News: CJ Exclusives

McCrory Calls Federal Election Lawsuit ‘In The Fringes’

Holder's challenge would require entire state to get federal approval for any voting change

Gov. Pat McCrory on Monday struck back at the federal government, saying the U.S. Department of Justice was “working in the fringes.” McCrory, a Republican, said the state would defend the lawsuit filed by the Democratic administration of President Barack Obama against the state’s new election laws vigorously.

“I believe that North Carolina is in the mainstream on this issue and it’s the Justice Department that’s working in the fringes,” McCrory said during a press briefing in Raleigh. McCrory made a statement and took no questions. The state has hired private legal representation to defend the lawsuit.

The U.S. Justice Department and Attorney General Eric Holder filed the lawsuit, claiming that the state’s new voter identification requirements and election law changes discriminate against blacks.

In particular, the lawsuit lashes out at the N.C. General Assembly for reducing the number of early voting days, eliminating same-day voter registration during early voting, discontinuing the counting of provisional ballots of people who vote at the wrong precinct, and establishing a photo ID requirement for voting.

“The clear and intended effects of these changes would detract the electorate and result in unequal access to participation in the political process on account of race,” Holder said during a noon news conference. “This new law would shrink, rather than expand, access to the franchise.”

He said the new law would “disproportionately exclude minority voters.”

The lawsuit seeks to have parts of the new voting law — including the photo ID, the elimination of same-day voter registration, the shortening of early voting, and the voting in the wrong precinct changes — declared violations of the Voting Rights Act and the 14th and 15th amendments to the U.S. Constitution. It also seeks to prevent state officials from enforcing the new laws, while authorizing federal observers to monitor elections in North Carolina.

The suit also requests federal courts to require preclearance from the Justice Department before any changes to election law can take place anywhere in North Carolina. That’s what Holder referred to as the “bail-in” provision of the Voting Rights Act, under which a court can order the state to win the approval of the Justice Department for a specified period of time.

Previously, only 40 North Carolina counties fell under preclearance requirements.

Hans von Spakovsky, senior legal fellow at the Heritage Foundation, said he doubts Holder will succeed in the bail-in provision. Von Spakovsky said that the federal government would have to prove that the state has been recalcitrant in its response to court actions.

“There is absolutely no evidence whatsoever that North Carolina has tried to evade court decrees or continued to act in a discriminating manner when it’s lost a lawsuit,” von Spakovsky said. “I think they’re going for a ‘Hail Mary’ pass here.”

Von Spakovsky also said that the outcome of the lawsuit would come down to how well North Carolina litigates and defends it.

“All of these claims I think are a little nutty,” von Spakovsky said. He said that black voter turnout has gone up all over the country in recent years, not just in early voting states. Von Spakovsky was a member of the Federal Elections Commission and a Justice Department official during the administration of President George W. Bush.

As for voter ID, von Spakovsky said that North Carolina’s law is similar to Georgia’s law, which has passed Justice Department preclearance and court challenges.

Jeanette Doran, executive director of the N.C. Institute for Constitutional Law, said the voter ID law was put together after lawmakers solicited opinions from across the political spectrum. “They were very careful to make sure they were not going through this haphazardly,” Doran said.

N.C. Democratic Party Chairman Randy Voller welcomed the Justice Department’s intervention.

“This fight is about fairness and equal access to our country’s most fundamental freedom,” Voller said in a statement. U.S. Sen. Kay Hagan, 1st District U.S. Rep. G.K. “Butterfield, and other Democratic leaders have been on the forefront protecting the right to vote,” Voller said. “It’s time for Republicans to stop playing partisan tricks and stop putting up unnecessary roadblocks to vote in North Carolina.”

State House Speaker Thom Tillis, R-Mecklenburg, and Senate President Pro Tem Phil Berger, R-Rockingham, issued a joint statement blasting the Justice Department’s lawsuit.

“The Obama Justice Department’s baseless claims about North Carolina’s election reform law are nothing more than an obvious attempt to quash the will of the voters and hinder a hugely popular voter ID requirement,” Tillis and Berger said. “The law was designed to improve consistency, clarity, and uniformity at the polls, and it brings North Carolina’s election system in line with a majority of other states. We are confident it protects the right of all voters, as required by the U.S. and North Carolina Constitutions.”

McCrory’s office named Karl “Butch” Bowers of Columbia, S.C., a Bush administration Justice Department official, as his lead counsel for the state’s defense. Tillis and Berger also said the General Assembly would hire private counsel, but they have not identified the attorneys.

Holder said the lawsuit was intended to protect democracy.

“I stand here to announce this lawsuit more in sorrow than in anger,” Holder said. “It pains me to see the voting rights of my fellow citizens negatively impacted by actions predicated on a rationale that this is tenuous at best — and on concerns that we all know are not, in fact, real.”

McCrory said at his press briefing that the state’s election law changes are not out-of-step with the rest of the nation. He opened the event by referencing a video of President Obama last year at an early-voting site.

“I recently saw a video of President Obama voting in Chicago,” McCrory said. “One of the first things he did was show a photo ID.”

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