VIVA Hearing was an Eye-Opener

Yesterday was an eye-opener for me. I traveled to Charlotte to be in the courtroom as a three-judge panel heard arguments in the case brought by a coalition of liberal groups trying to halt certain provisions of the new election reform law. The legislation was passed and signed into law in 2013 and much of it was implemented in last May’s primary. The progressive groups, including the NAACP and the League of Women Voters, are seeking to overturn the decision made by U.S. District Court Judge Thomas Schroeder from the United States District Court for the Middle District of North Carolina to not issue a preliminary injunction for the November General Election.

The three-judge panel included Judges Henry Floyd, Diana Motz and James Wynn. Judge Wynn essentially took center stage during two hours of arguments and when I closed my eyes I thought that I was in a Moral Monday meeting with the most radical activists working up the crowd. In the middle of one of his tirades, Wynn proclaimed, “Why does the State of North Carolina not want people to vote?” This nonsense came after he made it clear that he didn’t like the bill, he didn’t like the way it was passed and he blamed the state (namely the legislature) for being in court because they passed the bill in the first place. He also made an aside comment to the state that “you” wouldn’t have changed the law if “you” only had primaries.

Wynn also went on a rant about out-of-precinct voting. He decried the fact that the state wouldn’t let “Grandma vote anywhere she wanted to.” He talked about his own personal proximity to a polling place that is not in his precinct but he would have to drive a couple of miles to his correct polling place. That’s right – the judge is upset that he has to drive a couple of miles to exercise his right to vote in the correct polling place in his precinct.

Judge Wynn showed his ignorance when he gave the nod to the prospect that activist groups take voters to the wrong polling place because it is the convenient thing to do. Wynn didn’t know enough of the facts to consider that these voters are the real disenfranchised voters. They’re disenfranchised because they have probably never been told that when they vote out-of-precinct much of the time their votes really don’t count. You see, in North Carolina – where there are more than 2500 precincts (with polling places), 120 legislative districts and 13 congressional districts – if you choose to vote in a different precinct, more than likely at least one of your choices will not count because ballots are determined by the districts where the voters live.

In this circus I watched both sides attempt to make their case to the panel of judges. The plaintiffs (NAACP and the League of Women Voters) said that Judge Schroeder had gotten it all wrong and that with the change in the law African-Americans will be treated differently than white voters. They tried to persuade the judges that African-American voter registration and turnout had spiked after 2007 and that the increase was solely due to Same Day Registration (SDR), out-of-precinct voting and a 17-day early voting period. They did a good job too, because not one person (judges or defense) suggested the real reason for a spike in African-American turnout was due to the campaigns and elections of President Barack Obama in 2008 and 2012. When you look at turnout numbers through the years it’s evident that the liberal election laws have not increased voter turnout.

Judge Motz asked the plaintiffs several times why they did not ask for a preliminary injunction before the May primary. She never got a straight-forward answer. Although the U.S. Justice Department did not file a notice of an appeal, its attorneys did speak at the hearing.

The defense (Governor, legislature and State Board of Elections) did themselves no favors in their arguments. Alexander Peters, representing the North Carolina Attorney General’s Office, attempted to explain why the state and local elections officials would be burdened if they were made to change the rules 40 days out from the election. Judge Motz almost laughed at the defense’s half-hearted suggestion that the state would be burdened because the SBOE had printed a brochure and mailed it to the voters of the state.

Unfortunately, Mr. Peters couldn’t get past the printing of a brochure that gave general instructions and provided bios of judicial candidates. He only touched on the training of elections officials and made that sound almost insignificant. Why didn’t Peters tell the judges that precinct officials in more than 2,500 precincts and hundreds of early voting sites have been trained and would need to be re-trained if the court overturned the District Court’s decision? Certainly suggesting that more than 10,000 elections workers would need to be re-trained would have made an impression, even on the most liberal justice. And while the plaintiffs’ attorneys said voters voted out-of-precinct and used SDR because the system had failed them or they had not complied with the rules, the defense never suggested that these voters had the same opportunities as all other voters to register 25 days ahead of time and to travel to their proper precincts on Election Day.

So what, you ask, was eye-opening? Well, I had expected to see the same (or maybe I should say some) level of professionalism and serious reverence for the law that I had witnessed at the preliminary injunction hearing in July. Instead, I watched a judge embarrass himself and maybe the entire Fourth Circuit Court. I honestly don’t think Judge Wynn cares about that: He took the spotlight and ran with it for two hours in a federal courtroom.