WS Chronicle

By Cash Michaels

For The Chronicle

The plaintiffs’ pre-trial brief in the voter identification lawsuit being heard in federal court in Winston–Salem this week alleges that Republican lawmakers amended the strict 2013 voter ID law last summer just prior to the first federal trial because “… the State recognized that … there was no evidence of in-person voter fraud in North Carolina, thus undermining the purported justification for the law.”

The lawsuit goes on to charge that “… the statute stood to impose enormous and disproportionate burdens on minorities once it went into effect in violation of Section 2 of the Voting Rights Act and the 14th and 15th Amendments of the Constitution.”

That lawsuit, NCNAACP v. Gov. Pat McCrory, challenges the Republican governor and the GOP-led state Legislature over passage of the 2013 voter photo identification law, which originally only required a government-issued photo ID to vote in the state.  It also seeks to stop implementation before the upcoming March 15 primaries.

Because of last minute changes to the law last June, voters will be required to show a government-issued photo identification at the polls to cast a ballot, unless they have a “reasonable impediment declaration” for not having one, which didn’t exist before. In that case, they would be required to fill out a form, then show some form of identification like a utility bill, verifying their name and address, in order to then cast a provisional or substitute ballot.

What has not widely been reported is that that declaration can be challenged by another voter in that county, and the county board of elections can disallow the provisional ballot cast as a result if it determines the excuse for not having a photo ID to be false.

Attorneys for the plaintiffs  – the N.C. NAACP, the League of Women Voters of North Carolina, and the U.S. Justice Dept. – maintain in their brief that “The rationale for North Carolina  originally enacting a photo ID requirement was to deter in-person voter fraud. But allowing those without such ID to vote simply by signing a “reasonable impediment” affidavit would seem to undermine that justification, particularly against an evidentiary background of no in-person voter fraud in North Carolina and the increased tax dollars that North Carolina taxpayers will need to spend implementing this law. Against that background, one must question what North Carolina’s real motivation is in continuing to insist on imposing a photo ID law at all.”

The brief goes on to allege that the reasonable impediment requirement effectively creates a barrier for African-Americans and Hispanics to constitutionally exercise their right to vote, because they’re more likely than whites not to have a government-issued identification, like a driver’s license. That, plaintiffs’ attorneys say, is a violation of Section 2 of the 1965 Voting Rights Act, which prohibits the state from “imposing or applying any electoral practice which results in a denial or abridgement …” of the right of any citizen to vote based on race or color.

“Moreover, the North Carolina legislature’s knowledge of the photo ID requirement’s disproportionate burdens on African Americans, its elimination of forms of ID originally included in the bill, and the absence of any credible (much less substantial) legislative rationale, all show that the legislature enacted the statute—at least in part—to make it harder to vote and to deter minority voters in violation of the Fourteenth and Fifteenth Amendments,” the brief maintains. “The law’s subsequent amendment does not ameliorate its prohibited intent. And even if this Court concludes that the legislature lacked discriminatory intent in enacting [the statute] the requirement remains unlawful because it produces discriminatory results and burdens the right to vote in ways that, as has been established in the record, are not outweighed by any substantial State purpose.”

As evidence of the law’s discriminatory effect, the brief  presents statistics showing that blacks are more likely not to have photo ID than whites, and they also have more trouble obtaining that identification as well.

In their defense, attorneys for Gov. McCrory and the state Legislature maintain that the reasonable impediment declaration requirement they adopted for North Carolina is very similar to the one which they say passed muster in South Carolina. Plaintiffs’ attorneys disagree, saying that North Carolina’s provision is based on Section 2 of the VRA, and not Section 5, as is South Carolina’s.

Plaintiffs also alleged that state lawmakers knew that the voter ID law would have a disproportionately discriminatory affect on African-American voters, but went ahead and enacted it anyway. That is a violation of the 14th and 15th amendments to the U.S. Constitution.

“The evidence in this case supports a finding of discriminatory purpose,” the brief says. “The record demonstrates that in enacting [the statute], the North Carolina General Assembly was responding to increased political power among African-American and Latino voters by making changes in the State’s election law to limit that power and prevent minority voters from threatening the prospects of the political party then in control of the General Assembly.”

This week’s trial is expected to last five to seven days, depending on the amount of testimony from both sides.