In 2013, North Carolina passed a law requiring voters to show a government-issued photo ID, ending same-day registration and shortening the length of early voting from 17 to ten days. The Left rent its garments — Hillary Clinton called it an “assault on voting rights” — and foretold mass disenfranchisement. It never happened. In 2010, before North Carolina’s law, 40.3 percent of blacks in North Carolina voted in the year’s midterms; in 2014, with the law in effect, it was 42.2 percent. Nonetheless, last week the Fourth Circuit — perhaps inspired by recent decisions against similar laws in Texas and Wisconsin — swatted down North Carolina’s law.
The overreaching decision in NAACP v. McCrory is a particularly zealous display of judicial deception. The Fourth Circuit simply ignored the relevant data in favor of creating the impression of a right-wing conspiracy. Noting the increase in black turnout that preceded passage of the law, the Court wrote that by 2013, “African Americans were poised to act as a major electoral force.” But in the telling of the Court, the Republican majority that came to power in 2012 — which, the Court makes sure to note, “rarely enjoyed African American support” — took quick and decisive action to make sure that never happened. This is pure fantasy, and conveniently ignores the fact that Republicans had been trying to pass a voter-ID bill since 2003. Furthermore, the Fourth Circuit’s opinion cites no example of racial bias in any of the proceedings surrounding the passage of the law, nor does it cite anything from which racial bias may be reasonably inferred. The plaintiffs in the case did not bring forward a single person who had been denied a ballot because of the law. Nonetheless, the Court concluded that the legislature acted “with discriminatory intent.”
The legal reasoning that follows is not exactly airtight. The notion that rolling back same-day registration or early-voting periods is unconstitutional is absurd. Early voting began in 1988, and a dozen states still do not have it, while same-day registration is still not available in some three dozen states. Are all of these jurisdictions in violation of the Constitution? Meanwhile, the idea that providing an identification to vote forces the Court into its own racial stereotyping, e.g., in its de facto endorsement of the testimony of Justice Department officials who explained that black voters were hurt by North Carolina’s law because they are “less sophisticated” than their white counterparts — this despite the fact that the state provides a free ID to anyone who doesn’t already have one, and that you can still vote even without an ID if you sign a form at the polling place asserting that you had a “reasonable impediment” that kept you from getting the free ID. (An almost identical ID law in South Carolina with the “reasonable impediment” exception was upheld by a three-judge federal court in 2013 as nondiscriminatory.)
But the Court apparently is willing to engage in legal contortions in the pursuit of larger ends. The real target of the Fourth Circuit’s ruling is, after all, not North Carolina’s law but Shelby County v. Holder, the 2013 Supreme Court decision that made North Carolina’s law possible in the first place, by striking down down Section 4 of the Voting Rights Act, which required jurisdictions with a history of voter suppression to receive federal permission for any changes to election procedures. The Court argued that an extraordinary corrective is no longer needed when the problem ceases to exist. The most recent reauthorization of Section 4 of the Voting Rights Act was based on data from 1975, and things have changed in the interim. The Selma of 1965 and the Selma of 2016 are very different places. When it comes to the franchise, this is in no small part because the Voting Rights Act did what it was supposed to do: namely, eliminate the scurrilous “tests and devices” (such as literacy tests) used to keep certain groups of voters from the ballot box. Liberals should be cheering the fact that we are no longer in need of the most aggressive provisions of the Voting Rights Act.
Instead, the Left has taken to pretending that requiring a photo ID to vote is the resurrection of Jim Crow. Predictably, doing so seems to have little, if anything, to do with the Constitution and much to do with partisan politics. After all, strong protections remain in place to protect voting rights. The courts can strike down policies on the basis of “disproportionate impact,” even where there is no provable discriminatory intent. Jurisdictions that act unconstitutionally can still be required to submit to preclearance. And, behind the clear terms of the Voting Rights Act, there remains the 15th Amendment, which expressly forbids abridging the right to vote on the basis of race. All that the Supreme Court did was make it so that plaintiffs now have to prove in a court of law that their rights were violated — as is the case with every other civil right.
Besides the longstanding legal precedent for laws along the lines of North Carolina’s (Georgia’s law was upheld in 2008; a challenge to Indiana’s law failed), there is strong and broad popular support for voter-ID laws. In June 2015, 76 percent of respondents — including 58 percent of self-identified Democrats — supported voter-ID laws. A 2012 Washington Post poll recorded support among nearly two-thirds of blacks and Latinos.
The Left has taken to pretending that requiring a photo ID to vote is the resurrection of Jim Crow.
The concerns about electoral probity are well founded. Claims that voter fraud is nonexistent are simply not true. Ask former GOP senator Norm Coleman, whose 725-vote lead over Democratic challenger Al Franken in 2010 turned into a 312-vote victory for Franken — thanks in part to 1,099 votes cast by ineligible felons. In 2015, Philadelphia election judges arrested arrested four electoral judges for casting fraudulent votes. Fake signatures helped place Hillary Clinton and Barack Obama on Indiana’s primary ballot in 2008. Incidents such as these are why lawmakers in more than 30 states have now enacted laws to protect the integrity of their elections.
Unfortunately, liberal attorneys and activist judges are working to thwart those victories. The Fourth Circuit went out of its way to ignore evidence, impugn the motives of North Carolina’s legislature, and concoct specious legal rationales to forward a political agenda. North Carolina governor Pat McCrory says he plans to appeal the decision to the Supreme Court. That body should reaffirm its recent good sense and restore North Carolina’s law.