Hard Fight Seen for DOJ Against N.C. Voting Restrictions
However, Yeomans does not think opening a North Carolina front would stretch the Civil Rights Division attorneys too thin. If they can prove intentional discrimination, then the strategy could provide an effective replacement for the disfavored preclearance regime, he said.
Michael Carvin, a Jones Day partner who has fought against the Justice Department in voter law battles, categorized the North Carolina lawsuit lacks merit. “I think this is all about politics and Eric Holder’s ideology,” he said.
He noted that the Supreme Court ruled voter ID constitutional in Indiana in Crawford v. Marion County Election Board in 2008. And as far as reducing early voting time, when the Voting Rights Act was last amended in 1982, no state had early voting in place.
Holder indicated that the Justice Department would attempt to rebut any argument that the intent of the laws was to stop voter fraud, and to show they are restrictive and “at minimum, partisan.”
“It’s hard to see how cutting back on early voting hours has anything to do with voter fraud,” Holder said to the press. “I see other parts of this bill that deal with registering 16- and 17-year-olds so that they ultimately become eligible at the age of 18, I’m not sure what that has to do with voter fraud.”
He argued that, once early voting hours have been extended and used, as 70 percent of African Americans voting in North Carolina did, “to restrict that, to cut it back, is inconsistent with the Voting Rights Act.”
Election law scholar Richard Hasen of the University of California Irvine School of Law said that Holder might find support for that argument in a surprising and controversial ruling by the U.S. Court of Appeals for the Sixth Circuit rejecting an Ohio plan to restrict early voting for everyone but members of the military. However, it won’t be easy.
Hasen said many of the Justice Department’s tools are unlikely to work in North Carolina. Some of the provisions may fall, but successful Section 2 challenges have been in redistricting cases, and there hasn’t been successful Section 2 challenge to voter ID laws, he said.
North Carolina might be able to argue, as Texas has, that the laws intended to discriminate against Democrats and not minorities. At least in Texas, the Justice Department has a judicial finding of racial discrimination in a redistricting case.
“It’s not clear that they’re going to be able to make enough of a showing of intentional racial discrimination in North Carolina to get the bail in,” Hasen said.