Judicial Watch and Allied Educational Foundation File Supreme Court Brief In Support of North Carolina Election Integrity Law
FEBRUARY 05, 2015
(Washington, DC) – Judicial Watch announced today it joined with the Allied Educational Foundation (AEF) to file an amicus curiae brief with the Supreme Court of the United States in opposition to a lower court ruling preventing North Carolina’s implementation of its election integrity reform law. Judicial Watch and AEF argue that a panel of the U.S. Court of Appeals for the Fourth Circuit incorrectly placed “disproportionate impact” racial theory at the center of its analysis of Section 2 of the Voting Rights Act (VRA). The brief was filed with the assistance of Chris Coates.
The Obama Justice Department (DOJ), working with allied advocacy groups, is challenging North Carolina’s election integrity reforms that require voter ID, reduce early voting days, eliminate same-day voter registration, and require voters to vote where they are registered. The Obama Justice Department and allied advocacy groups have targeted voter ID and other election integrity laws, alleging, with no evidence, that the popular laws disparately and adversely affects minority voting rights.
Under the racial “disparate impact” theory, which is at the heart of the controversial Fourth Circuit opinion, a defendant can be held liable for discrimination for a policy that statistically disadvantages a minority group, even if that negative impact was neither foreseen nor intended. The more broadly accepted view by courts under Section 2 of the VRA says that a violation occurs only when voting practices are motivated by a discriminatory intent and that any incidental racially disparate impact of a voting law is not sufficient on its own to prove a violation of Section 2.
The JW/AEF brief also makes the point that the plaintiffs challenging the North Carolina law (with the support of the Justice Department) are reinterpreting federal voting rights law to subject every state in the Union to legal challenges, including enforcement actions from the DOJ, for virtually any change to their election laws:
[T]he Fourth Circuit’s ruling, if allowed to stand, will undermine voter confidence in the integrity of elections, enshrine a new race-based standard in Section 2 of the Voting Rights Act, and guarantee, as a practical matter, that no state will make changes to its electoral laws, whether to ensure electoral integrity or for any other reason, if those changes will in some way disproportionately affect minority voters. As this Court has explained, public confidence in the integrity of elections encourages citizen participation in the democratic process… Conversely, a lack of faith in electoral integrity undermines confidence in the system and discourages citizen participation in democracy.
JW/AEF had filed an amicus brief with the Fourth Circuit last year that highlighted how throwing out the North Carolina election integrity laws could cause many North Carolina citizens to have their votes diluted by unlawful ballots cast in the names of false or duplicate registrations. The brief also highlighted that the predictions of minority vote suppression were not borne out:
In May 2014, a primary election was held in North Carolina. It was the first election of any kind held pursuant to the provisions of HB 589. Notwithstanding 900 or so pages of plaintiffs’ expert reports forecasting that HB 589 would inflict numerous burdens on North Carolina’s voters, voter turnout actually increased in the May 2014 primary over the previous midterm primary in May 2010 – and, by every measure, black turnout increased faster than general turnout.
The brief before the Supreme Court confirms that minority turnout increased markedly in the November general election.
In a December 2014 piece in the Wall Street Journal, Judicial Watch’s Election Integrity Director Bob Popper, who served as the Deputy Chief of the Voting Section of the Civil Rights Division of the U.S. Justice Department from 2008-13, details important facts about minority turnout and the “voter ID” law in North Carolina:
Attorney General Eric Holder asserted that the state’s new laws would restrict “access and ease of voter participation” and “would shrink, rather than expand, access to the franchise …”
One [taxpayer-paid] expert in the Justice Department lawsuit claimed that more than 200,000 black voters, along with 700,000 white voters, would be “burdened” in an off-year election. Another expert concluded that particular provisions “will lower turnout overall” and “will have a disparate impact on African-American voters.”
Those predictions were not borne out. The 2014 elections were the first test of the impact of North Carolina’s new laws, including a “soft rollout” of its voter-ID requirement—under which poll workers asked voters if they had ID and if not, to acknowledge the new requirement in writing. Board of Elections data showed that the percentage of age-eligible, non-Hispanic black residents who turned out to vote in North Carolina rose to 41.1% in November 2014 from 38.5% in November 2010.
The percentage of black registrants voting increased to 42.2% from 40.3% in the same period, and the black share of votes cast increased to 21.4% from 20.1%. The absolute number of black voters increased 16%, to 628,004 from 539,646.
In 2013, both houses of the North Carolina legislature passed the Voter Information Verification Act (HB 589) popularly known as the “voter ID law.” overhauling the state’s election laws.
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. A former Holder spokesman, Matt Miller, said the next day that “[f]rom 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 (and former Assistant Attorney General for Civil Rights) Tom Perez, and President Obama. Those attending included representatives from the ACLU, the NAACP, as well as Rev. Al Sharpton. Sharpton subsequently told MSNBC that, based upon what he heard at the “unprecedented” meeting, he expected action regarding North Carolina “when this governor signs the bill.”
Two weeks later, two private lawsuits, from the NAACP and the League of Women voters were filed in U.S. District Court. On September 30, 2013, as per Al Sharpton’s assurance after his meeting at the Obama White House, the DOJ filed its complaint, asking the court to require federal pre-clearance before the state could enforce the HB 589 provisions.
A lower court had rejected the DOJ-led efforts to stop the law, leading to a review by the Fourth Circuit, which ruled against North Carolina just prior to the November 4, 2014, elections. North Carolina immediately asked the Supreme Court for a temporary stay of the Fourth Circuit’s ruling. The Supreme Court granted the stay, allowing North Carolina’s election integrity rules to be used for the November 4 election.
Now, North Carolina is asking the Supreme Court to review the Fourth Circuit’s ruling on the merits so it can be properly overturned.
Loretta Lynch, President Obama’s nominee for U.S. Attorney General, has made it clear she approves of lawsuits the DOJ has filed against states like North Carolina to block voter ID and other election reform efforts.
Separately, Judicial Watch exposed how the DOJ paid $70,000 to an expert to testify in the North Carolina litigation that black voters are “less sophisticated” than white voters. The DOJ expert, political scientist Charles Stewart, also alleged that black voters tended to be “less educated” and “less attuned to public affairs.”
“The Obama Justice Department’s assault on election integrity laws will undermine voter confidence in the system,” said Judicial Watch President Tom Fitton. “This case is typical of the Obama administration, which has ruthlessly and recklessly attempted to undermine clean elections by dividing the country along a manufactured racial divide. To be clear: voter integrity measures increase minority turnout. To play the race card in attacking clean elections is an insult to the large majority of Americans who simply want to ensure their votes aren’t cancelled out.”
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 several projects, including educational and health conferences domestically and abroad. AEF has frequently partnered with Judicial Watch to fight government corruption.
Judicial Watch senior attorney Chris Fedeli is lead counsel for JW/AEF. Joining Fedeli is Christopher Coates, former Chief of the Voting Rights Section of the Department of Justice under President Obama.