JURIST Guest Columnist Nick Byrne, University of North Carolina School of Law Class of 2015, analyzes the repercussions both intended and otherwise that will arise from the recent North Carolina legislation requiring government-issued IDs at elections...
n the final hours of the North Carolina General Assembly's 2013 session, the Republican-controlled legislature passed House Bill 589
[PDF] (HB 589), an omnibus package of election law "reforms" aimed at further "securing the vote." A few weeks later HB 589 was signed into law by Republican Governor Pat McCrory, despite the Governor's initial admission that he "doesn't know enough"
about certain provisions of the legislation and in the face of growing opposition
from the public. The legislation's expected effect of diminishing the ability of North Carolina voters from casting their ballots seems incongruous with the legislation's preamble stating in part: "[a]n act to restore confidence in government." In effect, this legislative effort appears to be a not-so-veiled attack on voting which will make the registration process and actual act of casting a vote more onerous, particularly for the poor, minority, college-age youth and elderly voters.
Until recently, 40 of North Carolina's 100 counties were covered by Section 5 of the Voting Rights Act (VRA). Prior to the US Supreme Court ruling on Shelby County v. Holder in June, election law changes impacting any of these counties (and many others nationally) required preclearance review by the US Department of Justice. The Shelby County holding invalidated Section 4 (which set forth the formula for determining those jurisdictions subject to preclearance) and effectively voided Section 5 (the preclearance provision) of the VRA. It now appears that the Court's June decision prompted Republican members of the General Assembly to revisit previously filed legislation [PDF] intent on further restricting ballot access and scaling back current election laws knowing that the sometimes long and arduous road of preclearance would likely not need to be traveled.
Like many southern states, North Carolina's suffrage history is complicated and marred by a history of disenfranchisement aimed at African-Americans. However, since the passage of the VRA, presidential voting among African-Americans in North Carolina has increased dramatically after previously standing as one of the worst in the country. In a landmark 1986 case Thornburg v. Gingles, the US Supreme Court explicitly noted that North Carolina had discriminated against its black citizens with respect to voting for a period stretching from 1900-1970. The Court cited continued low levels of voter registration among African-Americans due, in large part, to a history of discrimination and low socio-economic status which directly affected African-American political participation. These depressed levels of participation among African-Americans continued noticeably up until recently [PDF]. Today, North Carolina is ranked 11th in voter turnout [PDF] based on the 2012 election. Past voting reform efforts such as same day registration and provisional balloting intended to expand, rather than limit, access to the polls are seen as contributing factors in improving this statistic. HB 589 turns back the clock on years of reform and efforts to expand the access to the ballot and facilitate electoral participation.
The original elections bill [PDF], filed in April, was aimed largely at requiring photo identification for voters. The legislature passed similar legislation in 2011 but could not override the veto of then-Governor Beverly Perdue, a Democrat. With the GOP now armed with a veto-proof Republican majority in both houses (the first time since 1896) and a newly-elected Republican governor, Republicans cited photo ID legislation as a key legislative priority. HB 589, ratified on July 25, 2013 and signed by the governor on August 12, 2013, was a nearly 60 page rewrite of state election law. The bill arrived on the Senate floor for consideration mere hours before the General Assembly adjourned for the year. Controversial provisions of the bill include: a new photo identification requirement for voting, a reduction in the early vote period, ending same-day voter registration and voter pre-registration for 16 and 17 year olds, repealing straight ticket voting, eliminating provisional voting for out-of-district voters, prohibiting local Boards of Elections from extending voting times when lines are long and repealing public financing of judicial races.
The new law now requires photo identification in order to vote and narrows the list of acceptable ID required for voting to include a driver license, a state-issued ID and a few additional forms such as a military or Veteran's ID. Utility bills, bank statements and property tax bills are no longer acceptable forms of ID. Most alarming is the disproportionate impact the new law's photo ID requirement is expected to have on African-American and young voters. Of the more than 6 million individuals registered to vote in North Carolina, 318,643, or 5 percent, have no photo identification in the form of a driver license the most common state-issued photo identification card available to residents according to a recent analysis [PDF] by the state Board of Elections. Among these voters without photo identification, 34 percent are African-Americans while African-Americans comprise only 23 percent of total registered voters. Given the extent to which African-Americans identify as Democrats, it is unsurprising that 55 percent of total voters without photo ID are Democrats. In 2012, the number of African-Americans who voted without photo identification was 49,261 which represents a slightly higher figure of 36 percent. The law will also prohibit college-aged voters, which made up 16 percent of North Carolina's total turnout in 2012, from presenting their college-issued IDs when voting. In 2012, exit polls indicated 67 percent of young voters in North Carolina cast ballots for President Obama.
Though these figures might appear negligible when considering the over 4.5 million voters who cast ballots in North Carolina in 2012, they are far from it. North Carolina's recent battleground status and its growing influence in presidential contests means that this seemingly marginal number of voters most of whom are minorities and youth who vote Democratic can easily decide future election outcomes. In the previous two elections, President Obama won by a mere 14,000 votes in 2008 and Mitt Romney won by 92,000 votes in 2012.
HB 589 also reduces by one week the number of "Early Vote" days, a period in which 56 percent of all voters participated in the 2012 election. More notably, 70 percent of African Americans who voted in 2012 used Early Voting [PDF]. In 2007, same day voter registration was introduced in North Carolina resulting in an eight percent increase in voter participation from 2004 to 2008 the highest increase in voter participation nationally. HB 589 eliminates same day registration entirely. The benefits of the Early Vote period and same day voter registration are obvious. Same day voter registration enables voters to register and cast their ballot simultaneously, which reduces confusion over registration deadlines and precinct locations. This opportunity is particularly useful for those who have inflexible work schedules and for young voters who might relocate within the state to enroll in college.
States with same day registration voting boast higher overall turnout rates [PDF]. Same day registration helps to counteract seemingly arbitrary voter registration cut off dates and enables voters to register and vote all at once, rather than not being able to vote on Election Day after learning that the voter registration deadline had already passed.
With a substantial increase in voter participation and stories of long lines at the polls, even with early vote on the books in 2012, the reduction in Early Vote will inevitably lead to longer lines and added stress to voters and poll workers alike. In turn, this added demand on polling sites might lead to cases of fraud and vote count errors.
HB 589 also repeals straight party voting. In a state with a considerably higher number of registered Democrats and in light of the fact that precincts with greater African-American voters use more straight-party voting, the legislature's intent to hinder the ability of African-Americans to vote for their candidates of choice seems clear.
Finally, for voters arriving at the polls without photo identification and whose identification and/or precinct is disputed, the new law no longer provides an on-site provisional balloting option for voters. Under the new law, provisional ballots will only be accepted at local Boards of Elections which are not always conveniently located and sometimes hard to access, particularly for voters lacking personal vehicles and/or public transportation options, and for elderly voters who might be burdened by having to travel elsewhere. Formerly, voters could cast a ballot allowing even those voters who appeared at the wrong precinct to have their votes counted in contests still applicable to the voter's current residence. The new requirement works to block voter participation.
Undoubtedly, the effects of the Shelby County decision are being felt immediately in states like North Carolina where decades of disenfranchisement among African-Americans were just beginning to turnaround as African-American participation at the polls was expanding.
North Carolina State Senator Josh Stein, a Democratic leader who represents the state capital of Raleigh, voiced his opposition [video] to HB 589 on the Senate floor during debate declaring: "The only good news about this bill is that when congress revisits Section 4, which the Supreme Court ordered them to do ... [the GOP-controlled legislature] is giving [Congress] a poster child [in North Carolina] for which states will be subject to Section 5 [preclearance] in the future."
With Congress unlikely to act anytime soon to rewrite Section 4 of the VRA, the current inactive status of Section 5 preclearance will remain the law indefinitely. Regardless of whether Congress acts, North Carolina's and other similar state election laws have not gone unnoticed by the Department of Justice. The Attorney General has reportedly begun preparing federal complaints using other provisions of the VRA to contest these state laws aimed at "unraveling" years of progress in expanding ballot access. Indeed, one thing remains certain: even in light of a weakened VRA, HB 589 likely faces a long road of legal challenges ahead both from the federal government and outside groups in the months and years leading up to the 2016 elections, when the full law is expected to go into effect.
Nick Byrne is a JD/MPA dual-degree student at the University of North Carolina at Chapel Hill. His professional experience includes political and policy work in executive branch and legislative branch positions in the state of North Carolina. In addition to election law, Nick's professional interests include intergovernmental relations, community development and public finance.
Suggested citation: Nick Byrne, North Carolina Restricts Voting Access in the Name of Reform, JURIST - Dateline, Aug. 27, 2013, http://jurist.org/dateline/2013/08/nick-byrne-voter-ID.php
This article was prepared for publication by Elizabeth Hand, an associate editor for JURIST's student commentary service. Please direct any questions or comments to her at firstname.lastname@example.org