by Mitch Kokai
Senior Political Analyst, John Locke Foundation
I cringed when reading the following sentence in this morning‘s Raleigh News & Observer:
But that 2013 law was later struck down in federal court, after challengers proved the legislature wrote it to “target African-Americans with almost surgical precision.”
Proved? Well, not exactly. This latest reference to the “almost surgical precision” language reminds me of a 2018 column from Carolina Journal Online.
Critics of North Carolina’s Republican-led General Assembly like to quote the words “almost surgical precision.” It’s unfortunate that those critics wield the phrase with such sloppiness that they obscure its original meaning. …
… In June 2013 the U.S. Supreme Court issued its opinion in Shelby County v. Holder. The 5-4 ruling in that Alabama case tossed out a decades-old “coverage formula.” The formula determined which portions of the American states would be forced to submit any proposed election procedure changes to the U.S. Justice Department. Without so-called preclearance from Justice, no state could change its election maps, days and hours of polling, or other elements of the voting process.
Since many N.C. counties had been subjected to the federal preclearance requirement, this state was bound to see a direct impact from the Shelby County case. Shortly after the ruling, legislators rolled out an elections bill designed to make significant changes to N.C. voting rules.
A new voter ID requirement grabbed the headlines. But that was just one element of the bill. It also restricted days and hours of early voting. It eliminated same-day voting registration and blocked people from voting outside their designated precincts. It ended preregistration for 16- and 17-year-olds ineligible to vote in the current election. …
… By the time a court finally ruled on the merits of the dispute — three years later — U.S. District Court Judge Thomas Schroeder rejected the critics’ arguments. A George W. Bush appointee, Schroeder had conducted a two-part trial spanning more than four work weeks. He considered testimony from 21 experts and heard from more than 100 other witnesses. The official record featured more than 25,000 pages of documents.
Schroeder’s own April 2016 opinion covered 485 pages. He documented in detail why the 2013 N.C. election law withstood critics’ challenges.
Despite the trial judge’s meticulous attention to detail, he served as neither the source nor the object of the “almost surgical precision” language. That description arrived two months later.
Noting that “[w]e appreciate and commend the court on its thoroughness,” a three-judge panel of the 4th U.S. Circuit Court of Appeals nonetheless reversed Schroeder’s findings. Writing for the appellate panel, Judge Diana Gribbon Motz concluded “the court seems to have missed the forest in carefully surveying the many trees.”
Rather than respond to Schroeder’s survey, the Clinton appointee Motz and her colleagues, both Obama appointees, built a legal narrative based on North Carolina’s history of racially polarized voting. They latched on to the idea that the 2013 voting law “enacted legislation that restricted voting and registration in five different ways, all of which disproportionately affected African Americans.”
The appellate judges didn’t accept Republican legislators’ policy choices. “In response to claims that intentional racial discrimination animated its action, the State offered only meager justifications,” Motz wrote for the three-judge panel. “Although the new provisions target African Americans with almost surgical precision, they constitute inapt remedies for the problems assertedly justifying them and, in fact, impose cures for problems that did not exist. Thus the asserted justifications cannot and do not conceal the State’s true motivation.”
You’ll search in vain within the 83-page appellate opinion for proof of that “true motivation.” Motz relied instead on circumstantial evidence. She also alluded to North Carolina’s spotty historical record of protecting minority voting rights. Of course, the state compiled that record during years of mostly Democratic control of state government.
So challengers of the 2013 election law actually “proved” nothing. They convinced a panel of Democratic judges that a cluster of election-related changes must have been targeted at hurting African-Americans because of state history.
Another point worth repeating:
[V]oter ID, by itself, did not prompt Motz to adopt her memorable phrase. She was responding instead to a group of voting changes lumped together within the 2013 law.
Motz also dissented from her colleagues when they determined the proper remedy for addressing the state’s original voter ID requirement. While the other two judges agreed to jettison voter ID completely, Motz would have taken a different approach.
She pointed to a 2015 state law that permitted a voter without ID to cast a provisional ballot. The voter could declare that he had suffered a “reasonable impediment” that blocked him from obtaining an acceptable ID.
“[B]y its terms, the exception totally excuses the discriminatory photo ID requirement,” Motz wrote in dissent. “Of course, in practice, it may not do so. But on this record, I believe we cannot assess whether, or to what extent,” the reasonable impediment provision “cures” what ailed the photo ID provision.
In other words, the author of the “almost surgical precision” language did not reject voter ID completely. She was willing to give state lawmakers an opportunity to prove that they could use voter ID without causing significant harm to minority voters.
The “almost surgical provision” phrase is memorable. It’s too bad that people who use it fail to remember its proper context.