A little over a month ago, a federal appeals court struck down North Carolina’s omnibus voter suppression law — a law that is widely viewed as the most aggressive law of its kind in the nation — explaining that the law was intentionally designed to maximize its impact on African-American voters. On Wednesday, the Supreme Court announced that it would not disturb this decision, admittedly over the objections of its conservative members.
Nevertheless, much of the state still hopes to implement parts of the law’s racially discriminatory agenda. This could end very badly for the state’s efforts to suppress the vote, however, as North Carolina’s continuing refusal to respect the constitutional ban on racial voter discrimination could lead a court to impose a rarely invoked and quite significant sanction on the state.
North Carolina’s most recent shenanigans concern its effort to cut early voting days in a way that make it less likely that black voters will show up at the polls. According to the federal appeals court that struck down the law, the North Carolina legislature examined data which showed that “African Americans disproportionately used the first seven days of early voting,” and then modified the state’s voter suppression law “to eliminate the first week of early voting.”
Not long after the appeals court handed down its decision, North Carolina Republican Party Executive Director Dallas Woodhouse sent a memo to Republican county voting officials urging them to make only very minor changes to early voting practices in order to minimize the court decision’s impact.
Sunday voting, for example, is particularly popular among African-American voters because many black churches host “souls to the polls” events where churchgoers go to the polls together after Sunday services. Woodhouse urged Republican voting officials not to implement early voting on the Sunday impacted by the court decision, telling them that “six days of voting in one week is enough. Period.”
Similarly, Woodhouse told county officials not to open early voting sites on college campuses, which are often havens for Democratic voters, writing that “no group of people are entitled to their own early voting site, including college students.”
Many county officials took Woodhouse’s advice — and then some. As Alice Ollstein reported,
Mecklenburg County voted last week to offer 238 fewer hours of early voting than they did in 2012. New Hanover County voted to eliminate Sunday voting, even though they provided it during the primary election in March. Cumberland County is seeking to get rid of both Sunday voting and a voting site on the campus of Fayetteville State University, a historically black school.
Similarly, as Tierney Sneed reports, Republican officials in Lenior County voted to cut “early voting hours by three-quarters compared to the 2012 elections, and limit[] early voting to just one voting site for the entire 403-square-mile county.” Two county election boards did not even take a vote on implementing new early voting procedures to comply with the court’s order, a non-decision that will cause those counties to “default to early voting during only weekday business houses along with one Saturday morning, and offered solely at the county elections office.” These changes still need to be reviewed by the State Board of Elections, but that board is dominated by Republicans.
In total, about a third of the state’s 100 counties passed early voting plans over the objection of the county board’s Democratic member (each board has three members, two of whom are Republicans).
Now, here’s where things could get interesting. Although the appeals court’s decision was largely a victory for voting rights, the court did stay its hand on one very important question. Prior to 2013, the fully operational Voting Rights Act required many states or parts of states to “preclear” any new voting practices with federal officials in Washington, D.C. before those laws could take effect. Thus, laws that engage in racial voting discrimination, such as the North Carolina law, would be halted before they could do any harm to voters.
On a party-line vote, the Supreme Court effectively gutted this provision of the Voting Rights Act in Shelby County v. Holder, yet Shelby County did not disturb another provision of the Act, Section 3, which permits new jurisdictions to be subjected to preclearance if a court determines that “violations of the fourteenth or fifteenth amendment justifying equitable relief have occurred.” If a state engages in intentionally racial discrimination, then it can potentially be placed under federal supervision once again.
The United States Court of Appeals for the Fourth Circuit, which struck down North Carolina’s law, elected not to invoke this remedy — claiming that “such remedies ‘[are] rarely used’ and are not necessary here in light of our injunction.” And yet, less than a month after the court declared that preclearance is “not necessary here in light of our injunction,” much of the state has actively tried to thwart that injunction.
Courts do not often like to be toyed with in this way, and the county boards that offer only token compliance with the court’s early voting order have little incentive to comply with future court orders unless they think that there may be consequences for their actions.
In playing games with the Fourth Circuit’s original order, in other words, the state — or, at least, the counties that have played these games — have opened themselves up to much more stringent restrictions on their ability to engage in voter suppression in the future. Now, it is up to the court to implement these restrictions.