The legal fight over North Carolina's sweeping election overhaul played out one step below the U.S. Supreme Court on Tuesday. The U.S. Justice Department, the North Carolina NAACP and others tried to convince the federal appeals court in Virginia that the 2013 law is discriminatory.
In her opening argument, U.S. Justice Department attorney Anna Baldwin framed the case this way:
“The North Carolina legislature acted to block growing African-American political power just as black North Carolinians had begun to experience real political gains,” she said.
African-American turnout has surged in North Carolina since the early 2000s, a period that lines up with the creation of early voting, same-day registration and out-of-precinct voting.
When Republicans gained control of the legislature and the governor's mansion in 2013, they reduced or eliminated those options, and created a photo ID requirement.
An attorney representing the North Carolina NAACP, Penda Hair, says the facts are clear.
“African-Americans disproportionately use same-day registration, out of precinct and the other eliminated practices, and disproportionately do not have photo ID,” she said.
A lower court judge in Winston-Salem, Thomas Schroeder, agreed with those facts. But he upheld the changes, saying African-Americans still have an equal opportunity to vote.
He noted the overhaul puts North Carolina's election procedures in line with most other states. And he pointed out African-American turnout increased in the 2014 midterm, after the changes.
The Justice Department attorney, Baldwin, took issue with that before the appeals judges.
“It's elevating turnout over every other kind of metric – as long as aggregate turnout goes up, as long as more black voters voted in 2014 than voted in 2010, you can't have a discriminatory burden,” she said. “That's simply not the case.”
Baldwin says it ignores lawmakers' intent. That's a topic judge James Wynn had a lot of questions about.
“In terms of intentional discrimination, there are some facts here that bear at least some comment,” he told the lawyers.
For example, the legislation started as a small bill about voter ID. It passed the House and sat in the Senate. Two months later, the U.S. Supreme Court struck down a key part of the Voting Rights Act meant to protect minorities. The result was that North Carolina and other places with a history of discrimination no longer needed federal approval before changing election policies.
Right after that decision, a powerful state senator said, now we can go with the full bill. When it appeared at the end of the session, it was a sweeping overhaul of North Carolina's election rules.
An attorney representing North Carolina, Thomas Farr, addressed that.
“Relying upon the statement of one senator to find intentional discrimination by an entire General Assembly is a very slim reed to rest your finding on,” he said.
The state's attorneys have said the overhaul was about political differences: Democrats liked one set of policies; Republicans gained control and had their own preferences.
But Judge Henry Floyd said when you consider the timing with the Supreme Court decision, “It looks pretty bad to me in terms of purposeful discrimination.”
“Well, your honor,” Farr responded, “I hope that I can persuade you that it was not a nefarious thing.”
Farr pointed out the lower court judge has already heard that argument and ruled in the state's favor. And Farr says there's no proof the things Republicans took away were the reason African-American turnout improved so much.
“There are states like North Carolina, such as Virginia, where the black turnout and registration rates went up at equivalent rates, and Virginia did not have same-day registration and out-of-precinct voting and 17 days of early voting,” he said.
Farr has argued the improvements could be more about the Obama campaigns than anything else.
Judge Wynn kept cutting Farr off to ask additional questions, like how much lawmakers knew about the demographic data when they passed the law and why the state doesn't count certain kinds of IDs. It got testy.
“Well, let me ask you a question, your honor,” Farr said at one point.
“No, you don't ask me questions, Mr. Farr,” judge Wynn replied to some laughter.
Judge Wynn noted he and Farr have been together a lot. For example, this three-judge panel is the same one that heard arguments in an earlier phase of this case almost two years ago, when the debate was over a preliminary injunction.
The judges also asked how much time they have to make a decision with the election coming up. North Carolina attorney Alexander Peters said it would already be difficult for the state to recode its election system.
That prompted Judge Diana Gribbon Motz to say, “So there's no way that we can issue an opinion that does anything, is that the bottom line here?”
“No, that’s not what I’m saying, your honor,” Peters replied. He said bottom line, it gets a lot harder to make changes after early August.
Whatever the three-judge panel decides, this case will likely get appealed to the U.S. Supreme Court.