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North Carolina, the ne’er do-well state, immune from Voting Rights formula, but not court scrutiny

I_Voted_StickerUpdate: The News & Observer [1] is reporting that Gov. McCrory will appeal the Fourth Circuit’s ruling, but without Attorney General Roy Cooper’s representation.

April 4, 2013, was a fateful day in North Carolina voting history. On that Thursday, GOP legislators Tim Moore, Tom Murry, Harry Warren and Ruth Samuelson filed an election reform bill [2] designed to disenfranchise African-American — and by extension — Democratic voters.

How could the lawmakers lose? They held a Republican majority, backed by a newly elected Republican governor. Meanwhile in Alabama, a key voting rights case was being argued before the U.S. Supreme Court that could clear the path for the bill to pass federal muster.

For nearly 50 years, Section 5 of the Voting Rights Act [3] had required 40 counties in North Carolina [4] and many parts of the South, to clear those changes because of the jurisdictions’ history of disenfranchising minority voters. The U.S. Department of Justice had used Section 5 to help ensure fairer elections in these areas with a checkered past. Now the federal government could not use its formula to impose these restrictions.

On June 25, 2013, the Supreme Court ruled 5-4 in Shelby v. Holder [5]that the “coverage formula” [6] used to determine which states and counties required federal approval before they made election changes was in fact, unconstitutional.

“North Carolina felt confident it wouldn’t be under any type of supervision,” says Guy-Uriel Charles [7], founding director of the Duke Law Center on Law Race and Politics.

One month later, on July 26, 2013, at 10:39 p.m. state lawmakers passed the election bill [8]. All the yes votes were cast by Republicans; all the no votes were cast by Democrats. On Aug. 12, 2013: McCrory signs bill into law.

It took two years, but the Fourth Circuit Court has both overturned the law [9] and revealed lawmakers’ discriminatory intent. Will North Carolina be exiled to the Section 5 doghouse?

It’s unlikely, Charles says. Since the Supreme Court struck down the coverage formula on constitutional grounds, it won’t be reinstated. Now the DOJ lacks a key statute to exert its authority. Congress could pass a new law and a new coverage formula, but that’s highly unlikely.

Instead, the courts will be the cudgel to keep ne’er do-well states in line. “The courts are sending a message to the states that if you pass these types of statutes, there’s a good possibility we will strike it down,” says Charles, who is also the Senior Associate Dean for Faculty & Research at Duke. “North Carolina thought no one was minding the store. But the Fourth Circuit says ‘We are minding the store.'”