It could be argued that North Carolina has been ground zero when it comes to litigation over voting rights, and the U.S. Commission on Civil Rights recently took notice.
The Commission held a public briefing Friday in Raleigh as part of its ongoing assessment of federal enforcement of the Voting Rights Act (VRA). Members heard from a diverse group of expert panelists and more than 30 people who signed up to speak during public comment.
The first panel of the day focused on voting rights in the wake of the U.S. Supreme Court decision in Shelby County v. Holder, which removed a federal preclearance requirement for certain areas before making changes to their voting laws or practices.
Shortly after that decision was handed down, North Carolina’s “monster” voting law was passed, which enacted a voter identification requirement and eliminated several processes, including valid out-of-precinct voting and same-day registration during early voting period.
Vanita Gupta, President and Chief Executive Officer of the Leadership Conference on Civil and Human Rights, said the Shelby decision dramatically weakened the government’s ability to get involved in challenges to voter access.
“The litigation is slow; it is enormously time-intensive; it ties up valuable resources,” she said.
And elections are going on during that litigation, which creates a very real consequence for voters who are disenfranchised, Gupta said.
Without preclearance, she added that there will be no prophylactic review process for 2020 redistricting. That combined with the U.S. Department of Justice switching gears when it comes to voter access under Attorney General Jeff Sessions and the creation of a voter fraud commission seems to be a prelude to purging votes, she said.
Hans von Spakovsky, an attorney and a former member of the Federal Election Commission, disagreed and said Section 5 of the VRA (which is no longer used after the Shelby decision) was used to prevent locales from evading court orders and court remedies.
“Because that is so rare today … there’s no reason for Section 5 to be put back in for coverage,” he said.
Justin Levitt, a professor of law at Loyola Los Angeles School, said the Shelby decision left Americans less able to defend themselves in terms of fighting for voting rights.
“I fear that the worst is yet to come,” he said.
Levitt added that when lawmakers dig in during the litigation process, they don’t bare the costs, the taxpayers do. He echoed Gupta’s remarks and said that litigation is expensive and slow and as elections still occur, it leads to the same lawmakers becoming incumbents, who subsequently enact more discriminatory policies.
“Those elections cannot be undone,” he said.
The Rev. Dr. William Barber referred to it as the unconstitutionally constituted legislature.
Panelists took several questions from the Commission. Vice Chair Patricia Timmons-Goodson took the opportunity to ask about judicial redistricting, which is a proposal in North Carolina that would change the way judges and prosecutors are elected. She wanted to know about the potential discriminatory effect.
Levitt responded and said her question was part of the point of the detriment of the Shelby decision. He said proving discrimination if such a plan was enacted would take years, as would litigation.
“If they are [discriminatory], that will affect the character of the justice that the people of North Carolina receive while they wait on litigation,” he added.
A little over 30 people spoke during the public comment portion of the day-long event. Some were in favor of stronger voting laws and many were in favor of creating more access for voters.
Jay DeLancy, the Voter Integrity Project Director, told Commissioners that voter fraud is “easy to commit, hard to detect and impossible to prosecute.”
Mary Elizabeth Hanchey, of the NC Council of Churches, argued a different point. She said “we are drowning in artful barriers to [voting] access.”
“It is no accident of history that we are still talking about this today,” she said.
Similarly, Ajamu Dillahunt, told Commissioners that those barriers directly impacted college students, and particularly those enrolled at North Carolina Agricultural and Technical State University, which was split down the middle during the last redistricting process.
“This was a direct attempt to suppress the power of the back student vote,” he said.
Commissioners will use Friday’s feedback as a basis for its 2018 report to Congress about the state of voting rights across the nation.