Dissecting the Pennsylvania Supreme Court's Redistricting Order

Yesterday, the Supreme Court of Pennsylvania handed down a per curiam order regarding a recent redistricting lawsuit that worked its way up through the Pennsylvania Courts: League of Women Voters of PA v. Pennsylvania.

At issue, the congressional district boundaries drawn after the 2010 census. The ruling fell along roughly partisan lines, with 4 justices ruling its congressional map was unconstitutional with another justice concurring in part (the unconstitutionality) and dissenting in part (the remedy put forth by the majority). Meanwhile, the two remaining justices dissented to the order in its entirety (see below).

The crux of the order declared:

[This] Court finds as a matter of law that the Congressional Redistricting Act of 2011 clearly, plainly and palpably violates the Constitution of the Commonwealth of Pennsylvania, and, on that sole basis, we hereby strike it as unconstitutional. Accordingly, its further use in elections for Pennsylvania seats in the United States House of Representatives, commencing with the upcoming May 15, 2018 primary, is hereby enjoined. . . .

The Court's order continues by detailing how a new map will be redrawn in time for Pennsylvania's 2018 Primary, which is less than four months away. The order allows the Republican-majority Pennsylvania General Assembly to redraw the congressional districts within the Commonwealth, but they must submit their proposal by February 9, 2018, which must be approved by the Democratic Governor Tom Wolf--just 19 days. If the Governor and the Pennsylvania General Assembly fail to come to an agreement--which is possible, if not entirely likely--the Supreme Court of Pennsylvania will redraw the congressional districts for Pennsylvania.

The Court ended its order by issuing an exemption for Pennsylvania's 18th Congressional District, which is in the midst of a special congressional election, scheduled for March 13th. However, every other district is subject to be redrawn. The Court stated a full opinion is forthcoming.

Chief Justice Saylor offered a salient dissent:

Consistent with my previous vote disfavoring the assumption of extraordinary jurisdiction, I agree with the Commonwealth Court’s original position that it would have been appropriate to stay this matter pending anticipated guidance from the Supreme Court of the United States in Gill v. Whitford [citations omitted]. Indeed, the Supreme Court has stayed a series of recent federal court directives to state legislatures in cases lodging partisan gerrymandering challenges pending its review, most recently, as of last week [Rucho v. Common Cause] [citations omitted]. I hold the view that restraint is appropriate, particularly in light of the timing of the present challenge to a congressional redistricting plan that was enacted in 2011 and the proximity of the impending 2018 election cycle [citations omitted]. . . The crafting of congressional district boundaries is quintessentially a political endeavor assigned to state legislatures by the United States Constitution. See U.S. CONST. art. I, §4. . . .

Justice Mundy expanded on Chief Justice Saylor's dissent by stating:

I join Chief Justice Saylor’s dissenting statement in full. I write separately to express my concern with the vagueness of the Court’s order. Despite its pronouncement that the 2011 map clearly, plainly, and palpably violates the Pennsylvania Constitution, the Court fails to identify the specific provision it so violates. This vagueness by the Court is problematic because the parties raise several state constitutional claims, including the Speech Clause, the Free Association Clause, the Elections Clause, and the Equal Protection Clause, each of which has a different mode of analysis [citiations omitted].

The Court’s order fails to give essential guidance to the General Assembly and the Governor, or this Court on how to create a constitutional, non-gerrymandered map. I am also troubled by the order striking down the 2011 Congressional map on the eve of our midterm elections, as well as the remedy proposed by the Court. In my view, the implication that this Court may undertake the task of drawing a congressional map on its own raises a serious federal constitutional concern. See U.S. CONST. art. I, § 4, cl. 1 (stating, “[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof[]”) (emphasis added) [remaining citations omitted].

Both dissents highlight U.S. Consitution issues, which the Supreme Court of Pennsylvania's per curiam order attempted to carefully avoid. 

Meanwhile, Pennsylvania GOP leaders from the Pennsylvania General Assembly announced that they will seek a stay from the Supreme Court of the United States.  In a joint statement, GOP leaders declared: “It is clear that with this ruling the Court is attempting to bypass the Constitution and the legislative process and legislate themselves, directly from the bench.” GOP leaders hope the U.S. Supreme Court will intervene as they did in North Carolina.

We will keep everyone posted on this story and informed of likely developments over the next couple weeks.

Redistricting Litigation Update

The past few weeks have been very busy for redistricting litigation.  Here is the status of some of the current cases:

• The Supreme Court agreed to hear consolidated Voting Rights Act and racial gerrymandering challenges to the state legislative and congressional districts in Texas (Abbott v. Perez), setting aside questions of jurisdiction until after briefing on the merits.  The court declined to hear a partisan gerrymandering claim from Texas for lack of jurisdiction (Texas Democratic Party v. Abbott).

• A three-judge district court found the re-drawn North Carolina congressional districts to be an impermissible partisan gerrymander and, in a lengthy 191-page opinion, ordered the map re-drawn, again, by January 24 (Common Cause v. Rucho).  This is the first time a court invalidated a congressional map on partisan gerrymandering grounds.  North Carolina appealed to the Supreme Court for a stay, and the original three-judge panel has refused to delay its order.

• A three-judge court in Pennsylvania dismissed a partisan gerrymandering claim against Pennsylvania’s congressional districts (Agre v. Wolf). 

• The Supreme Court of Pennsylvania heard oral arguments today in a separate challenge to the Pennsylvania map under the state Constitution.  A Commonwealth Court judge who reviewed the evidence in the case found that the congressional district lines were not unconstitutionally gerrymandered, but Pennsylvania’s Supreme Court leans heavily Democratic.

The consolidated Texas cases now join two partisan gerrymandering claims already pending before the Supreme Court this term, Gill v. Whitford out of Wisconsin (argued in October) and Benisek v. Lamone out of Maryland (oral argument date not scheduled yet).  And there are also pending redistricting cases in Georgia, Michigan, and Virginia. 

With all of this pending litigation, the rules governing redistricting are far from settled.  The maps currently being litigated are ones drawn after the 2010 census, over 7 years old at this point.  And in some cases, such as North Carolina’s congressional districts, the map currently being litigated is one that was re-drawn after the last round of post-2010 litigation. 

As we look forward to the 2020 census and the next round of redistricting, Democrats are making redistricting strategy and litigation, as well as winning majorities in state legislatures, a priority, including attracting the focus of Barack Obama and Eric Holder.  Republicans are just beginning to counter the Democrats’ efforts.  But at this rate, legislatures might not even know what the governing rules are when it is time to draw the new maps in 2021, and even if the rules are set by 2021, Democrats have shown how willing they are to change the rules after the fact through litigation. 

Stay tuned to this blog and RNLA’s Twitter feed for updates on these cases.

NC Election Worker Indicted for Altering Voter Registrations

A former temporary election worker in North Carolina has been indicted for altering voter registration records:

The State Bureau of Elections said in a news release on Tuesday that says 41-year-old Joy Yvette Wilkerson of Henderson faces charges of unlawful voter registration and unlawful altering of voter registrations. Wilkerson was indicted by a Granville County grand jury on Tuesday. . . . 

In June 2016, county elections director Tonya Burnette found in a review that voter registration records were changed without authorization. Burnette told the elections board, which investigated the matter and sent a full report to the district attorney's office.

The former worker attempted to alter as many as 250 registrations to allow ineligible felons to vote:

Joy Yvette Wilkerson, 41, of Henderson is facing multiple counts of fraudulently altering voter registrations, which is a felony charge. 

According to a Granville County Sheriff’s Department report, the county’s Board of Elections discovered the fraudulent activity last June and contacted law enforcement. The report says Wilkerson accessed the county’s voter registration database and restored – or tried to restore – active voting status to 250 convicted felons who had been removed from voter rolls while they served their sentence. 

North Carolina law bans convicted felons from voting while serving an active sentence – in prison or on probation – but their rights are restored after their sentence is complete.

This story illustrates how important it is for states to properly vet and train election officials, even temporary ones, and have procedures in place to protect against tampering with voter registration records or ballots (as temporary election workers did in Florida last year) and how susceptible the election system is to manipulation by a person with bad intent.  But the diligence of the North Carolina officials in catching and investigating this fraud should be commended.

82 Non-Citizen Voters and 385 Non-Citizens Registered to Vote Found in Ohio

To further prove the point that elections have consequences and we are in a new world of election law and litigation, compare two news stories from this week.  First, the Trump administration has dropped the Department of Justice's opposition to Texas' voter ID law on the basis that it is intentionally racially discriminatory, to give the state time to amend the law.  Second, North Carolina's new Democrat governor and attorney general are attempting to withdraw (potentially unethically) the pending petition for certiorari with the Supreme Court regarding the Fourth Circuit's decision last summer striking down North Carolina's voter ID law. 

Opponents of voter ID laws claim that they are not needed because vote fraud doesn't happen, but when voting and voter registration records are investigated, both illegal voting and the potential for it are uncovered.  An investigation by Ohio Secretary of State Jon Husted has uncovered hundreds of non-citizens registered to vote in the state, 82 of whom have voted in at least one election in the last year:

“In light of the national discussion about illegal voting it is important to inform our discussions with facts. The fact is voter fraud happens, it is rare and when it happens, we hold people accountable,” Secretary Husted said. . . . 

“I have a responsibility to preserve the integrity of Ohio’s elections system,” Secretary Husted said. “When you consider that in Ohio we have had 112 elections decided by one vote or tied in the last three years, every case of illegal voting must be taken seriously and elections officials must have every resource available to them to respond accordingly.” 

Husted added that none of the cases where a non-citizen cast a ballot occurred in jurisdictions where an election was decided by one vote or tied. 

It’s possible for a non-citizen to register to vote in Ohio if they lie about their status on the voter registration form.

And there may be more non-citizen registered voters and actual voters than what this investigation found:

Husted’s review is able to identify people who have registered to vote as citizens but obtained a driver’s license as a non-citizen. . . . And Husted admits there are likely other non-citizens registered to vote in Ohio but are not in the BMV’s system. 

That’s why he has appealed to Washington for access to a federal Homeland Security database… 

“If we had access to that information we could prevent this in advance and we could find out what the probably bigger number is of people who are on the voter rolls or who have voted and shouldn’t be.”

We applaud Secretary Husted for taking the problem of non-citizen registration and voting seriously and endeavoring to keep Ohio's voter registration records clean.  And we look forward to the Trump administration cooperating with states' efforts to ensure the integrity of their elections, instead of fighting them as the federal government has for the past eight years.

Did Duke Students Unethically Trip Up the North Carolina Governor?

Allegations of vote fraud have run rampant in the 2016 gubernatorial election in North Carolina. One of the strongest may be that the lack of voter ID may have let out-of-state students vote in North Carolina.

Since 2008 Democrats have pursued a tactic of encouraging out-of-state students to register at their home or schools depending on which voting location was “more targeted.”  Here is a screen grab from the 2008 Obama effort published in the Hill.  As we explained previously:

The program did not tell students about legal definitions of residency in the various states or help them legally register in the state they resided, rather the program picked the most targeted state for them to vote.  The program worked like this for identical students who only had their states and colleges reversed.  Student A lived in Columbus, Ohio but was going to school at Harvard in Cambridge, Massachusetts.  The program told A to vote in the target state of Ohio over the blue state of Massachusetts.  Student B was reversed; B was going to school at Ohio State in Columbus, Ohio but lived in Cambridge, Massachusetts. The program told B to vote in Ohio.

In 2016 arguably no state had more potential close races than North Carolina.  Not only was the Presidency a highly targeted race, but so were the Senate and Governor’s races.  And vote fraud, more specifically illegal student voting, could have swung the Governor’s race.  As Republican Governor Pat McCrory stated on vote fraud:

McCrory said his “main suspicions” involved Durham County, where about 90,000 votes weren’t added to the statewide count until nearly midnight on election night. McCrory’s campaign called for a recount there that didn’t didn’t change the outcome. McCrory conceded the election to Cooper on Dec. 5 as the recount wrapped up.

“I personally don’t think it was about the machines” used to count votes in Durham, McCrory told the cable TV news station. “I think where the real impact was the Supreme Court decision not allowing us to have voter ID, which allowed a lot of college students who live out of state to vote.”

The Durham area has five colleges.  At downtown Durham’s Duke University alone only 12% of incoming freshmen (and presumably first-time eligible voters) were from North Carolina.  How many out-of-state students voted in North Carolina unethically, if not fraudulently, for Democrats?

To be clear, NO ONE is trying to stop students from voting and further we do not know anyone who is opposed to the young getting more involved in the political process.

However, should anyone be able to vote where they do not reside and have no intention of residing?  Everyone agrees we should have excused absentee voting, so people who are away from home on Election Day can vote in their home states and have their votes counted.  Would anyone be okay with letting those same people vote in the states they happen to be in on Election Day, even if they have no intent of ever residing there?  Forget about the “big ticket” items such as President, does anyone believe that local initiatives, school board races, city council elections, etc. should be determined by people who have no interest or intent to reside at the location?

Yet that is what can happen with student voting.  A student is going away from home for college.  The student may be living and intending to reside in that location or they may be going there to get the best education they can and intend to return home.  They could even be commuting to school. You will hear many students talk about “going home” for the summer or holidays, an obvious indicator of their mental state regarding where they perceive themselves as residing. That student should be treated like everyone else and vote where they intend to reside.

Voter ID is a great way to stop this practice or even the appearance of this practice.  There seems to be a very good chance that the newly “elected” Democrat Governor owes his election not to the people of North Carolina but the out-of-state college students like those that go to Duke.   Looks like Duke’s unethical tripping of opponents may extend beyond the basketball court.

Status of Voter ID Laws after 2016

2016 was a remarkable year in many ways, not least of which was the number of court decisions on voter ID laws.  What is the state of the law on the validity of voter ID requirements after 2016?:

Rule One: Voter ID, by itself, is presumptively valid. In the immediate post-HAVA era, new photo ID laws were seen as a threat and drew litigation challenges accordingly. Over time, however, courts – including the U.S. Supreme Court in the 2008 Crawford case – came to accept voter ID and uphold it against what lawyers call “facial” challenges; i.e., challenges to its mere existence. More specifically, courts are accepting states’ proffered justifications of fraud prevention and are finding that ID laws, by themselves, are not an undue burden on voters. In 2017 and beyond, therefore, any plaintiff challenging a new or existing voter ID law will have to do more than simply allege discrimination and/or limitation of voting rights to prevail. 

Rule Two: legislative intent behind voter ID matters. That said, general judicial acceptance of voter ID laws erodes quickly if there is evidence of actual discriminatory intent behind their enactment. In 2016, federal appeals courts blocked election laws in Texas and North Carolina because of evidence that legislators in both states had consulted, and may have relied upon, data suggesting those laws would disproportionately affect protected minorities under the Voting Rights Act. Going forward, any legislature seeking to enact or expand voter ID laws will be closely scrutinized to ensure that similar discriminatory intent is not motivating those laws. Note, however, that plaintiffs challenging such laws may no longer be able to count on support from the U.S. Department of Justice under the new Administration. 

Rule Three: whether and how voters without ID can get it is crucial. While facial challenges to voter ID laws are likely to fail, recent experience suggests that an “as-applied” challenge focused on the implementation of these laws has more likelihood of success. State and federal courts have been very clear that voter ID requirements begin to lose their presumption of validity when evidence suggests that voters without ID can’t actually get it. These fights can be intensely detailed; in Wisconsin, courts temporarily halted implementation of ID laws because of deficiencies at the state DMV in training staff to assist voters with obtaining ID, and in Texas the instructions to poll workers about what kind of ID could be required were subjected to direct oversight by the court. In this environment, the voter ID fight isn’t about sweeping legal issues but rather the nitty-gritty of implementation. 

What does this mean for voter ID going forward? I think it’s pretty straightforward: legislatures are likely free to enact such laws if they have the votes, but there must be no evidence of discriminatory intent and implementation matters; in other words, it isn’t enough to simply say voters will be allowed to get free IDs – there has to be an actual plan. In this environment, theoretical legal arguments about the constitutionality of ID laws are most powerful during legislative debate but are unlikely to succeed in court. The real fight is over intent and what happens after enactment. Proponents and opponents alike would be well-advised to put less emphasis on legal research and more on data gathering.

We are hopeful that some of the bad decisions on voter ID will be overturned in 2017.  Here are some of the notable voter ID stories from 2016:

• Fourth Circuit upheld Virginia's voter ID law
• Missouri voters passed a constitutional amendment allowing the state to require photo voter ID with 63% voting in favor
• Fourth Circuit struck down North Carolina's voter ID law; appeal to the Supreme Court is likely
• Fifth Circuit required Texas to modify its voter ID law; petition for writ of certiorari pending at the Supreme Court
• Multiple challenges to Wisconsin's voter ID law are ongoing
• A study exposed the inflated, faulty statistics repeatedly cited by voter ID opponents

Democrats Intimidate Voters with Baseball Bats, Republicans with Voter Guides

Every cycle the Democrats and their allies on the left make unfounded allegations of intimidation against Republicans, yet they remain silent on actual intimidation. 

The strongest example yet of the hypocrisy is in North Carolina where Democrats were mad about a Republican voter guide being passed out.  The response to a perfectly legal voter guide by one North Carolina Democrat official is to call it a (bold emphasis added):

“cheap psychology is being used and some voters don’t know any better and think the culprit is being sincere. We need enough volunteers at both sites and also on Election day to NIP THIS IN THE BUD even if a baseball bat is necessary.”

This is clear intimidation.  Under pressure from the North Carolina GOP, the Democrat Party official retracted this.  To their credit, the Democrat Party of North Carolina condemned it as well. 

However, while RNLA condemned reports of alleged anonymous supporters of Mr. Trump discussing intimidation, no national figure or group on the left has even commented on the actual calls for intimidation by a North Carolina Democrat official. 

Why?  It certainly leads credibility to those who say:

Democrats have little concrete to show for a week of legal battles charging Donald Trump and his allies with a sweeping voter intimidation campaign, but the effort may pay off politically for Hillary Clinton by energizing her backers to get to the polls to stop a real or imagined GOP onslaught.  

No one should forget the actual intimidation that has taken place in North Carolina with the firebombing of a North Carolina GOP headquarters and political vandalism.  This make the comments even more troubling.      

Fourth Circuit Turned Voting Rights into Political Weapon

In its decision on North Carolina's voter ID law last month, the Fourth Circuit acted like a trial court in determining new findings of fact, according to election law expert Christian Adams:

Legal analysts have given the opinion by the 4th U.S. Circuit Court of Appeals overturning North Carolina’s election reform law, including its voter ID requirement, mixed reviews. 

Both J. Christian Adams, president of the Public Interest Legal Foundation in Washington, and Rick Hasen, chancellor’s professor of law and political science at the University of California, Irvine School of Law, noted that it was highly unusual for the three-judge appeals panel to overturn a district court judge’s factual findings. 

While Hasen saw merit in the decision, Adams didn’t. 

“The 4th Circuit did what very few federal appeals courts do; they pretended they were a trial court,” Adams said. “One of the things they teach you in law school is trial courts deal with the facts and appeals courts deal with the law.” Hasen acknowledged that trial courts generally grant deference to the facts stated by a trial court.

Adams concluded that the Fourth Circuit found that the voter ID law and other election reforms were enacted with racially discriminatory intent because it was seeking any way to overturn the law for political reasons:

State elections officials and Republican leaders, however, have noted that in the 2014 election — the first federal election after the new voting provisions were enacted — turnout among black voters was higher than it was in 2010, the last nonpresidential election before the law passed. (The voter ID requirement was delayed until the 2016 primary and general elections.) 

Adams said the court “apparently wanted to set the law aside no matter what,” adding that the appeals court’s ruling turns voting rights into a political weapon. 

“Anything that the legislature ever passes and might affect blacks or Democrats ever so slightly more than whites or Republicans, these judges say it’s a voting rights violation,” Adams said. “That’s bad for the Voting Rights Act and for politics.”

On Monday, North Carolina filed a petition for emergency relief from the Supreme Court that would allow the voter ID law and other election reforms overturned by the Fourth Circuit to remain in effect for the November election.  We hope that the Supreme Court will stay the Fourth Circuit's decision until a less politically motivated court can evaluate the law.

The Rule of Law Unjustly Manipulated: 4th Circuit Strikes Down NC Voter ID

In a decision that has many at a loss, today the Fourth Circuit Court of Appeals held that North Carolina election integrity laws were enacted with a racially discriminatory intent. The Public Interest Legal Foundation released a statement with regard to the decision.

“The trial court conducted the trial, heard the evidence, and ruled that the law was valid. The Fourth Circuit Court of Appeals behaved like a trial court and decided that the law had a discriminatory intent,” said J. Christian Adams, President and General Counsel of the Public Interest Legal Foundation. “Normally, appeals courts remand to trial courts to review the evidence with the guidance of the appeals court. The Fourth Circuit undertook the job of a trial court and the integrity of the upcoming election is worse off because of it.”

Among the unusual rulings was the court holding that Section 5 objection letters by the Obama Justice Department about other election procedures constituted relevant evidence of racially discriminatory intent in the voter ID law. Objections are based on a failure to affirmatively disprove discriminatory intent, not because discriminatory intent is found.

“This case was brought to extract partisan advantage using the Voting Rights Act and sadly the plaintiffs were successful in turning that important civil rights law into a political weapon,” said Adams.

The concerns raised by the decision are numerous, as the Fourth Circuit acted like a trial court determining evidence and found that the voter ID law and other important election integrity reforms were not enacted for a legitimate purpose.

The three judges assigned to the case — all Democratic appointees — were unanimous that the Republican-controlled North Carolina legislature violated the U.S. Constitution and the Voting Rights Act three years ago by enacting the measure requiring voters to show certain types of photo ID at the polls.

"The record makes clear that the historical origin of the challenged provisions in this statute is not the innocuous back-and-forth of routine partisan struggle that the State suggests and that the district court accepted," Judge Diana Motz wrote on behalf of Judges James Wynn and Henry Floyd. "Rather, the General Assembly enacted them in the immediate aftermath of unprecedented African American voter participation in a state with a troubled racial history and racially polarized voting. The district court clearly erred in ignoring or dismissing this historical background evidence, all of which supports a finding of discriminatory intent."

There is little that remains to be stated that cannot be implied from the decision itself. Unorthodox left-leaning decisions not based on the rule of law are just a prelude to what another four years of Democratic “leadership” will undoubtedly impose on this country and the judiciary itself.

Fourth Circuit Hears Oral Arguments on North Carolina Voter ID Law and Other Election Integrity Reforms

Yesterday, the Fourth Circuit heard arguments on North Carolina's voter ID law and other election integrity reforms:

The hearing was the latest legal step in a long saga over House Bill 589, passed nearly three years ago by state lawmakers. It was in June 2013 when the North Carolina General Assembly passed a measure that mandated photo identification, reduced early voting, and eliminated same day registration, among other provisions. . . . 

The defense maintains plaintiffs have failed to use statistical evidence to prove discrimination. A ruling from the panel could uphold or undo the controversial law.  

"We had the benefit of the 2014 election and the plaintiffs have said well you can’t just rely on one election – well it’s the only election we have to rely upon," defense attorney Tom Farr said. . . . 

The general election is 20 weeks from these proceedings, and the expectation is that the three judge panel will rule relatively quickly, so that the state Board of Elections will have enough time to prepare.

The District Court had upheld the voter ID law and the other reforms in a strong, carefully considered opinion in April.  According to some reports, the Fourth Circuit panel unfortunately was skeptical of the purpose of the reforms:

Members of a three-judge federal appeals court panel are expressing skepticism that North Carolina's Republican-led legislature's changes to voting laws do not discriminate against minorities.

A recording of the oral argument in NAACP v. McCrory is available here [auto-play recording].  

Federal Court Upholds NC Reforms to Ensure Election Integrity

As we discussed previously, the U.S. District Court for the Middle District of North Carolina upheld North Carolina's voter ID law in a long opinion that thoroughly considered all of the evidence.  The decision also upheld a number of procedural election changes that North Carolina made to ensure the integrity of its elections.

The court found that each procedural reform was made for a proper purpose and that turnout increased after the reforms were implemented, contrary to the challengers' position that the reforms were an attempt to suppress voters:

The reforms in question included . . . reducing the number of early voting days from 17 to 10 but extending voting hours; eliminating same-day registration and preregistration by 16- and 17-year-olds; and requiring voters to vote in their assigned precincts. . . . 

The claims made by DOJ and the Obama administration’s political allies boiled down to this: all of the reforms were discriminatory, either intentionally or in effect, and would suppress the votes of African-Americans, Hispanics and the young. The judge refused to issue an injunction when the lawsuits were first filed, which left most of the changes in effect for the 2014 election. . . . This wound up severely damaging the plaintiffs’ case, because turnout increased in both the primary and general elections of 2014 — the exact opposite of what the plaintiffs and their experts claimed would happen. . . . As the judge pointed out: “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.” . . . 

The court also made another important point. The judge said that “the fact that voting can almost always be made easier does not render a State’s failure to do so, or a State’s repeal of a convenience or ‘failsafe,’ unlawful or unconstitutional per se.” With “every relaxation of the rules there is often an attendant trade-off or effect on verification and election integrity. The State demonstrated as much here.”  

The plaintiffs, including the Justice Department, opposed North Carolina’s election system as changed by the 2013 reform law because “they preferred one that they say was even more convenient” than the very liberal system the state already has. Different degrees of “convenience” do not constitute a violation of the law or the Constitution. And the plaintiffs’ claims that North Carolina’s action was the result of “vestiges of historical official discrimination is rebutted by the facts.”

The court's opinion was also a victory for federalism and the ability of states to manage their elections, as provided by the Constitution:

The challengers failed on every front. According to the Court, the challengers inferred racial intent where there was no evidence of such. In fact, North Carolina acted rationally and responsibly in enacting the election changes. Specifically, the legislature relied upon extensive evidence . . . . 

It is important to realize that the court preserved the balance between state and federal power. States have the power under the Constitution to run their own elections. Some powerful interests want that to change. But the Founders intended that such policy decisions be left up to the branch of government closest to the people.

The Founders wisely gave states the power to manage their elections, as the states are more responsive to the needs and desires of their people than the federal government.  States devote a tremendous amount of resources to election administration and make hard decisions about how to ensure the integrity of elections while providing eligible voters the opportunity to vote.  This decision is an important step in protecting states from constant litigation and charges of racism from the left when they make prudent decisions about election administration.

The decision has been appealed to the Fourth Circuit, which has granted expedited review of the case.

Federal Court Upholds NC Voter ID Law

Yesterday, Judge Thomas Schroeder of the U.S. District Court for the Middle District of North Carolina upheld North Carolina's voter ID law in a 479-page opinion that carefully considered and analyzed all the evidence presented by both sides.  The court also dismissed challenges to other election reforms - more about those in a later post.

The Court held (pages 475-76):

Finally, North Carolina’s voter-ID requirement, now with a reasonable impediment exception, serves legitimate State interests recognized by the Supreme Court in Crawford without imposing a material burden on any group of voters. Plaintiffs’ contention that North Carolina’s requirement is one of the strictest in the country ignores the reasonable impediment exception. If North Carolina is an outlier, it is because it is one of only two States in the Nation to accommodate voters who wish to vote in person but for whatever reason face an impediment to acquiring qualifying ID. The court’s conclusion is fully consistent with the same finding of the three-judge court that approved a virtually identical photo-ID law with reasonable impediment in South Carolina. . . . 

In short, North Carolina has provided legitimate State interests for its voter-ID requirement and electoral system . . . . Plaintiffs oppose this system because they preferred one that they say was even more convenient – which they used disproportionately during certain elections – and point to some fraction of voters who did not vote or register. Plaintiffs’ contention that such voters did not do so because of vestiges of historical official discrimination is rebutted by the facts. There is strong evidence that some other reason is at play for the failure of these persons to register and/or vote. The unprecedented gains by African Americans in registration and turnout, both during and even in 2014 after SL 2013-381, bolster this conclusion. While the consideration is clearly local and practical in nature, based on North Carolina’s unique facts, it would no doubt bear relevance if North Carolina were seeking to return to an electoral system that was not in the mainstream of other States. It is not.

The court considered a vast amount of evidence to reach its conclusions:

In reaching the decision released on Monday, Schroeder conducted a two-part trial that spanned more than 21 days in July and this past January. He considered the testimony of 21 expert witnesses and 112 other witnesses, and more than 25,000 pages that are part of the record.

North Carolina Governor Pat McCrory recognized the wisdom of the decision:

This ruling further affirms that requiring a photo ID in order to vote is not only common-sense, it's constitutional . . . . Common practices like boarding an airplane and purchasing Sudafed require photo ID and thankfully a federal court has ensured our citizens will have the same protection for their basic right to vote.

The court was right to recognize that the state of North Carolina has a legitimate interest in protecting the integrity of its elections.  The decision has already been appealed to the 4th Circuit, but Judge Schroeder's thoughtful, careful findings of fact will be given deference by any reviewing appellate court and should hold up to scrutiny.

Despite What the Left Would Lead You to Believe, the Boogeyman Does Not Exist

The North Carolina voter ID law is in the process of being challenged in court by leftist opponents from all over the state and beyond. They continue to contest voter ID laws with everything they can due to their stated belief that it will disenfranchise voters or more cynically, as a strategy to turn out their base. 

Let’s get something really clear; the argument that voters are turned away from the polls by lack of an ID is a flat out falsehood. Look back to 2014, when the NY Times noted that the arguments fall flat on their face. Yet, they continue their attack, dreaming up exaggerated numbers of those "potentially" affected, fear mongering, and encouraging racial divide and for what?

For now their focus is on NC as they continue to waste taxpayer money and judicial resources, all the while claiming that laws drafted and passed by state legislators to ensure the integrity of our election process are disenfranchising voters. As Opposing Views points out, here comes the boogeyman.

To hear those who oppose IDs tell it, voter ID laws are designed by malicious Republicans in back rooms, cackling as they take entire Democrat-leaning neighborhoods and cities out of play. According to the same people, poor and minority voters will be turned away by the hundreds or thousands as they try to vote, resulting in mass disenfranchisement.

That's a fantasy, or more appropriately, a boogeyman. Out of 36 states that have passed some form of voter ID law, there have been no instances of people turned away from the voting booth en masse. Sixteen of those states request IDs, but don't require them if voters can prove their identity by other means. Another 17 states don't require any form of identification.

In North Carolina, where officials are readying for the first year ballots are cast under a new voter-protection law, people without IDs can still vote if they can prove their identity by other means. They don't need driver's licenses to prove their identity -- they can vote with state-issued ID cards, military IDs or passports. Most states offer free help to voters who don't have photo IDs. All they have to do is reach out ahead of time.

Stopping vote fraud ensures a fair election system that both sides of the aisle should be vigorously pursuing. Citizens are "carded" for various reasons every single day in this country. The list is expansive and continuing to grow: the bank, the grocery store, flights, driving, and even work. 

Requiring voter ID is something so basic that it should have been put in place a long time ago.

North Carolina and the Myth of Voter Suppression

Judicial Watch’s Robert Popper has an excellent piece in today’s Wall Street Journal about the ongoing federal litigation challenging several changes to North Carolina’s election laws and how statistics from November’s election dispel the myth the changes suppressed the vote there. As we have seen in other states that have adopted voter integrity measures such as photo ID laws, North Carolina’s changes are proving to have zero impact on minority turnout, despite the hysterical claims made by the NAACP and Eric Holder’s Department of Justice (DOJ). In fact, African-American voter registration and turnout increased for the 2014 election.

Popper explains the various legislative changes at issue. For example, North Carolina moved to eliminate same day voter registration, a contentious policy that increases a state’s risk of Election Day fraud. North Carolina also tweaked its state law to require voters to vote in the precinct in which they are registered, hardly a novel or extreme measure. Another change challenged in the lawsuit is the reduction of days available for early voting from 17 to 10, although counties were required to offer the same number of early voting hours as they did before the changes kicked in. North Carolina also adopted a photo voter ID law in the legislative package although it does not take effect until 2016.

North Carolina was sued in two separate suits in August, 2013 by the NAACP, Common Cause, League of Women Voters and others. Later, a third suit was brought by Holder’s DOJ. (Click here for the pleadings and for other information on the case.) Among the extraordinary claims by DOJ as chronicled by Popper:

One expert in the Justice Department lawsuit claimed that more than 200,000 black voters, along with 700,000 white voters, would be “burdened” in an off-year election. Another expert concluded that particular provisions “will lower turnout overall” and “will have a disparate impact on African-American voters.”

Reality?

Those predictions were not borne out. The 2014 elections were the first test of the impact of North Carolina’s new laws, including a “soft rollout” of its voter-ID requirement—under which poll workers asked voters if they had ID and if not, to acknowledge the new requirement in writing. Board of Elections data showed that the percentage of age-eligible, non-Hispanic black residents who turned out to vote in North Carolina rose to 41.1% in November 2014 from 38.5% in November 2010.

The percentage of black registrants voting increased to 42.2% from 40.3% in the same period, and the black share of votes cast increased to 21.4% from 20.1%. The absolute number of black voters increased 16%, to 628,004 from 539,646.

As Popper notes, this is just “the latest example of allegedly “suppressive” laws that failed to suppress votes.” Plaintiffs and left-wing groups like the Brennan Center continue to cry wolf over these laws but the results are clear: common-sense voter integrity measures simply do not suppress the vote. As the Brennan Center and others continue to lose credibility based on their outrageous claims, they are only getting more desperate and it is showing. While some activist and sympathetic judges may continue to (at least temporarily) stop these laws from being implemented, the truth is finally emerging. Even Rick Hasen and other liberals have begun to question the Chicken Little “Sky is Falling” narrative being spun by plaintiffs in these suits and groups like the Brennan Center.