by Jon Guze
Senior Fellow, Legal Studies, John Locke Foundation
North Carolina’s election laws haven’t fared very well lately in the US Court of Appeals for the Fourth Circuit. On July 1st the Court struck down changes to Wake County’s electoral districts that were enacted in 2013 and 2015, and on July 29 the Court struck down changes to North Carolina election procedures that were enacted in 2013. In both cases, Democratic judges found that Republican legislators had violated the voting rights of African Americans.
When I discussed the July 1st decision in a previous Update I noted that, “Racial gerrymandering is no longer about race; it’s about politics.” Much the same can be said about procedural changes like the ones the Court of Appeals struck down on the 29th.
Prior to 2010, at a time when they controlled both houses of the legislature and the governor’s office, the Democrats took steps to make voting as easy as possible in North Carolina. They enacted laws providing for up to seventeen days of early voting, out-of-precinct voting, same-day registration, and pre-registration for 16 and 17 year-olds, and they left in place the traditional, relaxed approach to voter identification under which poll workers merely asked would-be voters to sign forms attesting to their identities.
In 2013, after they took control of both houses of the legislature and the governor’s office, the Republicans took steps to made voting harder. They enacting a law that shortened the early voting period to 10 days, eliminated same-day registration and pre-registration, placed new restrictions on out-of-precinct voting, and—most controversially of all—required voters to produce government issued IDs at polling places.
Several groups of plaintiffs immediately challenged these changes as a violation of federal election law. The US District Court for the Middle District of North Carolina, however, dismissed their complaints. In a 479-page opinion that analyzed the evidence in meticulous detail, Judge Schroeder found that:
After twenty-five days of trial and reviewing over 20,000 pages of record and the testimony of over 20 expert and 100 fact witnesses, and after considerable reflection, the court is in a position to evaluate the effect of [the new law] based on actual historical facts, rather than speculation.
The evidence shows that African Americans have fared better in terms of registration and turnout rates in 2014, after the new law was implemented, than in 2010, when the old provisions were in place…. African American turnout not only increased but did so at a greater rate than that of other groups (including whites). In fact, the 2014 general election saw the smallest white-African American turnout disparity in any midterm election from 2002 to 2014.
The 2014 data merely confirm what the remaining data suggest: that minorities enjoy equal and constitutionally-compliant opportunity to participate in the electoral process….
On appeal, the Court of Appeals acknowledged that:
An appellate court can reverse a district court’s factual findings only if clearly erroneous.
And it praised the lower court’s diligence:
In evaluating the massive record in this case, the [District Court] issued extensive factual findings. We appreciate and commend the court on its thoroughness. The record evidence provides substantial support for many of its findings; indeed, many rest on uncontested facts.
Nevertheless, citing “the inextricable link between race and politics in North Carolina” the Court Appeals found that:
The court seems to have missed the forest in carefully surveying the many trees. This failure of perspective led the court to ignore … the inextricable link between race and politics in North Carolina….
We do not suggest, that any member of the General Assembly harbored racial hatred or animosity toward any minority group. But the totality of the circumstances—North Carolina’s history of voting discrimination; the surge in African American voting; the legislature’s knowledge that African Americans voting translated into support for one party; and the swift elimination of the tools African Americans had used to vote and imposition of a new barrier at the first opportunity to do so—cumulatively and unmistakably reveal that the General Assembly used [the new law] to entrench itself. It did so by targeting voters who, based on race, were unlikely to vote for the majority party. Even if done for partisan ends, that constituted racial discrimination.
Whether the Court of Appeals was right to reject the District Court’s factual findings on the basis of such an inference remains to be seen. The state has indicated that it will appeal. If the Court of Appeals’ decision in this case and the earlier case are allowed to stand, however, the result will be a double standard under which Democrats may improve their electoral prospects by taking race into consideration when they make changes to legislative boundaries and voting procedures while Republicans may not. That can’t be the way federal election law is supposed to work.
Of course, even if it’s upheld, that double standard will only operate as long as African Americans go on voting as a block for Democrats, and party affiliations can change and change quickly. For over a century African Americans were staunchly devoted to the Republican Party, and for good reason. The Democratic Party, let us not forget, was the party of slavery and the KKK, of Black Codes and Jim Crow, of John Calhoun and Woodrow Wilson and Bull Conner. The Republican Party, on the other hand, was the party of abolition and emancipation, of the first Civil Rights Act and the Reconstruction Amendments, of Abraham Lincoln and Frederick Douglass and James Meredith. The Republicans lost the support of black voters in the 1960s, but there’s no reason why they shouldn’t someday win it back.