The U.S. Department of Justice on Monday sued North Carolina over the state’s new voting laws in an expansion of federal voter rights enforcement that elections attorneys predict will face even higher hurdles than a similar fight in Texas.
Attorney General Eric Holder Jr. wants a federal judge in North Carolina to do more than just strike down controversial provisions of the state’s law, including a voter ID requirement, restrictions on early voting and ending some same-day voter registration.
He wants to prove in the civil action that North Carolina intentionally discriminated against minority voters, a finding that could once again force the state’s officials to submit for “preclearance”—from the department or a federal court—certain electoral law changes.
The preclearance regime, under Section 3(c) of the Voting Rights Act, would be similar to the one the U.S. Supreme Court gutted in its June decision in Shelby County v. Holder. The high court found unconstitutional the formula in Section 4 of the law that determined which jurisdictions fall under that regime. The 5-4 ruling ended what Justice Department lawyers described as one of the most efficient ways to fight voter discrimination.
As Congress assesses a legislative fix for that ruling, Holder has initiated an aggressive campaign against new state voting laws. The Section 3(c) legal strategy, election law experts said, has worked in some states and counties in the past, but remains mostly untested. The Justice Department filed Monday’s lawsuit in the Middle District of North Carolina, asking for preclearance and a finding that the state violate Section 2 of the VRA.
Part of the Justice Department’s argument is that North Carolina expedited its new voting laws—just days after the Supreme Court’s decision—even though legislators presented evidence that provisions would disproportionately affect black voters.
“Allowing limits on voting rights that disproportionately exclude minority voters would be inconsistent with our ideals as a nation,” Holder told reporters during a press conference at Main Justice. “And it would not be in keeping with the proud tradition of democracy that North Carolina has built in recent years.”
The action against North Carolina will be more challenging than the department’s suit against Texas, lawyers who are closely following DOJ voting rights enforcement said. Holder acknowledged as much. “All of these cases, including the one I announce today, will be hard fought and they will be difficult,” Holder said. “But they must be brought.”
One advantage in Texas that the DOJ lacks in North Carolina is that a federal court in Washington had already ruled that Texas’ voting changes were intentionally discriminatory, said William Yeomans, a former acting assistant attorney general for the Civil Rights Division and now a professor at American University Washington College of Law.
“There was a good head start on the Texas case. This is not as far along,” Yeomans said. “This is going to require a substantial amount of discovery and litigation and fact finding by the court, so it could take a while.”
However, Yeomans does not think opening a North Carolina front would stretch the Civil Rights Division attorneys too thin. If they can prove intentional discrimination, then the strategy could provide an effective replacement for the disfavored preclearance regime, he said.
Michael Carvin, a Jones Day partner who has fought against the Justice Department in voter law battles, categorized the North Carolina lawsuit lacks merit. “I think this is all about politics and Eric Holder’s ideology,” he said.
He noted that the Supreme Court ruled voter ID constitutional in Indiana in Crawford v. Marion County Election Board in 2008. And as far as reducing early voting time, when the Voting Rights Act was last amended in 1982, no state had early voting in place.
Holder indicated that the Justice Department would attempt to rebut any argument that the intent of the laws was to stop voter fraud, and to show they are restrictive and “at minimum, partisan.”
“It’s hard to see how cutting back on early voting hours has anything to do with voter fraud,” Holder said to the press. “I see other parts of this bill that deal with registering 16- and 17-year-olds so that they ultimately become eligible at the age of 18, I’m not sure what that has to do with voter fraud.”
He argued that, once early voting hours have been extended and used, as 70 percent of African Americans voting in North Carolina did, “to restrict that, to cut it back, is inconsistent with the Voting Rights Act.”
Election law scholar Richard Hasen of the University of California Irvine School of Law said that Holder might find support for that argument in a surprising and controversial ruling by the U.S. Court of Appeals for the Sixth Circuit rejecting an Ohio plan to restrict early voting for everyone but members of the military. However, it won’t be easy.
Hasen said many of the Justice Department’s tools are unlikely to work in North Carolina. Some of the provisions may fall, but successful Section 2 challenges have been in redistricting cases, and there hasn’t been successful Section 2 challenge to voter ID laws, he said.
North Carolina might be able to argue, as Texas has, that the laws intended to discriminate against Democrats and not minorities. At least in Texas, the Justice Department has a judicial finding of racial discrimination in a redistricting case.
“It’s not clear that they’re going to be able to make enough of a showing of intentional racial discrimination in North Carolina to get the bail in,” Hasen said.
Contact Todd Ruger at email@example.com.