DOJ, pundits fear North Carolina elections have returned to the barbaric year 2000

I read the Department of Justice's lawsuit regarding North Carolina's new election law, HB 589, with interest. I then read the judicial opinion denying a preliminary injunction. And I watched the case unfold over the past year, leading up to the 2014 midterm election.

I want to bracket the discussion about its voter identification law, over which, I think, there is a very vigorous and good-faith debate among many as to its necessity, its impact on voters, and so on.

I want to focus on the fact that the DOJ--and, more generally, pundits and critics of North Carolina's law--didn't challenging just the voter identification part of the law. It also challenged three other provisions: a change in early voting days from 17 to 10, the elimination of same-day voter registration during early voting, and a rule that provisional ballots cast in the wrong precinct will not be counted.

These three changes hearken back to a barbaric year in America's election history: 2000. 

In 2000, early voting simply did not exist. It was created by the North Carolina legislature in 2001.

And same-day voter registration during the early voting period could not exist, because early voting did not exist--but the same-day registration procedures were instituted in 2007.

Additionally, 2000 was before the Help America Vote Act of 2002, which required states to institute procedures for provisional balloting. When North Carolina did institute provisional balloting, there was a controversy in 2004 as to whether out-of-precinct votes should be counted. In James v. Bartlett (PDF) in 2005, the North Carolina Supreme Court unanimously construed the provisional ballot statute to preclude the counting of out-of-precinct provisional ballots, as the State Board of Elections, it concluded, made a "unilateral decision" to count such votes for the first time in this election. The North Carolina legislature then amended the statute in 2005 to allow for the counting of out-of-precinct ballots.

For perspective, then, early voting did not exist before 2001; same-day voter registration during early voting did not exist before 2007; and out-of-precinct provisional ballot counting did not exist before 2005.

It may well be that a court one day agrees with the Department of Justice's complaint: that this law was enacted for a discriminatory purpose; that despite the small sample size of data, it appears that the law will have a discriminatory impact on minority voters; that minority voters taking advantage of recent novations in election law means that such novations are essentially unalterable by future legislatures; and so on.

But there is a risk, I think, in the DOJ overplaying its hand. (And a touch of sarcasm in this post title doesn't hurt to make that point!) All litigation, of course, is fraught with risks, and post-Shelby County Voting Rights Act litigation is no exception.

Indeed, the worst fearmongering appears never to have materialized. In North Carolina this cycle, voter turnout increased; African-American voter turnout apparently increased; early voting increased.

There is much more nuanced statistical analysis to be done, of course. And these statistics can never capture whether, on an individualized level, potential voters were unable to vote as a direct result of these changes. But, it does, I think, suggest that one could be too quick to engage in rhetoric, and too slow to examine the actual, material impact of voting laws.