Even though the odds of a restrictive voter ID law actually fixing anything are 31 in a billion, a judged appointed by Dubyah allowed the worst version of a bad law to remain in effect for the 2014 election.
On Friday, Judge Thomas D. Schroeder denied the plaintiffs’ ( DOJ, the ACLU and the League of Women Voters) request for a preliminary injunction against North Carolina’s voter ID law.
We can point to the possibility that, in the end, this reprehensible law will eventually collapse under the weight of the very flaws that are inherent in restrictive Voter ID laws. However, Schroeder indicated that because he was skeptical that the plaintiffs would ultimately prevail, he would not grant a preliminary injunction.
After careful consideration, the court concludes that Defendants’ motion for judgment on the pleadings should be denied in its entirety. Plaintiffs’ complaints state plausible claims upon which relief can be granted and should be permitted to proceed in the litigation. However, a preliminary injunction is an extraordinary remedy to be granted in this circuit only upon a “clear showing” of entitlement. After thorough review of the record, the court finds that as to two challenged provisions of SL 2013-381, Plaintiffs have not made a clear showing they are likely to succeed on the merits of the underlying legal claims.
Reactions to the ruling recognize that it is well written and well thought out.
Ian Milhiser of Think Progress writes:
Much of Schroeder’s order is defensible. As Schroeder notes early in his opinion, the fact that North Carolina’s law is bad policy does not necessarily make it illegal or unconstitutional. And some of the arguments raised against the North Carolina law are legitimately quite weak.
At election law blog, Rick Hasen offers an analysis that is a realistic assessment of the legal realities even if we recognize how unjust those legal realities are. Like Milhiser, Hasen describes the ruling as “careful, well-reasoned and well written.”
Also, it is important to remember this ruling is restricted to whether or not to grant a temporary injunction. While it does give some discouraging observations about the issues in the case, it is not a final ruling. The fact that the court also rejected the defendants’ request to forgo a trial gives reason for hope. It’s still possible that the court will rule in the plaintiff’s favor, after the case is heard at trial.
However, there are some things the judge said that raise some red flags.
The fact that Schroeder dismissed evidence offered to prove the law was passed with a racist intent is important. He preferred to believe that his fellow Republicans were motivated primarily by partisanship. Hasen points to the reason this is a big deal.
But the big significance of a finding (at least preliminarily) of no intentional discrimination is that this means that DOJ will have a hard time getting North Carolina covered again under the preclearance provisions of the Voting Rights Act. Section 3 of the Act gives a court discretion to impose a preclearance regime on a jurisdiction found to have engaged in intentional discrimination in violation of the 14th or 15th amendments. Without such a finding, however, the state cannot be put back under preclearance.
According to Hasen, Schroeder’s ruling is also an indicator of how severely the Supreme Court weakened the Voting Rights Act, in its 2013 ruling.
If this ruling stands, it shows that Section 2 and the Constitution’s Equal Protection Clause are poor substitutes in protecting voting rights for Section 5 of the Voting Rights Act, which the Supreme Court gutted in its Shelby County opinion from last year.
Before that ruling, it was possible to compare voting conditions in pre-clearance states for minorities under an old law and a proposed new one. If a pre-clearance state was unable to show that the new law would not have an adverse effect on minority voters, it could not put that law into effect.
However, Schroeder said that Section 2 does not provide the same conditions and that effected his way of thinking on the question of reduced voting days. This means the court will not consider if cutting 10 voting days to seven violates Section 2. Rather, it will consider if 7 days will make it harder for minority voters to participate in the political process on the same footing as other voters. The court concluded there were still plenty of opportunities to vote especially during a midterm with an expected low turnout.
Given Schroeder’s conservative reading of the Voting Rights Act, the plaintiffs are facing an uphill battle, but they are going to keep fighting.
Chris Brook, legal director the ACLU North Carolina Legal Foundation was “heartened that the government’s efforts to avoid a full trial in this case were rejected.”
For now, Schroeder’s ruling means this law will be in effect for the 2014 election. He has tipped the balance of election fairness in favor of Republican candidates. Chief among them is the law’s author, Thom Tillis, who is trying to bring his special brand of toxicity to the U.S. Senate. You may recall, Tillis is of the view that African-Amerians and Hispanics are not part of North Carolina’s “traditional population.” If the law is ultimately struck down, there will not be a real remedy for eligible voters who were wrongfully disenfranchised.
It also means that North Carolinians who want their state to re-enter this century will have to work harder. Every voter needs to be prepared. It means double and triple checking to make sure you have acceptable voter ID. It means helping family, friends and neighbors be it by informing them about the ID they need, helping them gather the documents needed and helping them get through the bureaucratic madness that Republicans only hate when it effects them. It means making darn sure you go to the right voting place.
It means remembering to keep fighting because your vote matters and giving up only pleases a Republican.