Appeals Court Rejects North Carolia Voter Suppression Law: North Carolina NAACP v. McCrory

By Leland Ware  

Louis L. Redding Chair and 

Professor for the Study of 

Law and Public Policy 

University of Delaware 

On July 29, 2016, the Fourth Circuit Court of Appeals struck down North Carolina’s blatant efforts to suppress African American votes. The case began in 2013, after the Supreme Court issued the decision in Shelby County v. Holder, which overturned key provisions of the Voting Rights Act. On the day after Shelby was decided, North Carolina’s Republican-dominated the legislature announced an intention to enact “omnibus” election law. Before proceeding, however, the legislature obtained detailed data that examined, by race, a number of voting practices.

Relying on this data, the General Assembly enacted legislation restricting voting options favored by African Americans. The laws shortened an early voting period by a full week, eliminated same-day registration, prohibited the counting of ballots cast out of precinct, eliminated a preregistration program for 16-and 17-year olds, and implemented a strict photo ID requirement. Many observers called the legislation “the worst voter suppression law in the nation.”

A number of organizations filed suit contending that the legislation was motivated by a discriminatory intent in violation of § 2 of the Voting Rights Act and the Fourteenth and Fifteenth Amendments. They also contended that the laws had a discriminatory effect in violation of § 2 of the Voting Rights Act and burdened the right to vote in contravention of the Fourteenth Amendment.

Despite the mountain of evidence of discrimination that was presented, the trial court rejected the claims finding that the plaintiffs had “failed to show that such disparities will have materially adverse effects on the ability of minority voters to cast a ballot and effectively exercise the electoral franchise.”

The Fourth Circuit reversed. It concluded that the General Assembly enacted the “most restrictive voting law North Carolina has seen since the era of Jim Crow.”  The record showed that the laws were not, as the state contended, the product of the back-and-forth of routine partisan struggle. In fact, the General Assembly enacted the changes in the immediate aftermath of unprecedented African American voter participation in a state with a troubled racial history and racially polarized voting. The Court stated:

In response to claims that intentional racial discrimination animated its action, the State offered only meager justifications. Although the new provisions target African Americans with almost surgical precision, they constitute inapt remedies for the problems assuredly 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.

The Court found that the totality of the circumstances compelled a finding of intentional discrimination. These circumstances included North Carolina’s history of voting discrimination, the dramatic upswing in African American voting, the legislature’s knowledge that African Americans’ voting translated into support for democratic candidates. Additional considerations were the elimination of tools African Americans used to vote and the imposition of new barriers to voting. This evidence showed that the General Assembly used the new voting laws to preserve the Republican majority and did so by targeting black voters.

North Carolina NAACP v. McCrory is a significant win for Civil Rights advocates. It will have an impact on the 2016 presidential election. The radical right wing has developed an array of subtle and overt methods to suppress voter registration and turnout. Voter suppression today is achieved through regulatory, legislative and administrative means, resulting in modern day equivalents to poll taxes and literacy tests that kept Black voters from the ballot box in the Jim Crow era. The laws struck down in North Carolina NAACP v. McCrory are examples of the flagrant institutional racism that continues to haunt us.

Veasey v. Abbott: Federal Appeals Court Rejects Texas Voter ID Law

By Leland Ware 

 

On July 20, 2016, the U. S. Court of Appeals for the Fifth Circuit delivered a strong rebuke to what is widely viewed as the nation’s strictest voter ID law. The court heard the case, en banc, a rarely invoked process in which a full appeals court (as opposed to a panel of three judges) convenes to decide a case. It was a stunning decision by one of the most conservative federal appellate courts in the nation.

In 2011 Texas enacted Senate Bill 14 (“SB 14”), which required individuals to present one of several forms of photo identification to vote. Texas implemented SB 14 by requiring voters to present: (1) a Texas driver’s license or personal identification card issued by the Department of Public Safety (“DPS”); (2) a U.S. military identification card with a photograph; (3) a U.S. citizenship certificate with a photo; (4) a U.S. passport: (5) a license to carry a concealed handgun issued by DPS: or (6) an Election Identification Certificate (“EIC”) issued by DPS.

To secure an EIC Texas residents are required to present either: (A) one form of primary ID, (B) two forms of secondary ID, or (C) one form of secondary ID and two pieces of supporting identification. This meant that any application for an EIC required either a Texas driver’s license or personal identification card or one of the following documents, accompanied by two forms of supporting identification: (1) an original or certified copy of a birth certificate from the appropriate state agency; (2) an original or certified copy of a United States Department of State Certification of Birth for a U.S. citizen born abroad; (3) U.S. citizenship or naturalization papers without a photo; or (4) an original or certified copy of a court order containing the person’s name and date of birth and indicating an official change of name and/or gender.

A civil Action was filed challenging the constitutionality of the Texas law. The plaintiffs also alleged that SB 14 violates the Voting Rights Act.  After the conclusion of a trial, the district court held that SB 14 imposed an unconstitutional burden on the right to vote under the First and Fourteenth Amendments, had an discriminatory effect on Hispanics and African Americans under Section 2 of the Voting Rights Act, and was enacted with a discriminatory purpose in violation of the Fourteenth and Fifteenth Amendments and Section 2. The trial court also held that SB 14 created a poll tax that violated the Fourteenth and Twenty-Fourth Amendments.

Texas appealed that decision and a panel of the Court of Appeals for the Fifth Circuit affirmed in part, vacated in part, and remanded the case for further findings. Texas responded with a petition to rehear the case en banc. The Court of Appeals granted the request. After the hearing, the Fifth Circuit affirmed the trial court’s decision on the discriminatory effect issue as a violation of Section 2 of the Voting Rights Act. On the discriminatory intent question, the Fifth Circuit found that some of the trial court’s findings were flawed, but it also stated the record contained evidence that could support a finding of discriminatory intent. As a consequence, the Court remanded the discriminatory intent issue to the district court to reconsider its decision.

The plaintiffs also argued that SB 14 unconstitutionally burdened their right to vote in violation of the First and Fourteenth Amendments. The Fifth Circuit declined to decide this question relying on the principle that courts should not decide a constitutional question if there is some other ground on which to decide of the case.

To avoid any disruption of the upcoming election, the Fifth Circuit directed the district court to fashion interim redress for the discriminatory effect violation in the months leading up to the November 2016 general election.

Veasey v. Abbott is a major victory that gives civil rights advocates a crucial remedy in advance of the 2016 election. The new wave of voter ID laws harken back to the Reconstruction era when African Americans in the South were completely disenfranchised. Six of the 16 states that enacted voter ID laws since 2010 have a documented history of discriminating against minority voters. All but one of those states’ laws were put in place after the Supreme Court overturned a key provision of the Voting Rights Act that required them to seek approval from the Justice Department for any voting law changes.

All of the recent Voter ID laws were sponsored by Republicans and passed overwhelmingly by Republican dominated legislatures. A conservative U.S. circuit judge, Richard Posner, called the expressed concern about voter fraud “a mere fig leaf” and the laws instead “appear to be aimed at limiting voting by minorities, particularly blacks.” Posner also stated “there is only one motivation for imposing burdens on voting that are ostensibly designed to discourage voter-impersonation fraud…and that is to discourage voting by persons likely to vote against the party responsible for imposing the burdens.” This is clearly the case with voter ID laws. The Republican lawmakers’ motives are the same as those of the white supremacist legislators during the Reconstruction era--disenfranchising minority voters.

Anonymous Flyer Attacking Candidate Is Slammed by Judicial Diversity Group

Greg Land, Daily Report

July 14, 2016

 

An organization that works to increase racial diversity on the bench is crying foul after an anonymous flyer landed in mailboxes attacking former Fulton County Juvenile Court Chief Judge Belinda Edwards' handling of a case when she was on the bench, and asserting that Edwards was "fired" when the superior court judges declined to reappoint her at the end of 2012.

Edwards, who is African-American, served as chief judge from 2004 to 2012; she is running in the July 26 runoff against former Fulton Magistrate Sterling Eaves, who is white.

The flyer cited news reports concerning a case in which Edwards overruled an associate juvenile court judge and awarded custody of two children to their mother's family members after the Division of Family and Children Services filed a motion to terminate the mother's parental rights. The earlier order had awarded the children to the foster parents who had raised them since they were infants.

DFACS later filed to withdraw its termination motion because the mother had agreed to allow the family members, an aunt and uncle, to adopt the children—a move that was opposed in court by the office of the Fulton County child advocate.

Superior Court Judge Wendy Shoob was drawn into the case when the foster parents filed an adoption petition in that court. Shoob awarded the children to the foster parents, spurring a jurisdictional dispute that ended with the Georgia Court of Appeals ruling that matter had properly been before the juvenile court when Edwards ruled. By that time, Edwards had been replaced as chief judge and the mother had dropped her effort to have the children moved; they remained with the foster parents.

The flyer accused Edwards of "trying to take these foster children away from a loving home," and features a photo of the children and their adoptive parents.

A letter to the Daily Report from Advocacy Action took issue with the "scurrilous, inaccurate and grossly misleading" mailer.

"The truth is Judge Edwards was not reappointed because she refused to compromise in the exercise of her independent judgment to reunify a family and maintaining familial bonds in the best interests of the children" said the letter, signed by former Fulton Superior Court Judge Thelma Wyatt Moore, former Burke County Superior Court Judge Bettianne Hart, and attorneys Charles Johnson, Wayne Kendall and Suzanne Ockleberry.

"The flyer is a gross distortion and contains many inaccuracies and I think it is most telling that no one is taking responsibility for it," said Edwards, declaring it "most unfortunate that the distortions and negativity represented by the flyer have been interjected into the election process."

Eaves said she had heard about the flyer. When asked if she knew where it came from, she replied that she was "blessed that I've got a lot of supporters, and I don't know what everybody's doing."

The children's adoptive father, reached by phone, said he knew nothing about the flyer or its genesis, and asked that a copy be emailed to him, which it was. He did not respond to further requests for comment.

The return address on the flyer belongs to a printing shop, whose proprietor said he knew nothing about the mailer or the case mentioned. He said that he had done some printing work for Eaves' campaign during the general election, and noted that his clients frequently used his mailing address on materials.

Edwards' departure from the juvenile court came after a December 2012 vote by the superior court bench vote not to give her another four-year term. Shortly after that vote, Edwards fired the juvenile court administrator, spurring then-Superior Court Chief Judge Cynthia Wright to issue an order rescinding the termination and forbidding any "adverse actions" against any more juvenile court personnel.

At the time, Wright told The Atlanta Journal-Constitution that she and her fellow judges felt it was time to take the juvenile court "in another direction."