Were America not riven by partisan discord and racial inequality, we could have a lot of stimulating conversations about how elections should be run. Should we do everything possible to make voting convenient—through early voting, absentee ballots, even online voting—or see voting as a civic ritual exercised by everyone, in person, at once? Are minor inconveniences, such as the need to register to vote ahead of time, actually a plus because they limit participation to those who actually care? Should we scrupulously ensure that all voters are who they say they are, even at the risk of discouraging some, to prevent fraud—a problem that is rare, but that does happen in various ways and can sway close elections?
That is not the America we live in. In reality, both parties will happily change voting laws merely to benefit themselves, and different voting patterns between rich and poor and black and white help them do it. A new appeals-court decision striking down a North Carolina voter-ID law, and the district-court ruling it overrides, nicely illustrate how politicians have turned minority voters into pawns in unseemly schemes. And they are part of a nationwide legal battle over how much leeway states have in setting their election rules.
Here’s the backstory. Until 2011, Democrats fully controlled the North Carolina government. Naturally, they did everything in their power to help Democrats vote. Primarily, this meant a series of measures, starting around the turn of the century, that black voters disproportionately benefited from. For example, one allowed people to vote early without so much as stating a reason they needed to do so—Sunday voting in particular being an efficient way for black churches to turn out their members. Democrats even enacted one law that was retroactive, ensuring Democratic victories in several disputed 2004 elections.
In 2013, Republicans finally got to take their crack at the state’s election laws. Before that year’s Supreme Court decision in Shelby County v. Holder, the Obama Justice Department would have had to “preclear” the changes under the Voting Rights Act, owing to the federally recognized history of racism in certain North Carolina counties. But once that federal decision eliminated the preclearance requirement, North Carolina’s Republican legislators pulled all their best ideas into a single bill and pushed forward.
Many of the provisions simply rolled back the Democrats’ recent changes. Another required voters to show photo IDs starting in March of 2016. Various parties including the NAACP sued, claiming some of the new rules were discriminatory.
There are signs that Republicans engaged in some disturbing calculations when they decided how to proceed. As the appeals court put it (citations removed):
[Data that legislators had requested] revealed that African Americans disproportionately used early voting, same-day registration, and out-of-precinct voting, and disproportionately lacked DMV-issued ID. Not only that, it also revealed that African Americans did not disproportionately use absentee voting; whites did. [The law] drastically restricted all of these other forms of access to the franchise, but exempted absentee voting from the photo ID requirement. In sum, relying on this racial data, the General Assembly enacted legislation restricting all—and only—practices disproportionately used by African Americans.
It should surprise absolutely no one that when politicians change voting laws, they are aware of how the changes will affect the partisan balance. The long history of gerrymandering is instructive here, as is the fact that some dimwitted Republicans have admitted such intentions out loud in regards to purported anti-fraud efforts.
What’s not clear, though, is that North Carolina Republicans did anything other than the reverse of what the Democrats had done, enacting laws not according to a vision of how elections should work but according to what would benefit their own party while remaining defensible on other grounds. As Hans A. von Spakovsky of the Heritage Foundation has noted, the liberal view of “voting rights” amounts to a sort of ratchet, where it’s okay for Democrats to change election laws but illegal for Republicans to change them back, even if no one ever said the previous laws were discriminatory, and even if those laws still exist in other states without protest.
Von Spakovsky intended the ratchet metaphor as a criticism of liberals’ thinking, I’m pretty sure, but the appeals court proudly spelled out the same concept, reframing the conveniences enacted by North Carolina Democrats as “African American access to the franchise”:
When a legislature dominated by one party has dismantled barriers to African American access to the franchise, even if done to gain votes, “politics as usual” does not allow a legislature dominated by the other party to re-erect those barriers.
Amazingly, even attempts to lessen racial inequities are apparently illegal when those inequities favor blacks instead of whites. The state testified that early voting, for example, had fallen victim to “political gamesmanship,” as evidenced by the fact that counties offering Sunday voting were “disproportionately black” and “disproportionately Democratic.” The appeals court found that this “comes as close to a smoking gun as we are likely to see in modern times,” because “the State’s very justification for a challenged statute hinges explicitly on race—specifically its concern that African Americans, who had overwhelmingly voted for Democrats, had too much access to the franchise.”
If there’s a silver lining here, it’s that the stakes are lower than you might think. Democrats may take a cavalier attitude toward voter fraud, but it does seem to be relatively rare. In-person fraud, the kind that voter ID is most likely to prevent, may be especially so, though it’s hard to say for sure. (In-person fraud is rarely discovered, but it’s easy enough to do, and it’s at least troubling that so many dead people are registered to vote. Sometimes the dead even show up to cast their ballots, apparently, though this could be clerical error instead of fraud.)
Republicans may target Democratic voters, meanwhile, but they wouldn’t dare impose serious obstacles to voting (yet). North Carolina’s supposedly strict law, for instance, still “provides registration all year long up to twenty-five days before an election, absentee voting for up to sixty days before an election, ten days of early voting at extended hours convenient for workers that includes one Sunday and two Saturdays, and Election Day voting,” as the district court noted.
As for IDs, they were made available for free to anyone who didn’t already have one. In the elections before IDs were required, all voters were told about the impending change, and those without IDs were provided instructions for getting free ones. There was also a broader media campaign to educate the public. (A 2015 update to the law, though passed in response to the court challenge, was even more generous, allowing those without IDs to cast provisional ballots so long as they signed an affidavit stating they faced an impediment to getting one.)
In the end, as the district court also noted, black turnout increased more than white turnout between 2010 and 2014, when many of the provisions (though not the ID requirement) were in effect. More academic analyses are somewhat mixed as to whether voter-ID laws measurably reduce turnout. A good guess seems to be that the stricter laws reduce turnout by 2 percent and nudge the popular vote a little toward the Republicans. Perhaps We the People aren’t as easily discouraged as we seem.
At any rate, the court fights aren’t over; North Carolina plans to appeal, and other states are in similar circumstances. Texas, for instance, is working with a federal judge to weaken its voting law. Various other challenges are unfolding in Wisconsin, Virginia, Kansas, Ohio, and North Dakota.
A roll of the eyes, rather than cheerleading for one side or the other, may be the appropriate response for onlookers.
Robert VerBruggen is managing editor of The American Conservative.