How North Carolina voter ID opponents are undermining a Voting Rights Act defense

North Carolina is considering a proposed voter identification law. It requires voters to submit one of a limited number of forms of identification before voting.

These laws have been enacted with increasing frequency around the United States over the last decade. But some of the laws are more onerous than others: some require a more limited subset of identification that requires more effort for individuals to obtain.

The evidence has been mixed.  There's relatively little documented in-person voter fraud, the kind that would be prevented by voter identification laws; but there's little evidence of a decline in voter turnout after a voter identification law takes effect. (This greatly oversimplifies the debate, as supporters and opponents have other, quite valid, reasons--but this post isn't one about the merits or drawbacks of voter identification laws.)

Some writers are upset about the bill. Ari Berman blogging at The Nation calls the bill "extreme voter suppression" that "could disenfranchise 318,000," one-third of them African-Americans, "guaranteeing . . . less voter participation," in part because "North Carolina no longer has to clear these voting changes" under the Voting Rights Act. Dahlia Lithwick blogging at Slate identifies a "bastion of voter suppression" now that North Carolina no longer had to "check [its] crazy" under the VRA's preclearance regime, likening "the beatings, deaths, police-led violence and brutality" of the Civil Rights era with "how egregious state efforts at vote suppression have been and continue to be, and how extensive the record of brazen misconduct remains." Scott Keyes blogging at ThinkProgress explains that the bill is a "wrecking ball" permitted after the VRA has made "it easier for states with a history of racial discrimination like North Carolina to enact new voter suppression laws."

The Supreme Court handed down a decision in Shelby County v. Holder last month invalidating Section 4 of the VRA. The coverage formula, the Supreme Court explained, hadn't been legislatively updated in approximately 40 years. The country, the Court explained, has changed: voter participation among minority voters has increased dramatically; the gap between white voters and black voters has declined, and in some places black voter turnout exceeds white voter turnout; and so on. As the VRA preclearance regime was justified only because of "exceptional conditions" in those covered jurisdictions, the Court reasoned, the absence of those conditions--or, a diminution of those conditions in relation to the rest of the country--rendered the formula inadequate for today.

And so, the lament goes, if only the coverage formula under the VRA had not been unconstitutional, 40 counties in North Carolina would still be covered, and this "voter suppression" bill of voter identification would require preclearance by the Department of Justice.

But what about Pennsylvania? 

Pennsylvaia recently enacted a voter identification law. Mr. Berman blogged that the law was "unjust, unnecessary and discriminatory" because, among other reasons, "voters in predominately black precincts in Philadelphia are 85 percent more likely than voters in predominately white precincts to lack state-issued ID." Ms. Lithwick blogged that voter identification laws (like Pennsylvania's) "look an awful lot like methods pioneered by the white supremacists from another era that achieved the similar results" from politicians "capitalizing on the remnants of Jim Crow," as such laws are "so clearly reminiscent of the Jim Crow era." Mr. Keyes blogged that the Pennsylvania voter identification law "could bar hundreds of thousands, predominantly minorities and the elderly, from the ballot box," conceding that "Pennsylvania, however, is not subject to the Voting Rights Act and does not need preclearance from the Justice Department."

So, why not? If Pennsylvania (and states like it) are enacting  "Jim Crow" "voter suppression" laws, and if their conduct is as egregious as North Carolina's, then why lament the loss of the VRA for North Carolina, without words for covering jurisdictions like Pennsylvania?

Therein lies the logical problem (and it takes a bit of formal logic to get there, so stick with this even-longer post).  The Court in Shelby County  found that the covered and uncovered jurisdictions just weren't so different anymore. Congress hadn't adequately justified treating the covered jurisdictions differently, subjecting them to an "exceptional," "unprecedented" remedy of preclearance.

So the more North Carolina voter identification opponents lament the loss of the VRA, the more they undermine it when opposing other voter identification laws. North Carolina, for instance, is acting like the legislatures in many other states. Its election laws are not terribly different than what other states are proposing. The Court, in other words, was right: the fortuitous fact that counties in North Carolina used impermissible voting laws during the Johnson and Nixon administrations hardly should mean that its attempt to enact a law should be stymied when a comparable law in Pennsylvania has no such coverage.

Now, the immediate rejoinder is fourfold: North Carolina's law might be more onerous than Pennsylvania's, which justifies a disparate treatment; North Carolina's law is a bundle of "voter suppression" tactics; one voter identification law cannot be the basis on which to examine the difference in covered and uncovered jurisdictions; and this event proves that more coverage is needed, not that no coverage is needed.

Is North Carolina's voter identification law more onerous? Well, if Pennsylvania's and laws like it are "discriminatory" and akin to "Jim Crow" and affects "predominantly minorities," it's hard to say that the quantum of outright discrimination, if true as alleged, justifies an exemption for one discriminator but not the other.

Is North Carolina's bundle of "voter suppression" tactics distinguishable? Perhaps. But, again, even if the quantum of outright discrimination differs, the rhetoric employed over voter identification laws writ large, and Pennsylvania's in particular, suggests that these jurisdictions should not be treated differently.

Is it fair to evaluate the entirety of the VRA coverage formula under this single debate over voter identification laws? Maybe not. But if these tactics are as egregious as alleged, these kinds of laws are at the core of the kinds of "voter suppression" tactics akin to "Jim Crow" that the VRA was designed to eradicate. It's hard to think of the kinds of laws that have created as much passion as these laws. Occasionally, early in-person voting or same-day registration laws are discussed, but the recency and increase in voter identification laws make it a good proxy for the debate. 

Finally, does this mean that we need to increase  the scope of the coverage formula under the VRA? This creates a problem for VRA supporters, too. As South Carolina v. Katzenbach  explains, the remedy in Section 5 was an "uncommon exercise of congressional power," but "exceptional conditions" and "these unique circumstances" justified the legislation. With few exceptions, most agree that conditions today are dramatically better for minority voters than they were in 1965, both in covered and uncovered jurisdictions.

So if a new coverage formula increased  the number of covered jurisdictions, the Court would face two dilemmas: whether the new Section 4 formula was rational (which, given an adequate and thoughtful congressional record, it may well be), and then whether the remedy in Section 5 is constitutional. And if the "exceptional," "unique" circumstances of 1965 are dramatically better for minority voters, then it's going to be extremely difficult for proponents to justify expanding  the preclearance regime.

Preclearance, after all, is a fairly drastc remedy. It halts the enforcement of a law that the jurisdiction otherwise had the authority to enact. It's the kind of proposal that was ultimately rejected at the constitutional convention. The Reconstruction Amendments give Congress a new power to try unique remedies, but that power, of course, is not unfettered.

So if the conditions have improved, it's difficult to argue that more  jurisdictions should be covered, under either the Court's most recent or earliest precedents.

Which leaves opponents of North Carolina's voter identification law in a difficult position if they lament the loss of the coverage formula of the VRA. They are essentially conceding that North Carolina, previously covered, is behaving substantially similar to previously uncovered jurisdictions. But they reject that North Carolina should remain uncovered. So if North Carolina is going to be covered, then similarly-situated jurisdictions should also be covered, too. And if that's the case, it would almost assuredly include more jurisdictions. But that cannot hold, either, if conditions have improved. And perhaps there are non-voter identification law-related reasons to cover North Carolina but not Pennsylvania. But that is not the argument being made: the "voter suppression" tactic is a voter identification law in both covered and uncovered jurisdictions, and the loss of the VRA is lamented specifically in the context of North Carolina's voter identification law.

And so, opponents of North Carolina's voter identification law may well have a very valid claim on the merits of whether voter identification is a good idea. But when it comes to the Section 4 formula, the lament mirrors the lament of previously-uncovered Section 4 jurisdictions--and it ultimately undermines the very case for Section 4 if covered and uncovered jurisdictions are behaving similarly.