High Court: Legislature Got It Right

On Oct. 8 the U.S. Supreme Court upheld North Carolina’s new elections reform legislation, effectively reversing a ruling in the 4th Circuit Court of Appeals blocking the provisions of the Voter Identification and Verification Act (VIVA). The Supreme Court’s ruling, and the success of the law in practice, vindicate the North Carolina General Assembly’s decision to pass VIVA and update the state’s crazy-quilt of election laws.

VIVA was passed into law in 2013 and implemented successfully for the 2014 Primary Election. The state’s attorneys delivered the Emergency Application for Recall and Stay of Mandate to the high court just 34 days ahead of Election Day. How did we come to the place of seeking a last-minute reprieve from the highest court in the land? A look at the timeline of the case will help us see the well-calculated moves by the groups attempting to use the courts to thwart elected representatives of the people.

VIVA was signed into law on August 12, 2013 and on the same day the NC NAACP filed a complaint challenging the law’s voter ID requirement, elimination of Same-Day Registration (SDR), reduction of early-voting days, prohibition of counting out-of-precinct votes, and the expansion of poll observers and ballot challengers. On the same day, the League of Women Voters (LWV) filed a similar complaint but added to the challenged provisions the elimination of the discretion of county boards of elections to extend poll hours one hour on Election Day in “extraordinary circumstances.” (The new law requires the State Board of Elections to make the decision to extend the time the polls are open).

On Sept. 30, 2013, Eric Holder’s Department of Justice filed a complaint challenging changes in early voting, SDR, out-of-precinct voting and voter ID.

In December 2013, after a magistrate judge consolidated the three cases for the purposes of scheduling and discovery, the court allowed other individuals to intervene. The interveners’ complaint included all the previous challenges.

It wasn’t until May 19, 2014, 13 days after the May 6 Primary Election, that the plaintiffs sought a preliminary injunction to enjoin many of VIVA’s provisions. The timing is important in that the plaintiffs allowed the state to implement the new law in the May 6 Primary.

This may have been a miscalculation on the Left’s part. Perhaps they truly believed that the new election reform provisions would cause real problems at the polls and if so their case would be made. They couldn’t have been more wrong. Not only did the election run smoothly, but overall turnout increased by 5 percent over the 2010 Primary. Moreover, African-American turnout increased by nearly 30 percent. The plaintiffs’ case relies on the presumption that the new voting law violates Section 2 of the 1965 Voting Rights Act and discriminates against minority voters. The results of the May primary undercut that claim.

The preliminary injunction hearing took place in Winston-Salem before U.S. District Court Judge Thomas Schroeder. Schroeder presided over four days of testimony from July 7 to July 10. On Aug. 8, Schroeder in a 125-page ruling denied the plaintiffs’ motion for an injunction. It took two weeks for the NC NAACP and the League of Women Voters (Aug. 20 and Aug. 21 respectively) to file their appeals.

The U.S. Court of Appeals for the Fourth Circuit scheduled the hearing for September 25, more than a month later. On that day the Court of Appeals listened to one hour each of arguments from the plaintiffs’ and the states’ attorneys. It was in this hearing that doubts were first raised about the fact that the plaintiffs’ waited nearly two weeks after VIVA’s provisions had been implemented successfully in the 2014 Primary to file a preliminary injunction. Judge Diana Motz, who wrote the dissenting opinion in the Court’s decision, asked the plaintiffs repeatedly why they had not asked for a preliminary injunction before the May election. She never received a straightforward answer.

Six days later, on Oct. 1, the three-judge panel, in a 2-1 decision, issued an opinion that “affirmed in part and reversed in part” the district court’s order. In essence, the order re-instated SDR and out-of-precinct voting.

The next day the state delivered the Emergency Application for Recall and Stay of Mandate to U.S. Chief Justice John Roberts. Then on Oct. 8 the Supreme Court returned its 7-2 decision in favor of the state, with only Justices Ruth Bader Ginsburg and Sonia Sotomayor dissenting.

This long, drawn-out battle was won by the state and people of North Carolina. The implementation of North Carolina’s new election reform law begins to establish order in the state’s election and voting processes. In passing VIVA, the legislature took a first step in attempting to treat all voters fairly and equally when they vote in North Carolina.

The next battle is scheduled for July 2015, when the entire law will be challenged in a full hearing.