In ruling 3-0 that the N.C. omnibus election bill violated the 14th Amendment to the U.S. Constitution and Section 2 of the Voting Rights Act, the U.S. Court of Appeals for the Fourth Circuit concluded that our General Assembly acted with racially discriminatory intent.
Central to the court’s analysis were undisputed facts showing that – after collecting data on voting practices of African-American citizens – our General Assembly adopted voting restrictions that targeted “with surgical precision” only certain voting options that African-American voters have relied on to a greater extent than white voters. These options included early voting, same day registration and voting out of precinct.
The court found highly significant this history: Our General Assembly launched its study leading to the omnibus election bill within days after the Supreme Court ruled in 2013 that North Carolina (and other states in the South) no longer had an obligation to “pre-clear” revisions in its voting laws. The Fourth Circuit reasoned that the justifications the General Assembly offered for its new voting restrictions failed to demonstrate that these restrictions would have become law without an intention to discriminate. “In many ways, the challenged provisions … constitute solutions in search of a problem. The only clear factor linking these various ‘reforms’ is their impact on African-American voters.”
The court recognized the state’s interest in preventing voter fraud, observing that ID requirements may provide a useful safeguard. But the particular ID provisions in the Omnibus Bill were “irrational” – the law authorized some forms of government ID but rejected others, including forms of valid government-issued ID held disproportionately by African-Americans.
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Within hours following the Fourth Circuit’s ruling, N.C. Senate leader Phil Berger and N.C. House Speaker Tim Moore issued this statement:
“Since today’s decision by three partisan Democrats ignores legal precedent, ignores the fact that other federal courts have used North Carolina’s law as a model, and ignores the fact that a majority of other states have similar protections in place, we can only wonder if the intent is to reopen the door for voter fraud, potentially allowing fellow Democrat politicians like Hillary Clinton and Roy Cooper to steal the election. We will obviously be appealing this politically motivated decision to the Supreme Court.”
Both Berger and Moore are lawyers, trained to recognize and respect the essential role of an independent judiciary to our democracy. Whether or not one agrees with the Fourth Circuit court’s ruling – and the purpose here is not primarily to defend the ruling – Berger and Moore’s statement casts doubt on the integrity and independence of the U.S. Court of Appeals and, by extension, the entire judiciary. Their statement encourages our citizens to believe that judges make decisions based on their political viewpoints or other biases, rather than on the law and the evidence before them. Most troubling is their “wondering” if these respected federal judges are accomplices to an effort to “steal” the elections this November.
Berger and Moore’s encouragement of such a cynical view of the courts may find a ready audience. The courts and the legal profession face an ever-present challenge to combat both perceptions and realities that undercut public confidence in the courts. To be sure, there are fair critiques to be made of judicial rulings, but Berger and Moore’s decision to accuse good judges of rank partisanship bears no resemblance to a fair critique. Since they are lawyers who are also leaders in government, their statement may well carry great weight with an already skeptical public. Thankfully, there are members of that public who will recognize that Berger and Moore’s resort to partisan accusation shows they have no real answer to undisputed facts the court relied on to find racially discriminatory intent.
Lawyers including Berger and Moore have better opportunity than the general citizenry, through education and experience, to grasp the key role of an independent judiciary in our form of government. We hold to the ideal that judges apply the law equally, without favor for or bias against any person, private or public, rich or poor, regardless of race.
The independence of our judiciary distinguishes our form of government from autocracies past and present. When leading public officials who are lawyers recklessly tell our citizens that judges have ruled to suit the judges’ politics, they tell the public we do not have an independent judiciary. “Politics as usual” does not justify the harm this attack causes.
J. Dickson Phillips III is a partner in the Research Triangle Office of the law firm Robinson, Bradshaw & Hinson, P.A.