by Gene R. Nichol, the Boyd Tinsley Distinguished Professor of Law and Director of the Center for Poverty, Work & Opportunity, UNC School of Law
Two weeks ago, federal district court judge Thomas Schroeder issued a 485- page opinion upholding North Carolina’s “monster” voter ID law, HB 589. It apparently takes more than a few pages to explain the acceptability of patent voter suppression. A lot of folks in the Tar Heel State were outraged. A lot cheered. None were surprised. The George W. Bush appointee had carried out his assignment with thoroughness, if not enthusiasm.
Schroeder’s ruling upheld sweeping changes to North Carolina voting practices. Voters now have to present one of six forms of photo identification – pointedly excluding state university IDs – to secure a ballot. The statute also notably curbed early voting, prohibited same day registration, banned out of precinct voting, and ended an early registration program for first time voters. Leaders of the General Assembly had openly expressed their delight with the Supreme Court’s gutting of the Voting Rights Act in the Shelby County case. Now, they rejoiced, the full Monty was possible. They wouldn’t fumble this chance.
The State Board of Elections identified a whopping two instances of “possible” voter impersonation in the previous fourteen year period. We could all understand the urgency. Rick Hasen deemed North Carolina’s new voting law “the worst seen in the United States” in a half-century. Over two hundred thousand Tar Heels were estimated to lack the newly-demanded credential. The newspapers filled with stories of poor, elderly, sick, disabled and disadvantaged citizens struggling to satisfy the dishonest requirement. Schroeder was unmoved. You know, there’s just gonna be some hardship and exclusion when it comes to voting. It’s not as if we’re talking about something important – like a concealed carry permit.
I have been teaching and writing about American constitutional law for so many decades I can’t get it totally out of my system. I’ve even done a bit of election law work. Still, I write today in a modestly different capacity – as one who is intensely involved in the now-famous five-year war for North Carolina’s very decency. Recent seasons have brought us the country’s most potent crusade against poor people, people of color, LGBT folks, women, immigrants, education and the natural environment. The New York Times and the Washington Post have labeled us the nation’s “pioneer in bigotry.” Sadly, they aren’t wrong.
Given this, I’m going to look past some of the doctrinal silliness of Judge Schroeder’s lickspittle opinion, and the limp Roberts Court voting jurisprudence which enables it, to make three or four larger, if somewhat impassioned points. I hope you’ll forgive me. But there’s a special place in hell for federal judges who use their vaunted powers of constitutional enforcement to step on the necks of the marginalized and excluded.
First, Schroeder wrote for nearly five hundred pages, but he did no actual searching or skeptical review of a multi-faceted law that every human being in the state of North Carolina knows to be motivated by the desire to make it harder for people to vote. He purported to be satisfied that “North Carolina had provided legitimate state interests” for its electoral restrictions. “Provided” was the key word. The justifications need not be compelling or significant or accurate or even believed by any sentient being. Form is the order of the day. What has reality got to do with federal constitutional litigation?
I know you think I exaggerate when I say every person in North Carolina understands that HB 589 is meant to suppress the vote. But I don’t. Here’s why.
Voting rights advocates, civil rights activists, racial equity proponents, liberals, Democrats – people like me – invariably believe that the statute was designed to significantly reduce electoral participation and that its targets are folks who, broadly speaking, don’t vote the way our Governor and General Assembly prefer. So, in these left-leaners’ view, HB 589 is a classic, even defining, constitutional transgression. Republicans, Federalist Society members, Tea Party folks, and right-wing ideologues also understand the act was meant to limit electoral participation. But, in their view, Democrats (here) have acted, over the past three decades to make it easier to vote. In the Republicans view, Democrats expanded access to the franchise for partisan purposes. So Republicans can act to restrict the vote for partisan purposes as well. Turnabout is fair play. This view assumes, of course, that the constitution is agnostic about whether electoral participation is expanded or contracted – which can’t be true.
Still, my point now is a different one. Republicans, too, understand that the goal of the statute was to make it harder, on a wide array of fronts, for people in North Carolina to vote. They just think that the move was acceptable payback in the rough and tumble of politics. So, some think HB 589 was designed to suppress the vote and, therefore, it’s unconstitutional. Some think it was meant to suppress the vote, but it is justifiable in context. None think it is not suppression. Schroeder’s job, apparently, was to convince us that what, to all the world, looks to be the night, is, after all, actually the day. He might want to consider a more honest line of work.
And this focus can go a step deeper. Democrats, Republicans, independents, liberal and conservative activists also understand that the goal of the law’s intentional disenfranchisement campaign was to help Republicans and to punish and handicap their adversaries. Democrats and racial equality and voting rights enthusiasts, given both the patterns of attack and the standards of the constitution and the voting rights act, are convinced that the statute’s methodology is to disenfranchise, black, Hispanic, Native American, student and poor voters. Republicans also believe that the act (and the gerrymanders that have accompanied it) are, it is true, meant to burden African-Americans, Hispanics and Native Americans – but that’s not because they are racial minorities, it’s because they’re Democrats. A rather hideous slalom that.
Still, to remind of the overarching point, a law that every honest person in North Carolina (and every other person who can read English) knows to be meant simply, but massively, to make it harder for the citizens of North Carolina to vote was waived through by Judge Schroeder without serious scrutiny. This constitutes a defining failure to perform the obligations of independent judicial review in a constitutional democracy.
Second, the Shelby County case was wrong when it was anticipated, wrong when it was handed down, wrong when legislators anxious to curtail the black vote openly celebrated it, and wrong now that, under its bold usurpations, the voting rights of racial minorities across North Carolina and the South are being gleefully disparaged. In truth, I’ve never been certain whether John Roberts has had the voting rights act so long in his sights because he is carrying the water of his aggrieved white Republican benefactors or because he is almost totally out of touch with the actuality of life on the United States – having spent the entirety of his professional career in service of the powerful and privileged. Maybe we’ll never know.
But despite the rose colored glasses of Roberts and Schroeder, North Carolina now operates as a white people’s government. Both houses of our General Assembly have massive Republican majorities. When they retire to their caucuses, where the work of the chambers is done, though almost a quarter of North Carolinians are black, no black member appears. A white governor and an all-white Council of State round out the monopoly. When they have acted speedily to repeal the state’s Racial Justice Act, to racially gerrymander our electoral districts, to make it harder for African-Americans to vote, to kick a half-million Tar heels off of Medicaid, to usher in the greatest cut to an unemployment compensation program in American history, to abolish the earned income tax credit, to end the state appropriation for legal services, and to throw 100,000 impoverished folks off food stamps, no black member raise his voice in protest. In Roberts’ contented post-racial South, North Carolina is governed by white people’s party. But as Schroeder explains, no worries.
Third, and finally. The North Carolina voter ID case again reminds of the hideousness of a voting law jurisprudence which, in effect, allows some version of this: we aren’t discriminating against black people because they’re black. We’re way past that. That’s so 1950s. We’re disenfranchising black people because they’re Democrats. So chill. We’re cool. (It’s disgusting even to lay it out.)
But what do you do with this humiliating strand of jurisprudence when the people pushing the “partisanship” card govern as a white people’s party? Are the partisan workings of a white people’s party non-racial? Just the thin and accepted gruel of electoral give and take? In North Carolina, that's what Schroeder, and his enabler, John Roberts, have effectively declared. Strom Thurmond surely stirs. Welcome the return of the Dixiecrats.