News: CJ Exclusives

Expert: N.C. Election Lawsuit Has National Implications

Former Justice Department lawyer expects eventual resolution from U.S. Supreme Court

The federal government’s lawsuit against North Carolina election laws could have “extraordinary ramifications for the United States,” an election law expert told a Tuesday meeting of the Campbell Law School Federalist Society.

“It’s about the Constitution,” said J. Christian Adams. “It’s about the system of government that was set up 200 years ago.”

Adams is a former attorney in the Voting Rights Section of the U.S. Department of Justice. He is the founder of the Election Law Center, and has published a number of articles in news and opinion journals about election law and the Department of Justice. He also has discussed election law issues on network news stations.

The case Adams discussed at Campbell is known commonly as NAACP v. McCrory. A number of other organizations joined the NAACP, including the U.S. Department of Justice. The trial was held in Winston-Salem before U.S. District Judge Thomas Schroeder earlier in the summer. A ruling could come at any time.

Adams said plaintiffs in the case essentially are taking the position that black voters are less sophisticated than white voters.

He said that experts who testified said, “blacks tend to be less sophisticated voters, don’t know as much about public affairs, and simply can’t navigate the voter registration process.”

“Now the voter registration process, of course, is extremely easy,” Adams said. “If you get a driver’s license … you get a free [identification] card. It’s almost hard not to register to vote.” He added that voter registration groups knock on his door and approach him on the street.

Adams said that the Voting Rights Act was passed in 1965 to combat actual obstructions that government officials erected preventing blacks from registering and voting. Those included registration offices closing their doors when blacks approached, requiring literacy tests, and even asking applicants irrelevant questions.

Among the questions asked included, “How many bubbles are in a bar of soap?” Adams said.

Even so, Adams said the Constitution still gives states powers to conduct their own elections.

“If states have control over their own elections, it’s less likely that you have tyranny,” Adams said. “The Founders were very familiar with the threats of centralized power. So when they set up the country, they said let’s devolve it down to the states.”

Adams said it was no accident that the Founders expected elected officials at the state level to set the rules for elections. “It’s designed to create more freedom,” he said.

He said that plaintiffs are using a different argument in the current lawsuit: They say that the changes statistically have a disproportionate effect on blacks.

“It’s not whether there are barriers to getting the ID,” Adams said. “The question is, what is the statistical difference between possession of a voter ID or use of various tools.”

Adams added that the plaintiffs’ complaints about the 2013 election law changes — the elimination of same day registration during early voting, shortening the early voting period from 17 days to 10 days, the elimination of out-of-precinct voting, and the requirement that voters produce a photo ID — statistically have shown no harm to black voters.

Adams noted that, compared with the previous midterm election in 2010, more blacks are registered to vote and early voting participation among blacks increased in 2014.

He said that if the courts adopted the plaintiffs’ statistical variance standard, then the Voting Rights Act effectively would become a partisan tool for Democrats.

Adams said he expects Schroeder to rule in favor of the state. He also expects the issue eventually to be settled by the U.S. Supreme Court.

He said if the case makes it to the Supreme Court, he expects at least five justices — Chief Justice John Roberts, and Justices Clarence Thomas, Antonin Scalia, Samuel Alito, and Anthony Kennedy to vote to uphold the law. Adams said that Justice Stephen Breyer could cast a sixth vote upholding the law.

Barry Smith (@Barry_Smith) is an associate editor of Carolina Journal.