Almost a year ago today, North Carolina Gov. Pat McCrory (R) signed into law a comprehensive voter suppression bill incorporating numerous different tactics used to restrict voting in other states. Among other things, the law imposed a strict voter ID requirement, a common provision used to reduce turnout among minority, low-income and student voters. It cut a full week of early voting. And it will prohibit certain kinds of voter registration drives.
On Friday, Judge Thomas D. Schroeder, a George W. Bush appointee, held that this law could go into effect — at least for the 2014 elections. The plaintiffs in this case, which included the United States, various civil rights organizations and the League of Women Voters, had asked Schroeder for a “preliminary injunction,” a temporary order suspending various parts of the voter suppression law until his court holds a full trial in 2015. In Friday’s order, Schroeder denied this request.
Much of Schroeder’s order is defensible. As Schroeder notes early in his opinion, the fact that North Carolina’s law is bad policy does not necessarily make it illegal or unconstitutional. And some of the arguments raised against the North Carolina law are legitimately quite weak. Judge Schroeder is rather charitable, for example, when he describes a claim that a provision eliminating same-day voter registration violates the Twenty-Sixth Amendment’s requirement that citizens over the age of 18 be allowed to vote as a “novel claim.”
Similarly, the impact of Schroeder’s decision to allow the law to go into effect is mitigated by the fact that the law’s voter ID provision does not itself take effect until 2016. The law calls for a “soft rollout,” where, in the upcoming election, voters will be “notified that photo identification will be needed to vote beginning in 2016” and required to sign an acknowledgement that this requirement is coming if they indicate that they do not have ID. Given the fact that the voter ID requirement will not actually prevent anyone from voting until 2016, however, Schroeder’s conclusion that it will not irreparably harm the plaintiffs during the 2014 election is a fair conclusion.
The weakest section of Schroeder’s opinion, however, is his conclusion that the cuts to early voting may go into effect this November. Section 2 of the Voting Rights Act, a provision of the landmark voting rights law that the Roberts Court has not struck down, prohibits states from enacting voting practices that “result in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color,” and the link between cuts to early voting and reduced minority turnout is well-established. Indeed, after Florida enacted similar cuts to early voting for the 2012 election, one Republican consultant admitted that “the cutting out of the Sunday before Election Day [from early voting] was one of their targets only because that’s a big day when the black churches organize themselves.”
Schroeder does not deny this link between fewer early voting days and fewer minority votes. His opinion assumes, “without deciding, that Plaintiffs can show a likelihood of success on the merits” of their challenges to the early voting cuts. Yet the judge also concludes that the plaintiffs cannot demonstrate “irreparable harm during the November 2014 general election” if the new limits on early voting go into effect, something they are required to demonstrate in order to obtain a preliminary injunction. Though the plaintiffs did argue that “historically[,] black voters disproportionately used the first week of early voting” before the voter suppression law took those days away, Schroeder dismisses this argument, claiming that it is “speculative” to assume that black voters will not simply shift their voting patterns to “the first seven days of the new ten-day period.”
Ultimately, however, this final conclusion can be laid as much at the feet of the Roberts Court as it can be laid at Judge Schroeder’s. Under Section 2 of the Voting Rights Act, and especially at the preliminary injunction stage of this lawsuit, the plaintiffs had a heavy burden to carry before a judge would suspend the law. Schroeder’s opinion concludes that they did not carry this burden.
By contrast, under Section 5 of the Voting Rights Act, the provision that was neutered by the five conservative justices in 2013, any new voting law could not have gone into effect in much of North Carolina until it was “precleared” by the Justice Department or a federal court in the nation’s capital. Had the Voting Rights Act still been in full effect when North Carolina’s law was passed, it is much likelier that parts of it would not be in effect for 2014 — and also likelier that much of it would never go into effect at all.