After a costly legal battle that has ricocheted all the way up to the Supreme Court, North Carolina may end up in court yet again over GOP officials’ ongoing efforts to restrict access to the ballot box — particularly for minority voters.
The latest round of brass knuckles politics and legal maneuvering comes in the midst of a larger battle over a regimen of voting restrictions considered to be among the harshest in the nation. The Supreme Court weighed in Wednesday, refusing to allow those restrictions to take effect before the November elections. But even as the Supreme Court was issuing its order, a hard-fought skirmish over early voting is underway across the state.
Dozens of GOP-controlled county election boards are currently trying to limit early voting, and the state election board is poised to wade into what could be a lengthy county-by-county fight over how much early voting should be allowed. All of this comes after a federal appeals court already ruled that cutbacks in early voting and other voting restrictions were intentionally discriminatory against African American voters.
It’s a complicated interplay of politics, legal wrangling, and bureaucratic processes — but the impact on the November election and on voting rights law generally is potentially significant.
Here’s how it breaks down.
In late July, a panel of judges on the 4th U.S. Circuit Court of Appeals issued a monumental ruling striking down five provisions in North Carolina’s 2013 voter law. They said the restrictions were “with almost surgical precision” targeted at the voting practices of African Americans. Among the 2013 provisions invalidated was the state’s reduction of early voting days from 17 days to 10. With the additional week restored, county boards of elections were told to reconvene and hash out a plan for the new week of early voting.
But the court, in knocking down the early voting provision, also struck down an amendment to the 2013 law that required counties to have the same number of early voting hours as the previous analogous election. It was there that some GOP election officials found a loophole to create some trouble: They could pass plans that severely limit the number of available hours for early voting in that extra week. Additionally, some proposed plans restricted Sunday voting, which are popular among African American voters who participate in “soul to poll” church drives. In some counties, election officials also suggested setting up only one election site for the extra week of voting.
The county boards are each made up of three members, and, because North Carolina’s governor is Republican, each board has two Republicans and one Democrat.
The actions of some election officials, it appeared, were in line with the directions of Dallas Woodhouse, the North Carolina Republican Party’s executive director. After the appeals court decision, Woodhouse sent out a memo urging Republican county board members to restrict the hours of early voting to only what was required, while calling for the elimination of polling places on colleges campuses and for limits for Sunday voting.
But not everyone heeded his advice. A majority of the 100 county boards passed early voting plans without controversy that received unanimous board support.
But about of a third of the 100 counties have plans that were not passed unanimously and thus require the State Board of Elections to resolve the dispute.
Among the most contentious plans was the one passed for Lenoir County, where the Republican board members proposed cutting early voting hours by three-quarters compared to the 2012 elections, and limiting early voting to just one voting site for the entire 403-square-mile county.
“They were completely, nakedly, in a partisan way trying to restrict early voting as much as possible,” said Allison Riggs, a senior attorney a Southern Coalition for Social Justice, which was among the civil rights groups challenging the original state law.
Riggs and other voting rights advocates have kept a close watch on each county’s reaction to the ruling. They have not have not been shy about their willingness to drag the state back into the courtroom if it continues to, in their eyes, undermine what a panel of federal appellate judges has already told them to do.
The next step is for State Board of Elections to resolve the disputes over the 30 or so county plans that did not have unanimous support. The State Board of Elections is made up of five political appointees of Gov. Pat McCrory.
“A lot of the legal options that will follow will really turn on what the State Board does,” said Riggs told TPM. But, she said, the State Board is “on notice that litigation may ensue” if it doesn’t act to curb county plans that excessively limit early voting, which is used disproportionately by minority voters.
Riggs said the issues in the county plans range from “outrageous” to “problematic” to “middle ground.”
“Sunday voting continues to be a crux of dispute here in North Carolina,” she said.
While the appeals court decision pointed specifically to the cuts to Sunday voting as signs of a discriminatory intent, Woodhouse and other GOP officials have argued against it. They say poll workers should not have to work on Sundays and Woodhouse pointed to “respect for voter’s religious preferences” to justify cutting Sunday voting.
To make the state of play even more complicated, the election boards in two of the 34 counties whose plans are in question never even took a vote and it’s unclear whether the state board has jurisdiction to implement a new plan. If not, the early voting protocols would default to early voting during only weekday business houses along with one Saturday morning, and offered solely at the county elections office.
“Which, in these two counties, Watauga and Cumberland, that would catastrophic,” Riggs said. Watauga is home to Appalachian State University, while Cumberland includes a military base and Fayetteville, one of North Carolina’s largest cities. Overall, 56 percent of North Carolina voters used early voting in 2012.
The State Board will hold hearings next Thursday on each of disputed county plans.
“I think the State Board of Elections is unrealistic right now in thinking that they’re going to get 34 of these heard in one day. I’ve seen three of them take two hours,” Riggs said.
Joshua Lawson, the general counsel for the State Board of Elections confirmed the scheduled hearing for the 34 county plans, including for the two counties where part of the discussion will be whether the state has jurisdiction. Asked about the concerns raised about the lack of early voting opportunities in some counties, Lawson said the state board will make a “data based decision” regarding each dispute.
“Our determination at this level will be principally based on data, so we have various resources the county boards don’t have,” Lawson told TPM, pointing to data on considerations like drive times to poll sites and early voting participation rates by demographic.
“You end up, historically, seeing different behavior from the State Board than the county boards,” Lawson said. “Our State Board considers things a little bit more broadly.”
Riggs said she had “a fair amount of confidence” that the State Board of Elections would “dial back some of these abjectly crazy” plans.
“I don’t think anyone with half a brain wants North Carolina to be the new Florida and that’s very likely what would happen if they let all of this go unchecked,” Riggs said. “What they do on more of these middle ground ones is more unclear to me.”