Judicial Watch • Study: North Carolina Minority Vote Turnout Increased After Stronger Election Integrity Measures Implemented

Study: North Carolina Minority Vote Turnout Increased After Stronger Election Integrity Measures Implemented

Study: North Carolina Minority Vote Turnout Increased After Stronger Election Integrity Measures Implemented

JUNE 30, 2014

Obama DOJ claimed NC Election Integrity Law would suppress black vote; turnout higher in only major election since passage of bill

Amici Curiae Brief by Judicial Watch, Allied Educational Foundation and North Carolina Activist Christina Kelley Gallegos-Merrill Alerts Federal Court to Key Finding

(Washington, DC) – Judicial Watch announced today that on June 18, 2014, it joined with the Allied Educational Foundation (AEF) and Christina Kelley Gallegos-Merrill in filing an amici curiae brief with the United States District Court for the Middle District of North Carolina arguing that, contrary to dire predictions by the Obama Department of Justice (DOJ), minority voter turnout has actually increased since the passage of North Carolina’s election integrity bill, HB 589 (United States of America v. State of North Carolina et. al(No.1:13-cv-00861)).

The amici brief opposes the attempt by the DOJ to get a preliminary injunction against key portions of HB 589. The hearing in the case is scheduled to begin on July 7, 2014. Judicial Watch, represented by former Chief of the Voting Rights Section of the DOJ Chris Coates, has been granted 10 minutes to present its oral arguments in the case.

The North Carolina legislature passed HB 589 in July 2013, and Governor Pat McCrory signed it into law in August, calling it “an overwhelmingly popular common-sense law.” The law requires a photo ID to cast a vote, eliminates same-day registration, reduces the number of days of early voting, and requires provisional ballots to be cast in the precinct in which the voter is registered. The DOJ has moved to enjoin the latter three provisions under Section 2 of the Voting Rights Act (VRA), predicting that they would largely disenfranchise up to two million North Carolina voters.

In their amici brief, Judicial Watch and AEF argue that the opposite is true, comparing the results of a May 4, 2010, primary election with those of a May 14, 2014, primary election, the first major election to be held in North Carolina since the passage of HB 589. The turnout numbers are “devastating to the plaintiff’s case because they contradict all of their experts’ basis for asserting harm”:

The results of this analysis … show that black turnout increased in 2014 by every meaningful measure. Black share of the total electorate increased. The percentage of black registered voters voting increased. Using Census Bureau estimates, Dr. Camarota [the Director of Research for the Center for Immigration Studies] found an increase in turnout among blacks of voting age. Finally, while turnout increased across the board in May 2014, and while white turnout increased by 13.7%, black turnout increased much faster – by an astonishing 29.5%.

The amici brief also notes:

1. The Increase in Black Turnout in the Recent Primary Elections Compared

to the Last Such Elections Shows That Injunctive Relief is Not Warranted.

On May 6, 2014, thirteen days before the filing of the instant motion for a preliminary injunction, the State of North Carolina held primary elections for federal and state offices, including statewide primaries for the office of U.S. Senator. The North Carolina State Board of Elections (NCSBE) posted turnout data for these elections on its website soon after the elections, which data subsequently was updated. It also posted turnout data for the last off-year primary held in May 2010.

This data was analyzed by Dr. Steven A. Camarota, an expert retained by amici. He confirms that the “May 4, 2010 election makes for a good comparison with the May 6, 2014 election because both were primary elections held in May of a non-presidential year.” He describes the result as a “natural experiment,” because the “May 6, 2014 election is the first and only election to occur” after HB 589 repealed same-day registration and out-of-precinct ballots and restricted early voting.

The results of this analysis – which may be reproduced using the publicly available data files – show that black turnout increased in 2014 by every meaningful measure. Black share of the total electorate increased. The percentage of black registered voters voting increased. Using Census Bureau estimates,

Dr. Camarota found an increase in turnout among blacks of voting age. Finally, while turnout increased across the board in May 2014, and while white turnout increased by 13.7%, black turnout increased much faster – by an astonishing 29.5%. Dr. Camarota concludes that “a comparison of the May 2010 primary and the May 2014 primary indicates that the new law will not negatively impact black participation in the election process in North Carolina.”

These results are devastating to Plaintiffs’ case, because they contradict all of their experts’ bases for asserting harm. Instead of a real-world test of the effects of HB 589, Plaintiffs have relied on elaborate analyses of its probable effects; and their experts have not been shy about predicting dramatic and dire consequences. As just one example, Dr. Charles Stewart opined that 915,426 North Carolina voters (204,959 black and 710,467 white) would have been “burdened” in the off-year elections of 2010 by the changes HB 589 makes to same-day registration, early voting, and out-of-precinct voting. He calculates that close to 2 million North Carolina voters (769,492 black and 1,172,119 white) would have been “burdened” by those changes in 2012.

Given such testimony, we might expect turnout not just to decline following the implementation of HB 589, but to crash. On May 6, 2014, however, both total turnout and black turnout significantly increased. This outcome is not merely another piece of evidence for the Court to consider. Rather, it fundamentally undermines Plaintiffs’ entire case by showing that all of the various models, hypotheses, correlations, and conjectures presented in almost 900 pages of expert reports are unreliable, because they predicted the opposite of what happened.

These facts also doom Plaintiffs’ request for an injunction. Plaintiffs are unlikely to succeed on the merits of a claim asserting either discriminatory effect or intent if the challenged provisions of HB 589 do not, in fact, cause any discernible disadvantage to minority voters. Far from suffering irreparable harm, both black and white voters will, as the recent primary elections indicate, simply adapt to the new rules and continue to turn out to vote. Finally, in the absence of any such harm, no consideration based on a balance of the equities or on the public interest will weigh in favor of preliminary relief.  Because the only real-world test that we have belies the Plaintiffs’ predictions of harm resulting from HB 589, their request for an injunction should be denied.

2. Plaintiffs Misapprehend the Nature of an Injury Necessary to Establish a

Section 2 “Results” Claim.

If the Court holds, as Plaintiffs request, that the slight inconveniences imposed by HB 589 (like voting within a ten- rather than a seventeen-day period) give rise to a Section 2 ‘results’ claim, then there is no practical or principled limit to the reach of the statute. It is probable that most electoral laws affect different races to different extents. What has been required by Section 2 to date is the additional showing that any disparate impact is causally connected to the denial of an equal opportunity to participate in elections and to elect representatives of choice. Plaintiffs’ approach would do away with this requirement. Ultimately, the effect of Plaintiffs’ approach to Section 2 ‘results’ claims is to elevate the electoral preferences of minority voters to unassailable rights.

3. The North Carolina General Assembly had a Substantial Interest in

Passing HB 589.

In the legislative history of HB 589, its proponents claimed that preventing voter fraud and promoting public confidence in elections … justified the enactment of the challenged election procedures. Plaintiffs now ask this Court to scrutinize the public policy reasons given by members of the General Assembly for HB 589, and to do so without acknowledging that the Supreme Court has recognized the importance and legitimacy of these very interests … To allow this type of attack would be to allow an undue encroachment upon the legislative branch’s prerogative to make the laws for the Tar Heel State.

The Obama Justice Department attack on HB 589 was not unexpected. On the day the bill passed, Attorney General Eric Holder in a speech to the National Urban League concerning the Supreme Court’s decision in Shelby Co. v. Holder said that a DOJ voting rights lawsuit against Texas “is the Department’s first action to protect voting rights following the Shelby County decision, but it will not be our last.” This statement was widely seen as a reference to a potential lawsuit against North Carolina over its photo ID law. Former Holder spokesman Matt Miller said the next day: “From everything I’ve read, the writing’s on the wall that the North Carolina law is going to draw a DOJ challenge.”

On July 29, 2013, a group of political activists attended a meeting at the White House with Attorney General Holder, Labor Secretary (formerly Assistant Attorney General for the Civil Rights Division) Tom Perez, and President Obama. Those attending included representatives from the ACLU, the NAACP, and Rev. Al Sharpton. Sharpton subsequently told MSNBCthat, based upon what he heard at the “unprecedented” meeting, he expected action regarding North Carolina “when this governor signs the bill.”

“The recent election in North Carolina shows that the Obama administration is engaged in a race-baiting canard when it suggests that voting integrity measures suppress minority votes,” said Judicial Watch President Tom Fitton. “HB 589 aligns North Carolina with the majority of states (37) that do not allow a person to register and vote on the same day. It is high time that the Obama administration comes into line with the majority of the American people who want to strengthen rather than weaken ballot box integrity.”

The Allied Educational Foundation is a charitable and educational foundation dedicated to improving the quality of life through education. In furtherance of that goal, the Foundation has engaged in a number of projects which include, but are not limited to, educational and health conferences domestically and abroad. AEF has frequently partnered with Judicial Watch to fight government and judicial corruption.

Christina Kelley Gallegos-Merrill ran for County Commissioner of Buncombe County in 2012 and lost a very close election. She alleges that this loss was due to same-day registration during early voting and to improperly cast ballots.

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