet another expert, Professor Keith Bentele of the University of Massachusetts-Boston, analyzed the passage of VIVA with respect to the other nationwide examples of voting restrictions and determined that VIVA was “highly consistent with where and what one would expect to see in the passage of such legislation if minority voter suppression was a motivating factor.” A final expert, Dr. Anthony Greenwald, found that implicit biases would have a disproportionate, negative impact on African-Americans trying to get photo IDs and presenting those IDs at the polls.
In the end, VIVA was simply indefensible (notwithstanding the millions spent trying to defend it). The General Assembly recognized that going back to something approximating the old way was the best way to salvage a bad situation.
The question now is what North Carolina does to allay the confusion bound to result from the change in the law. At the 2014 election, all voters were required to acknowledge that they understood that one of the seven restrictive IDs would be required in the 2016 election. The State sent out 218,000 letters to the same effect to the registered voters for which it could not find the requisite ID.
Now that VIVA has been turned on its head, the state’s job is to make sure that those voters who might think that they are unable to vote next year are educated about the change in the law.
Press Millen is a trial lawyer in the Raleigh office of Womble Carlyle Sandridge & Rice, LLP.