Today, the DOJ will sue North Carolina under sections 2 and 3 of the Voting Rights Act in an attempt to invalidate substantial portions of North Carolina's reforms to its voting laws. The North Carolina law requires photo IDs to vote (student IDs are not sufficient), limits early voting, ends same-day registration and voting, and prohibits counting provisional ballots when a voter appears at the wrong polling place. The DOJ contends that the effect of the changes is to dilute minority voting and thus is a violation of section 2 of the VRA. But the DOJ also asserts that the NC law is intentionally discriminatory and thus warrants imposition of section 5 preclearance under section 3 of the VRA. This is the second such DOJ suit; earlier this year the DOJ sued Texas on similar theories.
The section 2 claim hinges on whether the empirical evidence is sufficiently strong to prove that the effect of the change materially impedes minority voter participation. The evidence is contestable. Democracy North Carolina, an advocacy group, claims that 23% of NC registered voters are African-American, but in 2012 were 29% of early voters, 30% of voters appearing at the wrong polling place, 34% of registered voters without qualified photo IDs, and 41% of those using same-day refistration and voting. But these statistics do not prove that the proportion of early voters who are African-American will decline, nor do they establish that African-American voters will continue to represent a disproportionate share of voters who come to the wrong polling place. The share of minorities who used same-day registration and voting may be ephemeral, as once registation and voting is accomplished, the voter stays on the rolls and need not resort to same-day registration again. Such will be the arguments over whether section 2 has been violated.
Section 3 poses a much tougher challenge for the DOJ. The NC law is race-neutral and, though I do not know, I would be surprised if racist motivations were openly voiced in the NC legislature. In order to be constitutionally valid, section 3 must be congruent with an identified violation of the 15th Amendment and proportional to the scope of that violation. While section 3 is congruent with the 15th Amendment's ban of racial discrimination in voting, it is quite likely disproportionate. Absent proof of the kind of systematic, sub rosa discrimination that convinced the Court in South Carolina v. Katzenbach to uphold pre-clearance, a section 2 suit is adequate to address the alleged constitutional injury. At least that will be the argument in each of the NC and Texas suits, and it may well succeed.
News articles are here , here, here, and here.
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