Recent debates about the legal challenge of North Carolina’s 2013 election law highlight a particularly disturbing feature of present-day political discourse: Pundits and politicians frequently fail to acknowledge the important differences between a policy debate and a legal dispute.
This failure to grasp a key tenet of Civics 101 can skew commentators’ viewpoints.
During a recent radio panel discussion, the Charlotte-based host identified this analyst as representing the John Locke Foundation, “which favors the state’s elections laws.”
That’s not quite right. JLF takes no organization-wide stances for or against legislation, though Locke Foundation staffers generally support a photo identification requirement for voters — the most highly publicized piece of the 2013 election law.
There’s been much less internal discussion — and no official JLF pronouncement — about other elements of that law. That includes the end of same-day voter registration, out-of-precinct voting, and preregistration of 16- and 17-year-olds, along with a reduction in the number of days (but not hours) of early voting. Solid arguments can be made that those changes help ensure integrity of the state’s voting system. Appealing counterarguments emphasize the popularity of these nontraditional voting options.
The point is not to chide the radio host. He set up a fair discussion of an important topic. But correcting the record about JLF’s approach toward the 2013 election law involves more than just nitpicking. The correction strikes at the heart of a key misperception about the ongoing legal fight.
Whether the Locke Foundation or any individual staff member supports a portion or all of the election law is irrelevant to the current dispute. It’s not a matter of whether the law is good or bad (or even whether the law has any noticeable impact on voter turnout).
What matters in the legal dispute is the N.C. General Assembly’s authority to make law. As long as legislators conduct business consistent with their own rules and with federal and state constitutional mandates, they are free to make policy choices — good or bad.
The proper forum for debating the merits and demerits of a policy choice resides within the legislative branch. That’s where critics should set out the reasons for their opposition to policy proposals, argue in favor of their own alternative ideas, and accept the outcome of legislative debates.
Those who lose policy debates should come up with better arguments. Or they should work to elect more lawmakers who agree with them. (They also can work to persuade the governor to use his veto stamp. That constitutional safeguard can help thwart unpopular legislative policy choices that might threaten a chief executive’s chances for re-election.)
Once the debate shifts from the legislature and governor to the courts, though, a policy debate turns into a legal dispute. That’s where some observers lose their way.
As a legal matter, arguments for and against a voter ID policy prove irrelevant. The same goes for out-of-precinct voting, same-day registration, and the rest. Judges are not empowered to weigh good versus bad policy choices. Instead courts determine whether a policy choice aligns with limits on government power set out in the federal and state constitutions.
That’s why it was disturbing in September 2014 to hear N.C. resident and 4th U.S. Circuit Court of Appeals Judge James Wynn repeatedly question lawyers representing the state about the merits of the General Assembly’s policy choices.
“Explaining that he lives very close to a precinct that is not his assigned polling place, he asked the state to justify why his vote should be thrown out if he did not travel to a precinct that is further away from his home. At one point, his questions grew quite pointed — ‘Why does the state of North Carolina not want people to vote?’ Wynn asked. At another point, he described a hypothetical grandmother who has always voted at the same place. Why not ‘let her just vote in that precinct?’ he wondered.”
When even a judge assigned to review a legal dispute ignores the necessary distinction between policy choices and legal arguments, it’s no surprise that people further removed from the legal process often make the same mistake.
That’s not to say that North Carolina’s election law raised no legal issues. Critics raised those issues. A federal District Court considered the critics’ complaints and dismissed them in a 485-page decision upholding North Carolina’s law. Wynn and his Appeals Court colleagues disagreed, leaving North Carolina in its current state of election-law limbo.
When deciding who’s on the right side in this legal dispute, it’s important to remember that the issue is not “why can’t Grandma vote where she wants?” The issue is: Did the N.C. General Assembly’s policy choices align properly with state and federal constitutions?
The policy debate can wait for the legislature’s return to Raleigh in 2017.
Mitch Kokai is an associate editor of Carolina Journal.