Smoking Gun Memo Could Bolster Voting Rights Case Against North Carolina

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North Carolina’s Republican Party has had an interesting response to a recent appeals court ruling that said a number of voting restrictions passed by the state’s GOP legislature were enacted with the intent to discriminate against minorities, specifically African Americans. In their scramble after the ruling, party operatives and local Republican officials have perhaps inadvertently provided more evidence that the restrictions were passed with the intent to discriminate.

The most egregious example was a memo sent by North Carolina Republican Party executive director Dallas Woodhouse to county election officials urging them to continue to push for reductions in voting access, in which he explicitly spelled out a partisan motivation.

The memo came as the state is asking the Supreme Court to reverse the appeal court ruling, and restore for November’s election some of the restrictions the appeals court struck down. And it may provide additional fodder for the voting rights advocates fighting the state’s restrictions.

“It was stunning and stupid,” Daniel Tokaji, an elections law professor at Ohio State University. “Stunning that somebody would be so brazen about his and the party’s objective, and stupid in the sense it really seems to me to undercut their arguments to get the Supreme Court review that the lawyers had made.”

The state — now represented by the high-powered Supreme Court advocate Paul Clement, a former solicitor general in the George W. Bush administration — is currently asking Chief Justice John Roberts to allow it to implement some of the restrictions struck down by the 4th U.S. Circuit Court of Appeals last month. Among other things, North Carolina wants a reversal on the early voting provision — where the appeals court had invalidated a law that cut back early voting from 17 days to 10.

“If I was their lawyer, I would be absolutely furious,” Tokaji said, of the Woodhouse memo.

In the memo, Woodhouse pushed for the reduction of voting hours, the removal of college campus polling sites and the elimination of Sunday voting.

“Republican Board members should feel empowered to make legal changes to early voting plans, that are supported by Republicans,” he wrote. “Republicans can and should make party line changes to early voting.”

He directed it to Republicans on county election boards, who are currently working out the voting schedules for the extra week of voting put back in place by the appeals court.

“They are arguing that they can comply with the law by just having early voting available for just 17 days but only at county board of elections during business hours,” said Chris Brook, the legal director of the ACLU of North Carolina who is on the challengers’ team of lawyers. “From a practical standpoint that is insane.”

More than half the state is expected to use in-person early voting this election, according to a directive the state Board of Elections itself sent out to the counties after the appeals court decision.

Yet, a handful of county officials are doing anything to make early voting — which is used disproportionately by African Americans — as inaccessible as possible. Mecklenburg County’s GOP elections board chair Mary Potter Summa said she was “not a fan of early voting” before slashing more than 200 hours from the schedule. Watauga County officials blocked an election site at Appalachian State University and will have only one office for early voting. Dallas Woodhouse’s own cousin, Eddie Woodhouse, tried unsuccessfully to eliminate Sunday voting and remove a site from N.C. State’s campus.

“Many of the jurisdictions feel that they are on the receiving end of a liberal decision that will help Democrats in elections. They are going to do whatever they can to re-enact the laws within the bounds that the court has allowed,” said Nate Persily, an election law professor at Stanford University. “Their resistance is expected, given that they are afraid that the court’s decision will accelerate a Democratic tide in the presidential election.”

But their efforts, coupled with Woodhouse’s memo, may inadvertently make it easier for the the restrictions’ legal opponents to prove their point to the Supreme Court.

“In the Supreme Court, there’s usually no introduction of material not in the record of the court below. The Supreme Court generally cannot engage in fact finding,” Rick Hasen, a professor at UC-Irvine School of Law who runs the Election Law blog, said in an email to TPM. “Nonetheless, it would not surprise me for some of the plaintiffs to cite news reports on this to make the claim that this is further evidence of discriminatory intent and that the Fourth Circuit got it right. And the Justices (or their clerks) are no doubt aware of this in any case.”

According to Persily, North Carolina’s monkeying with county protocols could invite not just a stay denial, but also a written explanation that backs up the 4th Circuit’s findings.

“The critical question is whether the court, whether five members of the court, think it’s important to send a signal to the lower courts and to the jurisdictions on the run up in this election,” Persily said.

Clement did not respond to TPM’s inquiry. But Woodhouse has defended his memo in a statement that said, “ Republicans will keep fighting for our positions to preserve the integrity of the voting process so everyone’s vote is properly counted, and any other positions we deem fit— because the Democrats haven’t made it a crime to be Republican— YET.”

When asked by TPM about its potential impact on the litigation, he wrote in an email, “[R]epublicans have the same right to advocate that voting sites be put in certain places, what hours they are open, and the fairness of the procedures.”

“The 4th [C]ircuit ruled that the law we passed should not go forward. They did not rule that we [R]epublicans are prevented from advocating our own cause,” he added. “The left wants people with no ID, to vote whenever and however they want, and [R]epublicans to be silent about it or they call us names. They won’t stop us from advocating for fair, safe and secure voting.”

Corrected: A previous version of this story misspelled the surname of Chris Brook.

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