Monday, September 30, 2013

Justice Department to Sue North Carolina Over Vote Restrictions

AG Eric Holder announced today that the U.S. Department of Justice would file suit against North Carolina in federal court to stop its new restrictions on voting.  We previously posted on the ACLU suit against the state here.

The complaint alleges that North Carolina HB 589 reduces early voting days, eliminates same-day voter registration during early voting, prohibits the counting of provisional ballots cast outside a voter's precinct, and imposes a voter ID requirement--all in violation of Section 2 of the Voting Rights Act.  DOJ argues that the changes have both a discriminatory purpose and a discriminatory effect.  The Department also seeks "bail-in" under Section 3(c) of the VRA.

DOJ most recently sued Texas to stop its voter ID law and redistricting plans.  The Department sought bail-in relief in those cases, too.

The cases come in the wake of the Court's ruling this summer in Shelby County v. Holder striking Section 4(b) of the VRA, the coverage formula for the preclearance requirement.  By striking Section 4(b), the Court rendered Section 5 preclearance a dead letter, unless and until Congress can rewrite it in a way that would pass muster with this Court--that is, likely never.  Section 3(c) bail-in works very much like Section 5 preclearance, though.  If acourt orders bail-in, it will retain jurisdiction over the state "for such period as it may deem appropriate and during such period no voting qualification or prerequisite to voting or standard, practice, or procedure with respect to voting different from that in force or effect at the time the proceeding was commenced shall be enforced unless and until the court finds that such qualification, prerequisite, standard, practice, or procedure does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color . . . ."

The North Carolina and Texas cases are sure to raise two new fronts in the assault on the Voting Rights Act: challenges to congressional authority to enact Section 3(c) bail-in, and challenges to congressional authority under Section 2 to ban state laws that have a discriminatory effect (even if not a discriminatory purpose).

http://lawprofessors.typepad.com/conlaw/2013/09/justice-department-to-sue-north-carolina-over-vote-restrictions.html

Cases and Case Materials, Congressional Authority, Elections and Voting, Federalism, Fifteenth Amendment, Fourteenth Amendment, Fundamental Rights, News | Permalink

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Comments

At first glance, the DOJ's complaint against North Carolina seems a tad bit stronger than the Texas case. HB 589 is a direct attempt to reduce the number of African-American voters, and has many more provisions than the Texas and Indiana voter ID laws combined. The state's interest of changing the system to "achieve consistency in the early voting process and to treat early voting facilities in a uniform manner throughout the state" does not seem like it would be enough to pass the Court's balancing test set out in Anderson (and applied in Crawford).

Posted by: Stephanie Snow | Oct 4, 2013 7:25:38 AM

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