From today’s The Hill Online:
Last Friday a divided, three-judge panel of the North Carolina Superior Court handed a small victory to groups determined to protect voting rights. These rights are being eroded by state laws under the deceptive label of protecting “election integrity.” The court struck down North Carolina’s voter identification law because it had a disproportionate impact on minority groups and would make it harder for Black people to vote.
In so doing, it offered an example of the important role state courts can play in an era when conservatives dominate the federal judiciary. More important, it offered a model of anti-racist jurisprudence.
The court’s decision resurrected an older and often demeaned theory of discrimination and gave the lie to the United State Supreme Court’s recently expressed view that voter identification requirements are nothing more than “mere inconveniences” inevitably associated with any voting scheme.
It echoed Justice Elena Kagan’s argument that “racial discrimination and racially polarized voting are not ancient history. Indeed, the problem of voting discrimination has become worse …Weaken the Voting Rights Act, and predictable consequences follow: yet a further generation of voter suppression laws.”
The North Carolina voter identification law proves the accuracy of Kagan’s prediction: The weakening of the Voting Rights Act has allowed voter suppression laws to flourish.
Indeed, the Supreme Court has provided what The New Republic’s Matt Ford calls “a blank check for Republican state lawmakers: So long as they invoke voter fraud and don’t say anything too egregious, the Supreme Court will have their back.”
Moreover, the court has erected procedural and evidentiary hurdles that make it harder to challenge those Republican efforts.
As law professor Jamelia Morgan explains, federal court voting rights decisions have demonstrated “increasing reluctance to accept circumstantial evidence of discriminatory intent. Stated differently, these courts have declined to draw the inference that the challenged electoral policy or practice, when combined with historical and social factors, deprive minority individuals of the right to vote on account of race, and in some cases have required an evidentiary showing amounting to express discriminatory intent.”
Fortunately, the North Carolina court took a different path, insisting that what it called a “sensitive inquiry into such circumstantial and direct evidence of intent” is precisely what is required in the highly charged area of voting rights.
Read the complete story here.