The fundamental question for 2020
Welcome to a special bonus edition of Popular Information. — Judd
In 2020, most media coverage will focus on this question: who will voters elect on November 3? But that skips over a more fundamental question: who gets to vote?
Republicans in North Carolina have been attempting to impose a voter ID requirement for almost a decade. It's a swing state that Trump won by just 3.6% in 2016 and could determine the balance of power in the U.S. Senate in 2020.
On Tuesday, a federal judge, Loretta Biggs, ruled that the Republicans' latest effort to impose a voter ID requirement for the 2020 election was likely unconstitutional and enjoined the new law from taking effect. Why? In a 60-page decision, Judge Biggs ruled that the law was created by the Republican-controlled legislature with a "racially discriminatory intent." In other words, the purpose of the law was not to address a "legitimate state interest" but to make it more difficult for blacks, Latinos, and other minorities to vote.
Judge Biggs also found that the law would likely work as intended. "[T]he evidence suggests that S.B. 824 is likely to have a racially disproportionate impact in North Carolina by preventing some voters of color from casting their ballots when they get to the polls," Biggs ruled.
Biggs' decision was informed by North Carolina's "long history of race discrimination generally and race-based vote suppression in particular." But North Carolina is not an anomaly. Across the country, Republicans are attempting to make it more difficult for racial minorities to vote by imposing unneeded restrictions on voting.
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The history of voter ID in North Carolina
The Republican legislature first tried to require an ID for voting in 2011. It was vetoed by the then-Governor Bev Perdue (D), and the legislature was not able to override her veto.
Things really got interesting in 2013. The Republican legislature tried again, this time with a "less restrictive" voter ID bill. That bill would have allowed many alternative forms of identification, including community college IDs and public assistance IDs, disproportionately used by African Americans and other minorities. But while the legislation was pending that year, the Supreme Court invalidated the preclearance provision of the Voting Rights Act in Shelby County v. Holder.
Preclearance required the state to prove to the Department of Justice that any changes to state election law "would have no discriminatory purpose or effect." From 1980 until the practice was eliminated in 2013, the Department of Justice ruled that North Carolina failed to meet that standard 50 times.
Judge Biggs summarized what happened next:
Following that ruling, the legislature “requested and received racial data” on the use of various voting practices in the state before “swiftly expand[ing]” the single-issue H.B. 589 into “omnibus legislation.” The newly expanded bill included “a number of voting restrictions” that would fall most heavily on minority voters, including stringent voter-ID requirements that excluded “many of the alternative photo IDs used by African Americans.”
In 2016, the Fourth Circuit Court of Appeals found that North Carolina's voter ID law violated the Equal Protection Clause of the Fourteenth Amendment because it targeted minority voters with "almost surgical precision.”
The third time is not a charm
Despite the adverse court ruling, Republicans in the North Carolina legislature ere undeterred. They started by proposing an amendment to the North Carolina constitution requiring voter ID. The amendment was approved by 55% of voters in November 2018. But critically, it left the details of how to implement the voter ID requirements to the legislature.
But there was a problem. For years, Republicans used unconstitutionally gerrymandered legislative districts to maintain supermajorities in both legislative chambers. That's how, in 2016, North Carolina voters elected Roy Cooper, a Democratic, as governor, but Republicans still retained supermajority in the legislature. Later that year, however, the federal court found the voting districts were racially discriminatory and threw out the legislative maps.
In November 2018, with new maps, Republicans lost their supermajority. So, in a lame-duck session in December 2018, Republicans used their last gasps of supermajority power to pass voter ID legislation and override Governor Cooper's veto.
That's the law that Judge Biggs considered in her decision. Judge Biggs ruled that law shared too much in common with the one crafted by North Carolina Republicans post-Shelby. Specifically, Judge Biggs pointed to the decision to exclude public-assistance IDs.
[N]oteworthy in the legislative history is the decision not to include public-assistance
IDs as an acceptable form of identification. Here again, the Fourth Circuit in McCrory
specifically singled out the omission of public-assistance IDs as evidence that H.B. 589 was imbued with discriminatory intent, recognizing, as the district court had, that “the removal of public assistance IDs in particular was suspect because a reasonable legislator...could have surmised that African Americans would be more likely to possess this form of ID.” …An amendment to the bill proposed by Representative Bobbie Richardson—which was rejected—would have permitted voters to use any “identification card issued by a branch, department, agency, or entity of the United States or [North Carolina] for a government program of public assistance,” so long as that ID contained a photograph. The decision not to include this form of identification in S.B. 824, despite the attention given to it in McCrory, is, as it was with H.B. 589, particularly suspect.
Further, blacks are "more likely than whites to possess government employee IDs." But, with the exception of military IDs, "federal employee IDs are completely excluded." State and local government IDs must be submitted and approved to be accepted, and "only a relatively small number of state and local government employee IDs have been approved for use in the 2020 elections."
The provision also makes a special exception for people over 65, allowing them to use most forms of expired IDs. In North Carolina, "24.2% of the state’s white population is 65 or older, compared to just 16.1% of African Americans."
Who doesn't have an ID?
Most people reading this newsletter probably have a driver's license. So just how big of a problem is this? Data submitted to the court shows that a significant portion of North Carolina's population does not have a driver's license and that population is disproportionately black and Latino.
The overall “no-match” rate— that is, the percentage of registered voters without a DMV-issued ID—was 8.1%. When sorted by race and ethnicity, however, the data reveals large discrepancies in DMV-issued-ID possession rates. For example, 10.6% of African American voters are unmatched, versus just 6.5% of white voters. Similarly, 11.1% of Hispanic voters are unmatched, compared to just 5.7% of non-Hispanics. The takeaway is that African American and Hispanic voters are less likely than whites to have some of the most common forms of identification that can be used to vote under S.B. 824—driver’s licenses and other DMV-issued IDs.
This data, along with the refusal to accept alternate IDs disproportionately relied on by minorities, is what convinced Biggs to enjoin the law.
A solution in search of a problem
The justification for requiring an ID at the polls is to prevent in-person voter fraud. But, as an editorial in the Raleigh News & Observed noted, this is a problem that is virtually non-existent in the state:
There’s almost no evidence of in-person voter fraud — an act that was a felony even before the voter ID law — and there’s no reason to expect a surge of it in 2020. North Carolina officials combed through the 2016 election results in which Republican Gov. Pat McCrory lost narrowly to Democrat Roy Cooper. They found one case of in-person voter impersonation out of 4.8 million votes cast.
The one case of in-person voter fraud uncovered in North Carolina was "a woman who impersonated her dead mother, reportedly to honor her mom’s final request to vote for Donald Trump."
What's next
Judge Biggs' decision isn't the last word. Republicans in the North Carolina legislature have demanded that the North Carolina Election Board, which is tasked with defending the law, immediately appeal.
It's unclear what the Election Board, which is controlled by Democrats, will do. If the Election Board decides not to appeal the rulings, Republicans are likely to intervene so they can appeal.
Barring swift action by an appeals court, it seems unlikely IDs will be required for the March primary. But whether or not an ID will be required to vote in North Carolina in November 2020 is still uncertain.
Thanks for reading!
