in the united states district court for the...
TRANSCRIPT
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
UNITED STATES OF AMERICA,
Plaintiffs,
v. THE STATE OF NORTH CAROLINA; THE NORTH CAROLINA STATE BOARD OF ELECTIONS; and KIM W. STRACH, in her official capacity as Executive Director of the North Carolina State Board of Elections,
Defendants.
))))))))))) ) ) ) )
DECLARATION OF STEVEN F. LAWSON, Ph.D. Case No.: 1:13-CV-861
Pursuant to 20 U.S.C. § 1746, I, Steven F. Lawson, make the following declaration:
1. My name is Dr. Steven F. Lawson. I am a Professor Emeritus at Rutgers University,
where I taught from 1999 to 2009. I received my B.A. in History from the City College of New
York (1966) and my M.A. (1967) and Ph.D. (1974) in American History from Columbia
University.
2. From 1972 to 1992, I taught at the University of South Florida and was chair of the
History Department from 1983-1986. From 1992-1998, I served as Head of the History
Department at the University of North Carolina-Greensboro.
3. I am a specialist in twentieth-century American History, and have written extensively on
the civil rights movement and black politics, particularly in the period since World War Two. I
published two award-winning books, Black Ballots: Voting Rights in the South, 1944-1969
(1976) and In Pursuit of Power: Southern Blacks and Electoral Politics, 1965-1982 (1985). My
JA1247
Case 1:13-cv-00660-TDS-JEP Document 117-7 Filed 05/19/14 Page 1 of 91
2
other books, Running for Freedom: Civil Rights and Black Politics Since 1941, 4th edition (2014)
and Debating the Civil Rights Movement, 1945-1968, 2nd edition [with Charles Payne] (2006) are
used widely in colleges throughout the country. My publications also include thirty journal
articles, book chapters, and book essays. Much of this work deals with federal efforts to
eliminate racial discrimination in the electoral process in the southern states. Funding for this
research has been underwritten in part by grants from the National Endowment for the
Humanities, the American Council of Learned Societies, and the National Humanities Center.
4. As a leading scholar in the field, I participated as an academic consultant in the making
of the television documentary film series Eyes on the Prize, Parts 1 & 2, which aired on Public
Broadcasting System and won numerous awards.
5. I also acted as Co-Director, with William A. Link, of the North Carolina Politics Project,
Southern Oral History Program, University of North Carolina-Chapel Hill, from 1995-96. In
addition, I served from 1979 to 1984 as managing editor of Tampa Bay History, a historical
journal for scholars and history buffs. See Exhibit A.
6. Prior to U.S. v. North Carolina, I served as an expert in three voting cases, Warren v.
Krivanek (1985),1 and Concerned Citizens of Hardee County Florida v. County Commissioners
of Hardee County (1989),2 and U.S. v. Georgia /Brooks v. Miller (1996).3
1 This case concerned a challenge to the at-large system of elections for commissioners in Hillsborough County, Florida.
Currently, I have been
retained by the United States Department of Justice to provide expert testimony. I am
compensated for my time at the rate of $250 per hour.
2 This case dealt with a challenge to the at-large system of elections for commissioners in Hardee County, Florida.
3 This case dealt with a challenge to the majority-vote, run-off election system in Georgia.
JA1248
Case 1:13-cv-00660-TDS-JEP Document 117-7 Filed 05/19/14 Page 2 of 91
3
The Nature of the Current Investigation
7. I was asked by attorneys in the Voting Section of the Civil Rights Division in the U.S.
Department of Justice to perform an analysis to assist the court in determining whether HB 589 /
S.L. 2013-381 was adopted with a discriminatory purpose. To that end the following report
describes and analyzes the sequence of events culminating in passage of HB 589 / S.L. 2013-
381, the North Carolina omnibus election law passed in 2013. As part of my analysis, I have
looked into the historical context in which the election law was passed, the legislative process
and any departures from its usual proceedings, and contemporaneous racial comments by
lawmakers on other legislative matters. It is my hope that the following analysis will assist the
court in assessing the degree to which a racially discriminatory intent was among the factors
underlying the 2013 adoption by the state of North Carolina of the provisions relating to
requiring photo identification for voting, reducing the early voting period by one week, ending
same-day registration, and prohibiting counting of provisional ballots cast out of a voter’s
precinct but within the proper county.
8. I have relied on primary and secondary sources available to me at the time in writing this
report. For background information I read secondary works related to North Carolina politics and
race relations written by historians, political scientists, sociologists, and journalists. Once I
established the context for the events under study, I relied heavily on primary sources to shape
my narrative and interpretations. I have read the records of the North Carolina General
Assembly, including transcripts of committee hearings and floor debate. I have also reviewed
relevant memoranda and reports issued by the North Carolina State Board of Elections (SBOE). I
JA1249
Case 1:13-cv-00660-TDS-JEP Document 117-7 Filed 05/19/14 Page 3 of 91
4
supplemented these sources with another primary source commonly used by historians:
contemporary newspapers. In conjunction with official records, newspaper articles can help
scholars construct a fuller account of the actions of and comments made by participants that
would otherwise be lost in explaining the events under review. Newspaper accounts must be
handled carefully, and as much as possible checked for accuracy.4
9. In studying the question of legislative purpose I acknowledge that lawmakers respond to
a variety of interests and pressures. It is possible for a legislator to take a position that conforms
to a general principle like good government and election integrity and at the same time be
influenced by partisan and personal considerations, including discriminatory motivations.
Indeed, when principle and politics merge, lawmakers experience the least internal conflict. For
example, it is possible for individuals to engage in intentional discrimination—that is, to take an
act because of its disproportionate consequences on a racial group—without having racial
animus in the sense of disliking members of that racial group or believing that members of the
group are inferior. This would apply if lawmakers took an action for partisan purposes knowing
I sampled an extensive
collection of newspapers from throughout the state and compared their articles to each other for
consistency. Newspaper reports are subject to error, and to minimize this problem I
supplemented journalistic accounts with other available sources such as the ones discussed
above. I also read reports published by non-partisan organizations representing a variety of
viewpoints, including but not limited to Democracy North Carolina, the Brennan Center for
Justice at New York University Law School, League of Women Voters North Carolina, the
Voter Integrity Project, and Civitas Institute.
4 The same must be said for other sources, such as Internet blogs.
JA1250
Case 1:13-cv-00660-TDS-JEP Document 117-7 Filed 05/19/14 Page 4 of 91
5
it would have a disproportionate racial effect on African Americans. As Federal Judge Alex
Kozinski wrote, “Personal feelings toward minorities don’t matter; what matters is that you
intentionally took actions calculated” to have a negative impact toward these minorities.5
Outline of Sequence of Events: Executive Summary
As the
history of North Carolina demonstrates, this formulation does not single out one political party;
at different times, it has described Democrats as well as Republicans. Whereas white
Republicans and Populists allied with African Americans in the post-Civil War South and the
1890s, around the turn of the twentieth-century the North Carolina Democratic Party succeeded
in defeating this interracial political alliance that threatened its power. Democrats disfranchised
African Americans and used violence to keep them from the polls. After passage of the Voting
Rights Act in 1965, the two parties’ interests shifted and Democrats gained the support of the
majority of blacks whereas Republicans appealed mainly to whites. Whether Republican or
Democrat and regardless of the personal feelings of its members, each party at different periods
of time took actions that negatively affected black North Carolinians.
6
10. On August 12, 2013, Governor Pat McCrory of North Carolina signed into law HB 589,
which contained provisions affecting all primary and general elections, including requirements
for a photo identification card for voting, the reduction of the early voting period from seventeen
to ten days (while maintaining the same number of hours as the 2012 and 2010 elections), the
end of same-day registration (together with early voting, also known as “one-stop” voting), a ban
5 Garza v. County of Los Angeles, 918 F. 2d 763, 778-79 (9th Cir. 1990) (Kozinski, J., concurring and dissenting in part).
6 This summary as well as the narrative and conclusion that follow are based on research materials that were available to me as of April 11, 2014. As additional materials become available, I will take them into account.
JA1251
Case 1:13-cv-00660-TDS-JEP Document 117-7 Filed 05/19/14 Page 5 of 91
6
on provisional voting out of precinct, and the removal of straight ticket voting. Approved by the
General Assembly on July 25, 2013, this measure marked the reversal of a decade of reform
efforts that were designed to, and did, expand political participation by revising North Carolina’s
election procedures. An examination of the sequence of events from 1999 to 2007 will show that
Tar Heel lawmakers moved steadily in that period to reconstruct their suffrage laws to make it
easier for citizens to register to vote and for registered voters to cast ballots.7 Previously, state
law had allowed in-person absentee voting (known as early voting) as long as an individual
provided a proper excuse for not being able to vote on Election Day. In 1999, North Carolina
expanded the possibility of early voting by removing the requirement of providing an excuse to
cast an early ballot for general elections.8 In 2001, the state authorized an early-voting period of
seventeen days, beginning on the third Thursday before the election. It allowed for early voting
on the last Saturday before the election and permitted election boards to operate evenings and
weekends.9 Shortly thereafter, the General Assembly extended the provision for early voting to
cover primaries as well as general elections.10 In 2005, North Carolina confirmed the legality of
the practice of counting provisional ballots by individuals who were otherwise qualified but cast
their votes out of precinct within the appropriate county.11
7 NORTH CAROLINA STATE BOARD OF ELECTIONS, THE MODERNIZATION OF NORTH CAROLINA ELECTIONS FROM 1993 TO PRESENT (March 2011).
In 2007, the state went even further in
expanding the suffrage by allowing eligible adults to register and vote on the same day within the
early voting period, amending the previous requirement that eligible voters register more than 25
8 S.B. 568, 1999-2000 Sess. (N.C. 1999) (S.L. 1999-455).
9 H.B. 831, 2001-2002 Sess. (N.C. 2001) (SL 2001-319).
10 H.B. 977, 2001-2002 Sess. (N.C. 2001) (SL 2001-337).
11 S.B. 133, 2005-2006 Sess. (N.C. 2005) (S.L. 2005-2).
JA1252
Case 1:13-cv-00660-TDS-JEP Document 117-7 Filed 05/19/14 Page 6 of 91
7
days before the election.12 Following these reforms, in the 2008 presidential election, Barack
Obama became the first Democrat to carry North Carolina since Jimmy Carter in 1976. He also
became one of the few African Americans to win statewide election in Tar Heel history. Winning
by 14,000 votes of 4.4 million cast in the North Carolina, he owed a good deal of his success to
the record turnout of African American voters.13 Stemming largely from the election reforms
enacted over the previous decade and the presence of Obama at the head of the Democratic
ticket, black turnout as a percentage of black registered voters stood at 72 percent.
Approximately 42 percent of Democratic votes were cast by African Americans. Widely
reported exit polls indicate the overwhelming percentage of African Americans voted for the
black presidential candidate.14
11. In the wake of increased black voting, the Republican Party sought measures to reverse
the reforms that had expanded opportunities to vote for African Americans and other minorities.
After Republicans won a majority of both houses of the General Assembly in 2010, a year later
lawmakers passed a bill requiring voters to show photo identification in order to vote.
15
12 H.B. 91, 2007-2008 Sess. (N.C. 2007) (S.L. 2007-253). See also, Letter from Gary O. Bartlett, Exec. Dir., North Carolina State Board of Elections, to Deborah Ross, Representative, North Carolina House of Representatives (Feb. 15, 2007). The North Carolina State Board of Elections Executive Director explains the operation and protections of one-stop registration to a state house representative.
They
also introduced bills to reduce the period of early voting, which passed the House but not the
13 ROB CHRISTENSEN, THE PARADOX OF TAR HEEL POLITICS: PERSONALITIES, ELECTIONS, AND EVENTS THAT SHAPED MODERN NORTH CAROLINA 309 (2008).
14 Declaration of Charles Stewart III, Ph.D., Exhibits 22: Turnout and registration, by race, 2006–2012 and 24: Turnout and registration, by party and race, 2006-2012, United States v. North Carolina, 1:13-cv-861 (Apr. 2014); ANNENBERG PUBLIC POLICY CTR., N.C.’S AFRICAN AMERICAN POPULATION (Apr. 2008), http://www.factcheck.org/2008/04/ncs-african-american-population/.; Laura Leslie, 2012 Turnout Data Shows NC Sharply Split, WRAL.com (Jan. 22, 2013), http://www.wral.com/2012-turnout-data-shows-nc-sharply-split/12009162/.
15 H.B 351 (S.B. 352). 2011-2012 Sess. (N.C. 2011).
JA1253
Case 1:13-cv-00660-TDS-JEP Document 117-7 Filed 05/19/14 Page 7 of 91
8
Senate. In vetoing the photo identification measure, Governor Beverly Perdue explained that it
was aimed at diminishing opportunities for African Americans to cast their ballots.16
The Intimate Connection Between Race and Politics in North Carolina: An Overview
After
Republican Pat McCrory succeeded Perdue as governor in 2012, the General Assembly once
again enacted the photo identification law. This time, it also attached additional provisions
restricting early voting, ending same-day registration, and refusing to count provisional votes
cast out of precinct that each burdened African American citizens to a greater degree than they
did whites. This omnibus measure was the product of an unusual and procedurally irregular
timetable. After the House passed a photo identification bill in April 2013, the proposal remained
in the Senate for three months only to be rushed to the floor with numerous new provisions and
little time for careful review and debate of the greatly revised measure. Within three days of
leaving committee and the session about to close, the Senate approved its version of the bill and
hurried it to the House for a vote on the same day. The House had several options. It could have
voted on concurrence with the Senate version, it could have sent the bill to the House Elections
Committee, or it could have proposed a conference committee for further consideration. Top
House leaders decided to allow lawmakers to take only a concurrence vote. This forced members
to vote the measure up or down with only a few hours for discussion and without sufficient time
for examining in any detail the many significant changes to the bill.
12. Contrary to its progressive image in some popular accounts, the history of race and
politics in North Carolina shares may features with other former Confederate States that
disfranchised African Americans around the turn of the twentieth century through poll taxes,
16 Gov. Perdue Vetoes Voter ID Bill, NEWS AND OBSERVER, June 23, 2011.
JA1254
Case 1:13-cv-00660-TDS-JEP Document 117-7 Filed 05/19/14 Page 8 of 91
9
literacy tests, and intimidation.17 African Americans continued to vote in significant numbers in
the Tar Heel State throughout the late nineteenth century. Supporters of the Republican Party,
they challenged the power of the Democratic Party, which had succeeded in overthrowing the
interracial Reconstruction government in 1876.18 In the mid-1890s, black Republicans joined a
fusion movement with the largely white Populist Party to gain control of state government. In
1898, however, Democrats recaptured the legislature and governorship through a campaign of
white supremacy, smearing Fusionists with the brush of “Negro domination.”19 In November
1898, white supremacists engineered a “coup d’etat” to overthrow remaining Fusionist control in
Wilmington, North Carolina, where a white mayor and a bi-racial city council governed the city.
Encouraged by Democrats, some 1,500 white men torched the black newspaper, ran city officials
out of town, destroyed businesses and homes in black neighborhoods, and killed at least twenty-
five and as many as sixty African Americans. As a result, some 2,100 blacks permanently fled
the city, turning Wilmington from a majority-black to majority-white city.20
17 CHRISTENSEN, THE PARADOX OF TAR HEEL POLITICS, at 262-64.
Two years later, the
Democratic Party completed its white supremacy objectives by disfranchising African
Americans through passage of state constitutional amendments imposing a poll tax and a literacy
test for registering and voting. In 1900, voters overwhelmingly approved these constitutional
changes, thereby drastically reducing black electoral participation. Consequently, George H.
White, who had served as a Republican congressman since 1897, left office in 1901 on the wave
of black disfranchisement—the last African-American congressional representative from the Tar
18 WILLIAM A. LINK, NORTH CAROLINA: CHANGE AND TRADITION IN A SOUTHERN STATE 236 (2009).
19 Id. at 269-71.
20 Id. at 272-74; CHRISTENSEN, PARADOX, at 25.
JA1255
Case 1:13-cv-00660-TDS-JEP Document 117-7 Filed 05/19/14 Page 9 of 91
10
Heel State until the elections of Eva Clayton and Mel Watt in 1992.21 Under the new political
reality, pockets of the dramatically weakened GOP did exist between 1900 and 1971, but no
Republican won a statewide election in North Carolina.22
13. Following the white supremacy campaigns at the turn of the twentieth century, North
Carolina maintained as rigid a form of racial segregation as did its sister states in the South up to
the 1960s.
23 “Disfranchisement and the advent of Jim Crow were landmark occurrences in North
Carolina,” the historian William A. Link has concluded. “Black males [and later women] were
now effectively excluded from voting—and political power,” Link added, “and their political
rights would not be fully restored until the civil rights revolution of the 1950s and 1960s.”24 A
Federal court in North Carolina reached the same conclusion. “The history of black citizens’
attempts since the Reconstruction era to participate effectively in the political process and the
white majority's resistance to those efforts is a bitter one,” Judge James Dickson Phillips
declared in 1984, “fraught with racial animosities that linger in diminished but still evident form
to the present and that remain centered upon the voting strength of black citizens as an identified
group.”25
14. Indeed, North Carolina became a key battleground in the civil rights movement. The
earliest freedom rides (known as the Journey of Reconciliation) to desegregate public
transportation and travel facilities were launched in North Carolina by civil rights activists in
21 LINK, NORTH CAROLINA, at 279-80.
22 Id. at 278. Jesse Helms won the US Senate race in 1972. The best biography of Helms is WILLIAM A. LINK, RIGHTEOUS WARRIOR: JESSE HELMS AND THE RISE OF MODERN CONSERVATISM (2008).
23 CHRISTENSEN, PARADOX, at 39-41.
24 LINK, NORTH CAROLINA, at 279.
25 Gingles v. Edminsten, 590 F.Supp.345, 359 (E.D.N.C. 1984).
JA1256
Case 1:13-cv-00660-TDS-JEP Document 117-7 Filed 05/19/14 Page 10 of 91
11
1947, resulting in the arrest of the protesters in Chapel Hill.26 Thirteen years later, black students
at North Carolina A & T University and Bennett College spearheaded the sit-in movement to
desegregate lunch counters, which created the most successful efforts to topple Jim Crow and
promote black enfranchisement the nation had witnessed since Reconstruction after the Civil
War.27 When President Lyndon B. Johnson signed into law the landmark Voting Rights Act in
1965, forty-one of one hundred North Carolina counties became covered under the law’s formula
targeting jurisdictions with literacy tests that had voter registration or voter turnout rates under
50 percent in the 1964 presidential election,28 almost always because those literacy tests had
been administered in a racially discriminatory way or had had a racially discriminatory effect. As
with the rest of covered jurisdictions in Alabama, Georgia, Louisiana, Mississippi, South
Carolina, and Virginia, the Tar Heel State had to submit any changes in its election procedures
for federal scrutiny. The long history of disfranchisement in these states and their resistance to
change warranted Congress imposing these measures.29
15. Yet despite its tradition of segregation and disfranchisement, North Carolina was also
considered less traditional than the other states in the region. Mainly due to the strength of its
state university system with its flagship campuses in Chapel Hill, Raleigh, and Greensboro, the
moderate political leadership of Frank Porter Graham, Luther Hodges, and Terry Sanford, and its
26 DEREK C. CATSAM, FREEDOM’S MAIN LINE: THE JOURNEY OF RECONCILIATION AND THE FREEDOM RIDERS 27-30 (2011).
27 WILLIAM H. CHAFE, CIVILITIES AND CIVIL RIGHTS: GREENSBORO, NORTH CAROLINA, AND THE STRUGGLE FOR BLACK ADVANCEMENT (1981).
28 Public Law 89-110 (1965). STEVEN F. LAWSON, BLACK BALLOTS: VOTING RIGHTS IN THE SOUTH 1944-1969, 312 (1976). Initially, North Carolina had 41 covered counties but Wake County bailed out in 1967. See Paul F. Hancock and Lora L. Tredway, The Bailout Standard of the Voting Rights Act: An Incentive to End Discrimination, 17 THE URBAN LAWYER 379, 392 (1985).
29 On the history of disfranchisement see J. MORGAN KOUSSER, SHAPING OF SOUTHERN POLITICS, SUFFRAGE RESTRICTION AND ESTABLISHMENT OF THE ONE PARTY SOUTH, 1890-1910 (1974).
JA1257
Case 1:13-cv-00660-TDS-JEP Document 117-7 Filed 05/19/14 Page 11 of 91
12
burgeoning metropolitan, business and financial centers in Charlotte and Research Triangle Park,
North Carolina acquired a progressive image.30 Like many other observers, the political scientist
Jack D. Fleer asserted that North Carolinians “demonstrated a progressive spirit as leaders of the
region.” But the progressivism did not extend to full political equality for all races. Writing as
early as 1949, V.O. Key, the distinguished political scientist, used the adjective “progressive” to
define North Carolina but followed it with the noun “plutocracy,” acknowledging the state’s
legacy of limited political participation and racial exclusion.31 Along these lines, Jack Bass and
Walter DeVries wrote about the “progressive myth” of North Carolina,32 the historian Dan
Carter concluded that the extent of North Carolina’s progressivism has been “exaggerated,”33
and the journalist Ferrel Guillory remarked that “the farther you get from North Carolina the
more progressive it looks.”34 In his study of the civil rights movement in North Carolina, the
historian William H. Chafe attributed much of the state’s progressive reputation to good manners
and an avoidance of the kind of nasty, racial strife that characterized the Deep South. However,
North Carolina’s brand of “civility” did not guarantee the extension of civil rights in the 1950s
and early 1960s.35
30 THE NEW POLITICS OF NORTH CAROLINA 1 (Christopher A. Cooper and H. Gibbs Knotts, eds., 2008).
31 Id.
32 Id. at 2.
33 Dan T. Carter, North Carolina: A State of Shock, SOUTHERN SPACES (Sept. 24, 2013), http://southernspaces.org/2013/north-carolina-state-shock.
34 NEW POLITICS, at 2.
35 CHAFE, CIVILITIES. For other important discussions of North Carolina history and politics see TOM EAMON, THE MAKING OF A SOUTHERN DEMOCRACY: NORTH CAROLINA POLITICS FROM KERR SCOTT TO PAT MCCRORY (2013); and PAUL LUEBKE, TAR HEEL POLITICS 2000 (1998).
JA1258
Case 1:13-cv-00660-TDS-JEP Document 117-7 Filed 05/19/14 Page 12 of 91
13
16. Nevertheless, North Carolina blacks made great progress in obtaining and exercising the
suffrage following passage of the 1965 Voting Rights Act, but they still lagged behind whites.
The proportion of black voter registration soared from 36 percent of the eligible black population
in 1962 to 63 percent in 1990, closer to but still behind the rate for whites (69 percent).36 Nearly
500 black elected officials held office, representing 8.5 percent of the total number of elected
officials in the state, up from a handful a half-century earlier.37 Yet in 2004, black North
Carolinians ranked fifth in the percentage of blacks of voting age registered to vote in the region,
trailing behind Mississippi, Alabama, Louisiana, and South Carolina.38 Moreover, as Christopher
A. Cooper and H. Gibbs Knotts have pointed out, taking into account a variety of measures of
attitudes towards racial integration, North Carolina stood third from the bottom, with a score of
.55 on a racial integration scale, higher only than Alabama and Arkansas.39
36 The 1962 figure comes from STEVEN F. LAWSON, RUNNING FOR FREEDOM: CIVIL RIGHTS AND BLACK POLITICS IN AMERICA SINCE 1941, 89 (2009) and the 1990 figure from William R. Keech and Michael P. Sistrom, North Carolina, in QUIET REVOLUTION IN THE SOUTH 155-175 (Chandler Davidson and Bernard Groffman, eds., 1994).
In addition, Charles
Bullock III and Ronald Keith Gaddie demonstrated that a very high degree of racial polarization
continues to exist in local, congressional, and statewide elections in the Tar Heel State.
“Substantial progress has been observed in North Carolina,” they wrote in 2009, “although the
37 DAVID A. BOSITIS, JOINT CENTER FOR POLITICAL AND ECONOMIC STUDIES, BLACK ELECTED OFFICIALS: A STATISTICAL SUMMARY 2000 (2001).
38 NEW POLITICS at 8-9. The authors used U.S. Census Bureau estimates.
39 Id. at 9. The authors computed their rankings from information in Paul Brace, Kellie Sims-Butler, Kevin Arceneaux, and Martin Johnson, Public Opinion in the American States: New Perspectives on Using National Survey Data, AMERICAN JOURNAL OF POLITICAL SCIENCE (Jan. 2002): 173-89, esp. Table 1, and Appendix 2A. For another study that found highly segregated African-American and minority communities (75 percent non-white) in North Carolina experiencing “dramatic disparate impacts” in environmental justice, education, and housing, see UNC CENTER FOR CIVIL RIGHTS, THE STATE OF EXCLUSION: AN EMPIRICAL ANALYSIS OF THE LEGACY OF SEGREGATED COMMUNITIES IN NORTH CAROLINA (2013).
JA1259
Case 1:13-cv-00660-TDS-JEP Document 117-7 Filed 05/19/14 Page 13 of 91
14
state still exhibits a racially charged political atmosphere.”40 Furthermore, from the 1970s to the
2000s, jurisdictions in North Carolina continued to enact measures that disadvantaged black
voters. During this period the Justice Department objected to 65 changes in North Carolina
voting practices, six since 1999.41 At the same time, plaintiffs brought 55 successful cases in the
Tar Heel State under Section 2 of the Voting Rights Act. Ten of the lawsuits ended in a judicial
decision and forty-five were settled favorably out of court.42
17. Political advancement only went so far, and black North Carolinians also continued to lag
behind whites in measures of economic well-being. The percentage of black families living
below the federal poverty level ($17,603 annual income for a family of four) in 1999 was 22.9
percent compared to 8.4 percent for whites. About 29 percent of black families were headed
solely by females, compared to 7.5 percent for white families. Of these female-headed
households, 35 percent lived in poverty. African-American residents were more likely than
whites not to finish high school, 19.5 percent to 11.3 percent. In 2000, before the Great
Recession, the unemployment figures for blacks and whites were 10.3 to 3.8 percent
respectively, underscoring a wide gap between the races. Not surprisingly, experiencing high
40 CHARLES BULLOCK III AND RONALD KEITH GADDIE, THE TRIUMPH OF THE VOTING RIGHTS ACT IN THE SOUTH 217, 211-16 (2009).
41 See U.S. Department of Justice, Civil Rights Division, http://www.justice.gov/crt/about/vot/sec_5/nc_obj2.phpDOJ, CRD website. Of the 65 objections, the Department of Justice subsequently withdrew 17 of them.
42 See the case summaries for North Carolina in Voting Rights Act: Evidence of Continuing Need: Hearing Before the Subcomm. on the Constitution of the S. Comm. on the Judiciary, 109th Cong., Appendix to the Statement of Wade Henderson, “Voting Rights in North Carolina, 1982-2006” at 1769-77, 1779, 1781-95, 1797-98, 1800-02 (2006).
JA1260
Case 1:13-cv-00660-TDS-JEP Document 117-7 Filed 05/19/14 Page 14 of 91
15
levels of economic misery, 19 percent of African Americans in North Carolina had no health
insurance and were five times more likely than whites to use Medicaid.43
Reforming North Carolina, 1999-2007
18. Starting in 1999, North Carolina lawmakers initiated a series of reforms to expand
opportunities for a greater number of voters to go to the polls. At the beginning of the 1990s
African Americans still trailed behind whites in the state in percentage of black eligible voters
registered and turning out at the polls.44 Aggregate turnout rates in North Carolina had been low
for whites as well as African Americans. In the late 1980s the state ranked 48th in the nation
(44.5 percent of eligible voters going to the polls) in voter participation on Election Day.45
Despite lagging behind most of the nation, the state experienced increased voter turnout between
1984 and 1996 of some 14 percent. The gains in voting were greatest in six metropolitan
Piedmont counties, and some of them had begun seeing long lines on Election Day.46 In 1997,
the Charlotte Observer reported that long lines to vote in Mecklenburg County prompted its
election director to advocate no-excuse, in-person voting.47
43 Id. at 1732.
Two years later in 1999, the
legislature agreed and approved SB 568, which extended the possibilities for early voting in
44 Keech and Sistrom, North Carolina, at 160-61.
45 Table, National Rankings in Voter Turnout, Presidential Elections, 1988-2012, North Carolina Center for Public Policy Research, http://www.nccppr.org/drupal/sites/default/files/file_attachments/accomplishments/nc_voter_turnout.pdf. The data on eligible voters cited here, based on calculations by political scientist Michael McDonald, consist of the voting-age population, excluding mainly non-citizens and convicted felons.
46 LUEBKE, TAR HEEL POLITICS, at 209.
47 Editorial, No Voter Relief, CHARLOTTE OBSERVER, July 18, 1997; Taylor Batten, No-Excuse’ Absentee Voting Put on Hold, CHARLOTTE OBSERVER, July 17, 1997. Elections Director Bill Culp was referring to the long Election-Day lines in the 1996 election for president. But the elections included the contest between Harvey Gantt, the African American Democrat trying to unseat incumbent Republican Jesse Helms for the Senate, which added to the great interest and long lines on Election Day. Gantt lost.
JA1261
Case 1:13-cv-00660-TDS-JEP Document 117-7 Filed 05/19/14 Page 15 of 91
16
general elections by allowing voters to cast an in-person absentee ballot without having to
provide an excuse for why they could not vote on Election Day. The law also authorized county
boards of elections to designate additional one-stop voting sites, thereby providing increased
access to polling places.48 During the next full legislative session in 2001, the legislature enacted
HB 831, which set the dates for one-stop early voting, as it was called, from the third Thursday
before Election Day until the last Saturday before Election Day, the time period that would
prevail until 2013. The law authorized polling places to stay open evenings and weekends and
required them to remain in operation the final Saturday before the election. While the vote in the
House (60-54) broke mainly along party lines, with unanimous Democratic support and only four
Republican supporters, the Senate vote (46-2) reflected bipartisan support, with only two
Republicans dissenting. A companion piece of legislation, HB 977, removed the “excuse” clause
from all in-person early voting and applied such in person early voting to primaries as well as
general elections.49
19. Early voting started off slowly in North Carolina but soon picked up speed. In 2004, 27.6
percent of the total electorate cast their ballots in this way. Four years later the figure
skyrocketed to 55.8 percent.
50
48 S.B. 568, 1999-2000 Sess. (N.C. 1999)(S.L. 1999-455). Those voting absentee by mail still had to provide an excuse.
Early in-person voting became popular in North Carolina as well
as some thirty other states that adopted it because of its convenience for both voters and election
officials. It removed some of the pressure off poll workers who faced long lines and the last-
minute rush on Election Day. It provided working people with a means of adjusting their
49 H.B. 831, 2001-2002 Sess. (N.C. 2001)(S.L. 2001-319); H.B. 977, 2001-2002 Sess. (N.C. 2001)(S.L. 2001-337).
50 DIANA KASDAN, BRENNAN CENTER FOR JUSTICE AT NEW YORK UNIVERSITY LAW SCHOOL (hereinafter referred to as Brennan Center), EARLY VOTING: WHAT WORKS 7 (2013).
JA1262
Case 1:13-cv-00660-TDS-JEP Document 117-7 Filed 05/19/14 Page 16 of 91
17
schedules to make certain they could get to the ballot box. Studies show early in-person voting
increased voter satisfaction, which encouraged voter turnout.51 From its inception, the extension
of early voting appealed to African Americans. In 2000, the Charlotte-Mecklenburg NAACP
called upon black churches to mobilize their members to participate in early voting. “The
bedrock or the foundation of the African American community throughout the years has been the
church,” NAACP president Dwayne Collins declared, “And we want to reach back to that
foundation this election.” In response, forty black churches in the Charlotte-Mecklenburg area
agreed to join the effort to get voters to the polls.52
20. In addition to early in-person voting reform, the state authorized the counting of
provisional ballots for those who cast ballots outside their assigned precinct but within their
county.
53 If a voter showed up at a polling place and was not on the list, the poll workers would
provide the voter with a provisional ballot. If it turned out that the voter was registered in the
county but was not in their assigned precinct, election officials would verify the voter’s correct
address and then would officially count the ballot for races for which the voter was eligible.54
51 Id.
The 2004 election brought a challenge by a Republican candidate for State Superintendent of
Education to the counting of these provisional ballots. In response, the state supreme court ruled
52 Andrea Walker, 40 Black Churches Join NAACP Effort to Push Early Voting, CHARLOTTE OBSERVER, Oct. 6, 2000.
53 H.B. 842, 2003-2004 Sess. (N.C. 2003) (S.L. 2003-226).
54 The legislature had codified this procedure in 2003 to comply with the federal Help America Vote Act (HAVA) passed in 2002 as a result of problems encountered in the Bush-Gore presidential contest in 2000. The act set up minimum election standards and offered funds to states and localities to upgrade voting machines, registration practices, and poll worker training. NORTH CAROLINA STATE BOARD OF ELECTIONS, THE MODERNIZATION OF NORTH CAROLINA ELECTIONS FROM 1993 TO PRESENT, 17-18 (March 2011).
JA1263
Case 1:13-cv-00660-TDS-JEP Document 117-7 Filed 05/19/14 Page 17 of 91
18
out-of-precinct votes invalid.55 Subsequently, the legislature weighed in to clarify the matter. In
2005, the General Assembly passed SB 133, which reaffirmed the state’s intention in having
ballots count in such situations. “Of those registered voters who happened to vote provisional
ballots outside their resident precincts on the day of the November 2004 General Election,” the
legislature noted in its enumerated findings in the text of bill, “a disproportionately high
percentage were African American.” The measure passed in the House 61-54 and in the Senate
29-21 with the parties strictly divided on this issue—no Democrat voted in the negative and no
Republican in the affirmative.56
21. In 2007, the next major reform in election procedures authorized in-person, same-day
registration during the early voting period. Previously, in order to vote in an upcoming election,
eligible citizens had to register at least twenty-five days before the election. The legislature
changed this by allowing a person to register and vote during the 17-day early voting period.
57
55 The case was James v. Bartlett, 607 S.E. 2d 638 (N.C. Sup. Ct. 2005). Matthew Eisley, Court Rejects Out-of-Precinct Ballots, NEWS AND OBSERVER, Feb. 5, 2005.
In
order to register at a one-stop registration site, eligible voters had to provide one of a range of
valid documents that showed the individual’s current name and address, such as a North Carolina
driver’s license, a photo I.D. from a government agency, a utility bill, or a bank statement.
Further, county boards were required to verify the eligibility of same-day registrants before
counting the registrant’s ballot, including verification of DMV and social security information
and mail verification of residency. Enactment of this bill saw the political parties sharply
divided, but it did draw some bipartisan support. In the House, the bill passed 69-47, with three
56 S.B. 133, 2005-2006 Sess. (N.C. 2005) (S.L. 2005-2).
57 H.B. 91, 2007-2008 Sess. (N.C. 2007) (S.L. 2007-253).
JA1264
Case 1:13-cv-00660-TDS-JEP Document 117-7 Filed 05/19/14 Page 18 of 91
19
Republicans joining the majority. The Senate saw a similar breakdown as four Republicans
united with thirty Democrats in favor of the bill. The Tar Heel State became the first in the South
to adopt this electoral procedure.58 The following year, some 125,000 North Carolinians
participated in same-day registration, comprising 13 percent of all new registrations.59 Overall,
states with a program like the one in North Carolina had 10-12 percent higher turnout than those
without it.60 In 2008, African Americans comprised about 35.5 percent of same-day registrants
(although they were only 22 percent of North Carolina’s registered voters overall) compared to
whites who were 55.1 percent of same-day registrants though 73 percent of total registered
voters.61 In addition, same-day registration produced another positive effect by cutting down on
the number of all types of provisional ballots cast from 77,500 to 54,000, thereby “reducing the
headache of processing provisional ballots for election officials” on Election Day.62
The Specter of Voter Fraud
22. As opportunities for early voting and same-day registrations increased and were
accompanied by higher turnout at the polls, one response to increased opportunities for political
participation was a proliferation of unsubstantiated charges of voter fraud. Most of the charges of 58 Josh Shaffer, Register and Vote at the Same Time, NEWS AND OBSERVER, Sept. 21, 2007.
59 NORTH CAROLINA STATE BOARD OF ELECTIONS, REPORT ON SAME-DAY REGISTRATION: EXPERIENCES IN THE 2008 PRIMARY AND GENERAL ELECTION, A Report to the North Carolina General Assembly to detail experience with Same-Day Registration and how it impacted the 2008 General Election, March 31, 2009. 60 Thomas Bates, A New Low in North Carolina, Rock the Vote Blog (April 20, 2011), http://www.blog rockthevote.com/2011/04/a-new-low-in-north-carolina.html; Mark Binker, Voting Bill Gets House Backing, NEWS AND RECORD, March 29, 2010; Matthew E. Milliken, Same-Day Registration Helps Turnout, DURHAM HERALD-SUN, Oct. 16, 2008.
61 Declaration of Charles Stewart III, Ph.D., Tables 2: Voter registration in North Carolina by race, 2000-2012, and Table 7: Distribution of new registrations, by race, ahead of the 2012 presidential election, United States v. North Carolina, 1:13-cv-861 (Apr. 2014).
62 DEMOCRACY NORTH CAROLINA, 2008 RECAP: SAME-DAY REGISTRATION & OTHER SUCCESSES (March 19, 2009), http://www.democracy-nc.org/downloads/WrapUpYearofVoterPR2008.pdf.
JA1265
Case 1:13-cv-00660-TDS-JEP Document 117-7 Filed 05/19/14 Page 19 of 91
20
voter fraud in North Carolina appear to be based largely on anecdotal evidence, whereas the data
indicate otherwise. A 2013 study conducted by the North Carolina State Board of Elections
found very little evidence of voter fraud from 2000-2012. Out of millions of ballots cast over a
twelve-year period, there were only 629 instances of improper voting. The largest number related
to ex-felons voting improperly, followed by double voting, improper absentee voting, and vote
buying and selling. Only two cases of voter impersonation were reported in over a decade.63 One
calculation described fraudulant votes in 2010 as constituting less than seven-tenths of one
percent of the overall votes cast. The existing legal regime, with its safeguards and its criminal
penalties, effectively prevented or deterred significant fraud.64 Prosecution for such a crime
proved a sharp deterrent. One statewide newspaper observed that “in this age of mechanic and
electronic voting machines and sophisticated registration procedure, vote fraud is no longer a
very serious concern.”65
23. Despite the near-total absence of demonstrated in-person voter fraud in North Carolina,
in 2006, some lawmakers launched an effort to combat it by requiring a photo identification card
for registered voters to cast their ballots at the polls. Introduced by Senator Phil Berger and
nineteen Republican co-sponsors, the bill targeted voting fraud. “We’re long past the days where
63 Letter from Gary O. Bartlett, Exec. Dir., North Carolina State Board of Elections, to Committees of the North Carolina General Assembly, House Elections and Appropriations Subcommittee on General Government (March 11, 2013), Attachment F: Documented Cases of Voter Fraud in North Carolina; Christopher Cooper and Gibbs Knotts, For the Record - Be Skeptical of Both Sides in Debate Over N.C. Voter ID Law, CHARLOTTE OBSERVER, Jan. 13, 2011. For a different opinion, see Susan Myrick, How Voter Fraud is Viewed by Board of Elections Members, CIVITAS REVIEW ONLINE (May 25, 2013) http://civitasreview.com/politicians/how-voter-fraud-is-viewed-by-board-of-elections-members/
64 Jake Seaton Widespread Voter Fraud Not an Issue in North Carolina, Data Shows, WNCN.com (July 25, 2013), http://www.wncn.com/story/22934120/widespread-voter-fraud-not-an-issue-in-nc-data-shows.
65 Editorial, No Voter Relief, CHARLOTTE OBSERVER, July 18, 1997; see also, Editorial, Same-Day Success, NEWS AND OBSERVER, July 14, 2007 and Editorial, Is it worth the Risk and the Cost?, NEWS AND OBSERVER, Oct. 19, 2008.
JA1266
Case 1:13-cv-00660-TDS-JEP Document 117-7 Filed 05/19/14 Page 20 of 91
21
election judges knew everybody who came into the voting precinct,” Berger explained. “There
may be pushback, but it just seems to me to be a common-sense kind of requirement to make
sure our process accurately reflects the sense of those people who are eligible voters.”66
The Presidential Election of 2008
Yet a
photo I.D. card would not put a stop to the primary forms of fraud such as double voting and
absentee voting. The bill died in the General Assembly.
24. In 2008, Senator Barack Obama of Illinois became the first African American to run for
president on a major political party ticket. His campaign mobilized African Americans
throughout the nation, including in North Carolina. Obama captured over 93 percent of black
ballots in addition to scoring well among Latino-Americans, voters under thirty-years of age, and
women.67 Obama beat McCain by 14,000 votes in the Tar Heel State, the first Democratic
presidential candidate to win the state since Jimmy Carter in 1976 and one of the few African
Americans to win statewide in North Carolina.68 Approximately 4.4 million North Carolinians
voted in 2008, a turnout of almost 70 percent of registered voters.69
66 Mark Binker, GOP Proposes Photo IDs for Voters, NEWS AND RECORD, May 31, 2006.
Previously, North Carolina
had ranked in the bottom third of states for voter participation, but now it ranked in the top third.
67 ROBERT C. SMITH, JOHN F. KENNEDY, BARACK OBAMA, AND THE POLITICS OF ETHNIC INCORPORATION AND AVOIDANCE, 162 (2013); Election Results, 2008, North Carolina, N.Y. TIMES (Dec. 9, 2008), http://elections.nytimes.com/2008/results/states/north-carolina.html.
68 BULLOCK AND GADDIE, THE TRIUMPH OF THE VOTING RIGHTS ACT, 209-10, note that African American candidate Ralph Campbell was elected state auditor in 1992 and won two more terms as auditor in 1996 and 2000; several African American candidates have also won statewide contests for judicial office.
69 Declaration of Charles Stewart III, Ph.D., Exhibit 22: Turnout and registration, by race, 2006-2012, United States v. North Carolina, 1:13-cv-861 (Apr. 2014); NORTH CAROLINA STATE BOARD OF ELECTIONS, THE MODERNIZATION OF NORTH CAROLINA ELECTIONS FROM 1993 TO PRESENT, 8 (March 2011); DEMOCRACY NORTH CAROLINA, COUNTY BY COUNTY DATA REVEAL DRAMATIC IMPACT OF PROPOSED ELECTION CHANGES ON VOTERS (July 22, 2013), http://www.democracy-nc.org/downloads/EarlyVoteSDRID.pdf.
JA1267
Case 1:13-cv-00660-TDS-JEP Document 117-7 Filed 05/19/14 Page 21 of 91
22
Impressed with this turnout, Greenville’s Daily Reflector commented: “North Carolina finds
itself on the vanguard of states looking for new ways to encourage participation at the polls.
Voting should be a treasured civic responsibility, one that inspires citizens to action. But it also
need not be an overly complicated or inconvenient burden.”70 In addition to the reforms enacted
over the past decade that had ushered in early voting and same-day registration, much of this
improvement in voter participation can be attributed to the presence of Barack Obama on the
ballot and the effectiveness of his organizing machinery. A record 2.4 million people voted early,
double the number who did so in 2004. Indeed, early voting tabulations provided the margin
Obama needed to eke out his slender victory. By contrast, his opponent John McCain received
the majority of votes cast on Election Day.71
25. The election figures were most impressive for blacks. Nearly one million African
Americans in North Carolina voted in 2008, a record turnout of 72 percent of registered black
voters.
72 Four years earlier, only 59 percent of registered African American voters had turned out
at the polls, trailing the 66 percent turnout rate among registered whites. In 2008, for the first
time in modern history in the Tar Heel State, the percentage of black registrants voting exceeded
that of whites (69 percent).73
70 Editorial, Big Numbers-Voter Turnout Helped by Innovations,” DAILY REFLECTOR, Nov. 12, 2008.
Data show that African Americans constituted 21 percent of the
71 Jim Morrill, GOP Bill Would Trim Early Voting By a Week, CHARLOTTE OBSERVER, Apr. 27, 2011. On votes cast solely on Election Day, Obama lost to McCain by 291,000. DEMOCRACY NORTH CAROLINA, 2008 RECAP: SAME-DAY REGISTRATION & OTHER SUCCESSES (March 19, 2009), http://www.democracy-nc.org/downloads/WrapUpYearofVoterPR2008.pdf.
72 Declaration of Charles Stewart III, Ph.D., Exhibit 22: Turnout and registration, by race, 2006-2012, United States v. North Carolina, 1:13-cv-861 (Apr. 2014).
73 Id.
JA1268
Case 1:13-cv-00660-TDS-JEP Document 117-7 Filed 05/19/14 Page 22 of 91
23
state’s voting-age population, but they were 23 percent of the total number of voters.74 Thirty-
three percent of new registered voters in 2008 were black.75 Over seventy percent (70.9 percent)
of black voters cast their ballots early, compared to 51 percent of white voters.76 Approximately
28 percent of those who took advantage of early voting were black and they made up 35 percent
of people who registered and voted on the same day.77
African Americans, Political Parties, and Race
26. African Americans had supported the Democratic Party nationally since the 1930s,
though in the South where few blacks could vote, black support for Republican presidential
candidates persisted mainly in urban areas.78 Following passage of the 1965 Voting Rights Act,
southern African Americans, like their counterparts in the North and West, backed the
Democratic Party—the party of John F. Kennedy and Lyndon B. Johnson, the two presidents
most closely associated with civil rights gains.79
27. At the same time that African-Americans became heavily identified with the Democratic
Party in North Carolina, the Republican Party grew as a major political force in the state by
74 DEMOCRACY NORTH CAROLINA, 2008 RECAP: SAME-DAY REGISTRATION & OTHER SUCCESSES (March 19, 2009), http://www.democracy-nc.org/downloads/WrapUpYearofVoterPR2008.pdf.
75 Id.
76 Declaration of Charles Stewart III, Ph.D., Exhibit 39: Early voting percentages for black and white North Carolina voters, 2006-2012, United States v. North Carolina, 1:13-cv-861 (Apr. 2014). See also Id. at Table 1: Distribution of new registrations, by race, ahead of the 2012 presidential election.
77 Declaration of Charles Stewart III, Ph.D., Exhibit 40: Number of early voters in North Carolina, by day, 2006–2012 and Exhibit 41: Black and white voters who voted on each day of early voting, 2006–2012, United States v. North Carolina, 1:13-cv-861 (Apr. 2014).
78 TIMOTHY N. THURBER, REPUBLICANS AND RACE: THE GOP’S FRAYED RELATIONSHIP WITH AFRICAN AMERICANS, 1945-1974, 76 (2013).
79 LAWSON, BLACK BALLOTS, at Chapters 9 and 10.
JA1269
Case 1:13-cv-00660-TDS-JEP Document 117-7 Filed 05/19/14 Page 23 of 91
24
appealing to those whites distasteful of rising black influence within the Democratic Party and
hostile to pro-civil rights policies. Frank Rouse, the chairman of the North Carolina Republican
Party in the 1970s, conceded the growth and increasing popularity of the state GOP in frank
words: “It’s race in North Carolina. This is not supposition. That is fact.” Of course, the
Republican Party blossomed for other reasons: migration of white Republicans from the North
into the state and an expanding middle class voting along economic lines. However, as Rouse
admitted, “the Republicans resent the fact that blacks bloc vote for Democrats and white
Democrats resent the fact that blacks have such a stranglehold on their party.”80
28. In 2008, Obama’s candidacy both increased and made more visible the identification of
African Americans and the Democratic Party. In 2004, African American voters in North
Carolina constituted approximately 34 percent of registered Democrats. Four years later, the
percentage of Democratic registrants who were black jumped to 41 percent.
81 To a greater extent
than in the past, African Americans and the Democratic Party were synonymous in the Tar Heel
State. Over the next four years, the connection between the two would grow even closer. In
2012, blacks constituted 44 percent of the Democratic Party’s registered voters.82 In turn, 85
percent of registered blacks were Democrats.83
80 See CHRISTENSEN, PARADOX, 205. On southern Republicanism in general, see MERLE BLACK AND EARL BLACK, THE RISE OF SOUTHERN REPUBLICANS (2002).
Party and race had become cemented to the
foundation of North Carolina politics. Because African Americans constituted a disproportionate
share of registered Democratic voters in relation to their percentage of the overall population,
81 Declaration of Charles Stewart III, Ph.D., Exhibit 24: Turnout and registration, by party and race, 2006-2012, United States v. North Carolina, 1:13-cv-861 (Apr. 2014).
82 Id.
83 Id. and Exhibit 22: Turnout and registration by race, 2006-2012. In 2012, 2.5 percent of registered blacks were Republicans and 12.5 percent were unaffiliated.
JA1270
Case 1:13-cv-00660-TDS-JEP Document 117-7 Filed 05/19/14 Page 24 of 91
25
election measures that expanded or limited African Americans had a similar impact on the
Democratic Party and vice versa.
Election Proposals, 2011
29. In 2011, the Republican Party responded to the expanding, and increasingly African-
American, electorate by reviving its photo identification bill, HB 351, and introducing other
measures aimed at rolling back reforms enacted during the previous decade. By this time, the
GOP’s fortunes in the state had soared. The 2010 elections resulted in Republicans winning a
majority of both houses of the General Assembly for the first time since 1870. However, for the
time being, the governor’s office remained in the hands of the Democrat Beverly Perdue.
30. Emboldened by a wave of voter identification bills in other states and a Supreme Court
decision that had rejected the challenge to one such bill—a challenge that did not involve a claim
of racial discrimination—some Republican legislators in North Carolina revived the idea of
requiring photo identification to vote.84
84Crawford v. Marion County, 553 U.S. 181 (2008). This lawsuit was not a challenge filed under the 1965 Voting Rights Act. Georgia was the first state in the Deep South to enact a photo identification requirement for voting, which won the approval of a federal court after some changes were made in the provision. The court concluded that Georgia’s 2005 photo identification law constituted a poll tax because non-drivers had to pay a fee for a photo voting card. After Georgia made obtaining the card free, the court approved it. Common Cause v. Billups, 406 F.Supp.2d 1326 (N.D. Ga. 2005).
In 2011, three House Republicans, David Lewis, Tim
Moore, and Ric Killian, sponsored the North Carolina version of the bill, HB 351, along with
thirty GOP co-sponsors. They entitled their proposal “An Act to Restore Confidence in
Government,” a surprising description in the wake of the 2010 Republican state election
victories. As in 2006, they invoked the specter of voter fraud. “Ensuring that a person is who
they say they are,” Representative Killian of Charlotte explained, “is a crucial first step toward
validating elections.” Killian exclaimed that he had “heard in Washington County where four
JA1271
Case 1:13-cv-00660-TDS-JEP Document 117-7 Filed 05/19/14 Page 25 of 91
26
dead people voted in the sheriff’s race.”85 Such charges of fraud through voting in the name of
the dead were common but unproven. The Voter Integrity Project presented to the state election
board a list of 30,000 individuals listed as current North Carolina voters, which it claimed were
dead. However, the SBOE did not find a single instance of anyone on the list voting
fraudulently.86 Yet supporters argued that a photo identification requirement would prevent these
and other voter irregularities and that the requirement would not burden anyone. Cathy Wright, a
resident of Chapel Hill, explained the rationale of many: “Surely if we must provide
identification to enter some federal buildings, board an airplane, or even cash a check, we can
ask our citizens to prove that they are qualified voters.”87 Although Rick Martinez, a
correspondent for the News and Observer, admitted that “voter fraud via identity theft [is] few
and far between in North Carolina,” he pointed out that under HB 351 voters who did not possess
a photo identification, such as a state driver’s license, would be furnished one at no cost. In fact,
he and other proponents of the measure asserted that after Georgia adopted photo identification,
black turnout in 2008 skyrocketed.88
85 Rob Christensen, Legislators to take up voter ID - Republicans and Democrats Debate the Extent of Voter Fraud in the State, NEWS AND OBSERVER, March 13, 2011.
However, this begged the question of whether photo
identification had this impact or the fact that Barack Obama was running for president, and it
ignored the fact that an increase in African American turnout also occurred in North Carolina,
which did not have a photo identification law. Moreover, the Georgia photo identification law
was less restrictive than North Carolina’s proposal in allowing voters to use expired state driver’s
86 Id.; IREHR, ABRIDGING, at 8; Kelly Poe, North Carolina Elections Board Reviewing the Names of Purportedly Dead Voters, NEWS AND OBSERVER, Sept. 21, 2012. See testimony of Jay DeLancey, Transcript of Hearings of the North Carolina General Assembly, House Elections Committee (March 12, 2013).
87 Cathy Wright, ID at the Polls, NEWS AND OBSERVER, Feb. 21, 2011.
88 Rick Martinez, Why Not Prevent Voter Fraud, NEWS AND OBSERVER, June 29, 2011.
JA1272
Case 1:13-cv-00660-TDS-JEP Document 117-7 Filed 05/19/14 Page 26 of 91
27
licenses and any identification issued by the United States and any state government and its
agencies.89
31. The legislature was presented with strong arguments in opposition to HB 351. The
opponents challenged the assertion that voting fraud was a problem that would justify this
response. Based on data drawn from the SBOE, they contended that North Carolina had a low
incidence of voter fraud despite the huge surge of voter turnout in 2008 and that district attorneys
should be relied upon to prosecute felony voter crimes. They further pointed out that possessing
photo identification would only address the issue of voter impersonation, which according to
election records, rarely existed.
90 Contesting the claim that photo identification would not be a
burdensome requirement on prospective voters, opponents argued that there were hundreds of
thousands of North Carolinians who did not have a motor vehicle license—the primary form of
voter identification.91 Within this group, African Americans, many of them poor, stood out. A
2006 study showed that 16.7 percent of African Americans did not own a motor vehicle,
compared to 5 percent of whites.92
89 Georgia Code, O.C.G.A. 21-2-417 (2013).
Picking up on the potential impact on African Americans, the
90 Bob Hall, For the Record—Voter Photo ID is a Sham, as Phony as the Three Dollar Bill, CHARLOTTE OBSERVER, March 17, 2011.
91 Letter from Gary O. Bartlett, Exec. Dir., North Carolina State Board of Elections, to Committees of the North Carolina General Assembly, House Elections and Appropriations Subcommittee on General Government (March 11, 2013), Attachment F: Documented Cases of Voter Fraud in North Carolina.
92 Voting Rights Act: Evidence of Continuing Need: Hearing Before the Subcomm. on the Constitution of the S. Comm. on the Judiciary, 109th Cong., Appendix to the Statement of Wade Henderson, “Voting Rights in North Carolina, 1982-2006” at 1818.
JA1273
Case 1:13-cv-00660-TDS-JEP Document 117-7 Filed 05/19/14 Page 27 of 91
28
News and Observer called HB 351 “a move back toward days of a more restrictive voting
franchise, days we shall not look back on with pride.”93
32. Supporters continued to stand firm behind their bill. On June 16, 2011, the House passed
HB 351 with the vote largely along party lines, 62-51. The Senate also concurred along party
lines, and the final bill went to Governor Perdue for her signature. Calling the measure “an
unnecessary and purely partisan intrusion on the right to vote,” Governor Perdue vetoed it and
declared that it “will only serve to reduce voting in the State—particularly among the elderly,
poor, and African Americans voters.”
94 Perdue’s decision stood as the House fell four votes short
of overriding her veto.95
33. During the 2011-2012 legislation session, the majority also proposed a package of bills
that would have reversed the reforms in place since 1999. HB 658, sponsored by Representatives
Bert Jones, Paul Stam, Jeff Collins, and Efton Sager would have curtailed the period for one-
stop, in-person voting by seven days, from seventeen to ten days. Nathan Tabor, chair of the
Forsyth County GOP, defended the proposal. “People would still have plenty of time to vote,” he
insisted,” and cutting down early voting by a week “would save taxpayers” the costs of funding
polling places and staffing them.
96
93 Editorial, The ID Impulse: In a Change With Little Justification Legislators Move to Require Photo IDs at Polling Places, NEWS AND OBSERVER, March 16, 2011.
Susan Myrick of the conservative Civitas Institute added that
reducing the period of early voting and consequently same-day registration would give election
94 Jim Morrill and Craig Jarvis, Perdue Vetoes Photo ID Bill - GOP Says Her Move is political, NEWS AND OBSERVER, June 23, 2011; Eric Kleefeld, North Carolina Dem Governor Vetoes GOP Voter-ID Bill, TPM (June 23, 2011), http://talkingpointsmemo.com/muckraker/north-carolina-dem-governor-vetoes-gop-voter-id-bill.
95 Editorial, Stop the Shenanigans Over the Voter ID Bill - Some Republicans Seem to be Drunk on Power; Sober Up, CHARLOTTE OBSERVER, Aug. 1, 2011; Editorial, Two-timers, NEWS AND OBSERVER, Aug. 16, 2011.
96 Staff and wire reports, Cut to Early Voting Advances, WINSTON-SALEM JOURNAL, May 12, 2011.
JA1274
Case 1:13-cv-00660-TDS-JEP Document 117-7 Filed 05/19/14 Page 28 of 91
29
officials more time to verify the addresses of voters. She claimed that before one-stop, in- person
registration during early voting came into being, the county board of elections had had 25 days to
substantiate the authenticity of the participants in this process; however, after its adoption, they
had had only six days before Election Day to do so. Myrick claimed that in 2008, thousands of
early voters who had registered the same day later had their ballots denied for providing invalid
addresses. Furthermore, she stated, in 2008, voters turned out sparingly the first week of early
voting. 97
34. Notably, the State Board of Elections issued an official memorandum that refuted these
assertions. The State Board maintained that early voting gave citizens the flexibility to go to the
polls when it fit their work schedules and that reducing the period by a week would create longer
lines and waiting times at the polls before and on Election Day. Moreover, the SBOE challenged
the claims that shaving a week from early voting would reduce costs and save the state money. It
explained that county boards of election would have to open additional polling sites to handle the
large and growing number of early voters, hire additional workers, and perhaps purchase
expensive equipment to meet demand. In addition, in contrast to Myrick’s assertion, the state
memorandum furnished statistics that demonstrated a high turnout of voters the first week of
early voting in 2008 (706,445). Of this total, approximately 32 percent were African Americans
(10 percent above the state’s black percentage of registered voters) and 64 percent were whites.
98
97 Susan Myrick, Shorten Early Voting – Good. Eliminate Registering and Voting on the Same Day – Better, Civitas Institute (May 24, 2011), http://www.nccivitas.org/2011/shorten-early-voting-good-eliminate-registering-and-voting-on-the-same-day-better/.
98 NORTH CAROLINA STATE BOARD OF ELECTIONS, MEMORANDUM RE: HOUSE BILL 658 (May 18, 2011); Jim Morrill, GOP Bill Would Cut Early Voting, CHARLOTTE OBSERVER, Apr. 27, 2011. According to data provided by North Carolina and analyzed by Charles H. Stewart, blacks cast a higher percentage of votes than did whites during the first seven days of in-person early voting in 2008 and 2012. The figures are 22.99 percent (black) and 14.14 percent (white) in 2008 and 28.24 and 17.32 respectively in 2012. These seven days comprise those eliminated by HB 589. African Americans also voted at a higher percentage than did whites (47.29 to 36.63 in 2008 and 42.12 to
JA1275
Case 1:13-cv-00660-TDS-JEP Document 117-7 Filed 05/19/14 Page 29 of 91
30
Others underscored what they saw as political motivations behind the proposal. The Democrats
had benefitted more than the Republicans from early voting in 2008, as Obama had won these
pre-Election Day ballots by a wide margin.99
35. On May 23, 2011, HB 658 narrowly passed the House, 60-58. The vote broke down
mainly along party lines. Only five Republicans opposed it, while Democrats lined up
unanimously in disapproval. After passage in the House, the bill went to the Senate where it was
referred to the Judiciary Committee, but it did not reach the floor for a vote.
100
The 2012 Elections
36. The 2012 election results in the Tar Heel State turned out very well for the Republican
Party. Republican Pat McCrory won for governor. Some 4.5 million ballots were cast, a rise
from 2008, and Republican voters turned out at higher rates and in larger numbers than four
34.52 in 2012) during the ten days of early voting in 2008 and 2012 that are retained in the omnibus bill. Declaration of Charles Stewart III, Ph.D., Exhibit 41: Black and white voters who voted on each day of early voting, 2006–2012, United States v. North Carolina, 1:13-cv-861 (Apr. 2014). With respect to cost savings from reducing early, in-person voting, this rationale fit into the Republican-controlled agenda of cutting the state budget. Yet, the position of supporters of the measure was not always consistent. In 2012, local election officials from more than 85 counties, including Republican board members from 40 counties, petitioned Republican legislative leaders to appropriate $664,000 to the SBOE to obtain $4.7 million of federal money available under the Help America Vote Act, which would yield an excellent return on their investment and assist small rural counties to conduct early voting for the 2012 presidential election. Republicans refused but changed their mind the following year. Laura Leslie, GOP Seeks to Curb Early Voting, WRAL.com (March 28, 29, 2013), http://www.wral.com/gop-seeks-to-curb-early-voting/12280309/; John Frank, Election Officials Urge Fund Release, NEWS AND OBSERVER, Feb. 7, 2012.
99 Editorial, Bill to Curtail Early Voting is Senseless, WINSTON-SALEM JOURNAL, May 10, 2011.
100 PROJECT VOTESMART, HB 658 - AMENDING EARLY VOTING PERIOD - VOTING RECORD (May 18, 2011), http://votesmart.org/bill/votes/35051#.Uvuoic5FBzc; THE VOTER UPDATE, ON CLOSE VOTE, N.C. HOUSE APPROVES CUT TO EARLY VOTING (May 19, 2011), http://thevoterupdate.com/jones/?p=379#.UvutPc5FBzc. Another bill, SB 657, introduced in the Senate by Jim Davis and three of his GOP colleagues would have ended one-stop voting on Sundays, a day popularly used by black churches to mobilize their members to vote. The measure went to the Senate Judiciary Committee but also did not make it to the floor for a vote.
JA1276
Case 1:13-cv-00660-TDS-JEP Document 117-7 Filed 05/19/14 Page 30 of 91
31
years before. In contrast, the number of Democrats showing up at the polls declined by 53,000,
accounting to a large degree for their party’s defeat.101
37. Although the overall turnout of registered North Carolina voters dropped from 69.6
percent to 68.3 percent between the 2008 and 2012 elections, African American registered voters
cast their ballots in 2012 at a rate of 70.2 percent, above the rate of whites (68.6 percent),
marking the second presidential election in a row that the black participation rate exceeded the
white participation rate. The high turnout rate for African Americans owed a great deal to black
women registered voters, who went to the polls at a rate of 76.4 percent. By contrast, without
Obama at the head of the ticket in 2010, the GOP had captured control of the state legislature and
registered white voters had turned out at a higher rate (46 percent) than had black voters (41
percent).
102 In addition, in 2012, African Americans utilized early voting to a greater degree than
did whites. About 71 percent of blacks turned out early to cast ballots compared with 52 percent
of whites.103
The House Considers HB 589 in 2013
38. Having secured the governor’s office and maintained control over the legislature,
Republicans had an unobstructed path to enact the election measures they had proposed in 2011.
Legislative proponents of photo identification had an ally in Governor Pat McCrory in contrast to
his predecessor. In his campaign for office in 2012, McCrory had praised photo IDs as a means
101 Stephanie Strom, Election 2012: North Carolina, N.Y. TIMES, Nov. 2012.
102 The figures in this paragraph are derived from Democracy North Carolina, DEMOCRACY NORTH CAROLINA, REPUBLICANS, AFRICAN AMERICANS, WOMEN AND SENIORS POST THE HIGHEST VOTER TURNOUT RATES IN NORTH CAROLINA (Dec. 19, 2012), http://democracy-nc.org/downloads/NCVoterTurnout2012PR.pdf.
103 Declaration of Charles Stewart III, Ph.D., Exhibit 39: Early voting percentages for black and white North Carolina voters, 2006–2012, United States v. North Carolina, 1:13-cv-861 (Apr. 2014).
JA1277
Case 1:13-cv-00660-TDS-JEP Document 117-7 Filed 05/19/14 Page 31 of 91
32
of protecting the integrity of the voting system. “I don’t want Chicago politics to come to North
Carolina,” he said.104 In running for governor, he urged his backers to show photo identification
when they went to the polls even though the law did not require them to do so. Responding to
those who denied that voter fraud was a problem, he averred: “If you don’t look for it, you won’t
find it. Nobody’s looking.” 105 This latter statement was not supported by the facts. The SBOE as
well as news outlets in the state had studied the issue and found very few cases of fraud and
particularly of voter impersonation, which was the only problem photo identification could
combat.106
39. The GOP had great confidence in its ability to adopt an identification bill similar to the
one vetoed by Governor Perdue. “The Republicans won the election,” boasted House Majority
Leader Edgar Starnes. “We are in control. We intend to elect Republicans and appoint
Republicans, and we make no apology for it.”
107
104 Jim Morrill, Voter ID Battles Churn in Key States, CHARLOTTE OBSERVER, Sept. 24, 2012. As mayor of Charlotte in 2007, McCrory had made a racially insensitive statement. McCrory declared that “too many of our youth, primarily African American, are imitating and/or participating in a gangster type of dress, attitude, behavior and action,” a remark that drew criticism from the local NAACP.
Yet in shaping the bill, partisanship could not
be their only concern. In drafting the bill, lawmakers acknowledged that they could not adopt
measures that had a racially discriminatory purpose or effect if their work was to survive scrutiny
under the Voting Rights Act. In December 2011 and March 2012 respectively, the Justice
Department had rejected under Section 5 of the Voting Rights Act photo identification laws from
105 Lynn Bonner, Tough Issues on the Agenda…, CHARLOTTE OBSERVER, Jan. 7, 2013.
106 Letter from Gary O. Bartlett, Exec. Dir., North Carolina State Board of Elections, to Committees of the North Carolina General Assembly, House Elections and Appropriations Subcommittee on General Government (March 11, 2013), Attachment F: Documented Cases of Voter Fraud in North Carolina;” Q & A: Voter ID, WRAL.com (Aug. 12, 2013), http://www.wral.com/q-a-voter-id/12226327/.
107 Ari Berman, 7 Ways North Carolina Republicans are Trying to Make it Harder to Vote, THE NATION, Apr. 5, 2013.
JA1278
Case 1:13-cv-00660-TDS-JEP Document 117-7 Filed 05/19/14 Page 32 of 91
33
South Carolina and Texas that had made it harder for minorities to vote.108 Having failed to
obtain preclearance, Texas then took its request for approval of photo identification to the federal
court in the District of Columbia, which ruled against the Longhorn State in August 2012.109
Subsequently, before the 2012 presidential election, a court in Pennsylvania enjoined on state-
law grounds implementation of photo identification laws that burdened low-income and elderly
voters.110 According to the Winston-Salem Journal, House Speaker Thom Tillis admitted that
any “ID bill will be written to comply with recent court rulings in other states.”111 Toward this
end, the Charlotte Observer reported before the beginning of the 2013 legislative session that
McGrory and Tillis favored permitting voters to show other forms of verification “that don’t
include a photo such as a registration card or other government documents.” Despite his initial
willingness “to accept other options,” the governor stated that he would defer to the legislature in
developing a bill.112
40. The House assigned HB 589 to its Elections Committee for deliberation. In early March
2013, the chair of the committee, David Lewis, promised careful hearings on the measure—“this
bill will not be rushed”—and planned to bring it to the House floor in mid-April. He stated that
108 Because the U.S. Department of Justice found that the submitted laws would have a retrogressive effect, it did not go on to address whether the laws had been passed with a discriminatory purpose.
109Texas v. Holder, 888F.Supp.2d. 113 (D.D.C. August 30, 2012). The opinion was later vacated and remanded following the Court’s decision in Shelby County. Texas v. Holder, 133 S.Ct. 2886 (2013).
110 Rick Lyman, Pennsylvania Voter ID Law Struck Down as Judge Cites Burden on Citizens, N.Y. TIMES, Jan. 17, 2012.
111 Editorial, It’s Inevitable, so do it Right, WINSTON-SALEM JOURNAL, Dec. 21, 2012; Editorial, Feds Right to Reject Texas Voter ID Bill - N.C. lawmakers Should Not Resurrect N.C. Legislation, CHARLOTTE OBSERVER, March 13, 2012.
112 John Frank and Craig Jarvis, Republicans Take the Rein: Party Now Rules House, Senate. Offers Softer Stance on Law Requiring Voters to Show Photo ID, CHARLOTTE OBSERVER, Jan. 10, 2013.
JA1279
Case 1:13-cv-00660-TDS-JEP Document 117-7 Filed 05/19/14 Page 33 of 91
34
he desired input from opponents to craft a better bill.113
1) Whether the requirement of a photo ID upon voting is good policy; 2) If such is
required, the impact of the requirement of a photo ID on the elections and other
governmental services; 3) If required, suggestions and ideas on how to implement a
requirement for photo ID, including how to assist voters in obtaining a photo ID.
The committee wanted speakers to
address the following questions:
114
At this stage, Lewis realized that any photo identification provision required the state to provide
free identification for those who did not have a driver’s license. He did not consider that
furnishing the cards would be expensive for the state based on the experience of Georgia, where
only 27,000 free cards were issued over six years. In taking this position, Lewis ignored evidence
provided by the SBOE that now estimated that more than 300,000 North Carolinians would
require free identification.
115
41. The House Elections Committee heard a parade of witnesses on March 12, 2013, at a
four-hour public hearing on HB 589. Among those who testified were five experts in the field of
voter identification—three opponents and two supporters. Bob Hall of Democracy North
Carolina, Allison Riggs of the Southern Coalition for Social Justice, and Keisha Gaskins of the
113 Matthew Burns and Cullen Browder, House Plans Go-Slow Approach for Voter ID Bill, WRAL.com (March 5, 2013), http://www.wral.com/house-plans-go-slow-approach-for-voter-id-bill/12183528/.
114 Transcript of Hearings of the North Carolina General Assembly, House Elections Committee (March 12, 2013) at 6.
115 Matthew Burns and Cullen Browder, House Plans Go-Slow Approach for Voter ID Bill, WRAL.com (March 5, 2013), http://www.wral.com/house-plans-go-slow-approach-for-voter-id-bill/12183528/. Estimates ranged from 300,000 to 600,000. The difference in numbers stemmed from the use of different methodologies employed by the SBOE in response to different questions asked by legislators in 2011 and 2013. For an explanation of the different methodologies see NORTH CAROLINA STATE BOARD OF ELECTIONS, MEMORANDUM FROM GARY O. BARTLETT TO NC HOUSE COMMITTEE ON ELECTIONS, RE: CORRECTIONS ON ALLEGATIONS AND MISINFORMATION PROVIDED BY VOTER ID PANELISTS (March 21, 2013).
JA1280
Case 1:13-cv-00660-TDS-JEP Document 117-7 Filed 05/19/14 Page 34 of 91
35
Brennan Center for Justice at the New York University Law School, presented evidence against
adopting the measure. Hall denied that voter fraud was a problem that needed addressing by a
photo ID and pointed out the contradiction that although irregularities in mail-in absentee ballot
voting were widely acknowledged as a greater problem than voter impersonation, the bill
required no form of photo identification with respect to mail-in absentee voting. As a matter of
fact, a greater proportion of Republicans utilized absentee ballots than did Democrats. Riggs
argued that African Americans would suffer disproportionately under the photo identification
proposal because a far greater percentage of blacks than whites did not have a driver’s license.
And, Gaskins suggested that any voter identification measure should allow, as Virginia’s law
did, for alternative documents to verify a person’s identification, such as utility bills and bank
statements.116 A less draconian statute would reduce the disparate impact on African Americans
and would cut down on the costs of providing a free card.117
42. The committee also heard from two strong proponents of the voter identification
measure. Francis DeLuca of the Civitas Institute denied that voter fraud was a minor issue and
unworthy of adopting photo identification. He alleged that same-day voter registration invited
people to vote in a number of places in a county under other names. Hans von Spakovsky, who
had worked in the U.S. Justice Department’s Civil Rights Division in the administration of
President George W. Bush and was currently a senior legal fellow at the Heritage Foundation,
116 Beginning in July 2014, there will be changes to Virginia’s existing voter ID requirements pursuant to a bill signed into law in May 2013. See VIRGINIA STATE BOARD OF ELECTIONS, VOTING IN PERSON, http://www.sbe.virginia.gov/votinginperson.html.
117 Transcript of Hearings of the North Carolina General Assembly, House Elections Committee (March 13, 2013); Matthew Burns, House Panel Hears More Pros, Cons to Voter ID, WRAL.com (March 13, 2013), http://www.wral.com/house-panel-hears-more-pros-cons-to-voter-id/12217911/. During the 2012 elections, Republicans mailed in 108,522 absentee ballots, while Democrats mailed in 62,210 ballots. See Rob Christensen, GOP Goes after the Wrong Kind of Voter Fraud, NEWS AND OBSERVER, Apr. 13, 2013.
JA1281
Case 1:13-cv-00660-TDS-JEP Document 117-7 Filed 05/19/14 Page 35 of 91
36
rejected the argument that photo identification measures were aimed at African Americans and
were a throwback to the days of racial segregation and disfranchisement. “This is not Jim Crow,”
von Spakovsky told lawmakers while holding up his driver's license. “This is not a police dog.
This is not a fire hose,” referring to the harsh police treatment of demonstrators during the civil
rights era. He produced statistics from Georgia that he said showed black voter turnout growing,
not declining, after the Peach State passed its photo voter identification law.118 Yet as Hall and
others had noted, the rise in black turnout in Georgia in 2008 and 2012 had come in spite of
photo identification and mainly as a result of competitive elections and the presence of Barack
Obama at the head of the Democratic ticket.119
43. Around this time in early March 2013, Governor McCrory weighed in on whether the
photo identification measure exacted an unnecessary burden. “I think Voter ID is what you need
to get Sudafed in the stores right now,” he asserted. “It’s what you need to get on a plane. It’s
what you need to get many government services.” Even so, he expressed confidence that
lawmakers were “developing safeguards for those without an ID.”
120
44. Perhaps recognizing the lack of empirical support for voter ID as an effective antifraud
measure, on March 16, 2013, Speaker Tillis shifted the rationale of supporters of the photo
identification bill. In a televised interview with MSNBC’s Craig Melvin, Speaker Tillis seemed
118 Transcript of Hearings of the North Carolina General Assembly, House Elections Committee (March 13, 2013) at 39; Matthew Burns, House Panel Hears More Pros, Cons to Voter ID, WRAL.com (March 13, 2013), http://www.wral.com/house-panel-hears-more-pros-cons-to-voter-id/12217911/.
119 For competing analyses of voter fraud nationally I JOHN FUND AND HANS VON SPAKOVSKY, WHOSE COUNTING?: HOW FRAUDSTERS AND BUREAUCRATS PUT YOUR VOTE AT RISK (2012) and RICHARD L. HASEN, THE VOTING WARS FROM FLORIDA 2000 TO THE NEXT ELECTION MELTDOWN (2012).
120 Mark Binker, McCrory Backs Voter ID, WRAL.com (March 5, 2013), http://www.wral.com/mccrory-backs-voter-id-and-pink-licenses-of-daca-immigrants-asks-mayors-for-help-with-drug-courts/12186084/.
JA1282
Case 1:13-cv-00660-TDS-JEP Document 117-7 Filed 05/19/14 Page 36 of 91
37
to backtrack after he was asked about the SBOE figures documenting only 310 cases of improper
voting of 4 million votes cast in 2008: “There is some evidence of voter fraud but that’s not the
primary reason for doing this.” Instead, Tillis now explained his party’s motivation: “We call this
restoring confidence in government. There are a lot of people who are just concerned with the
potential risk of fraud.” [emphasis added] He pointed out that polls showed 75 percent of North
Carolinians favoring photo identification for voting.121
45. Continuing the hearings on April 3, 2013, the committee brought in two election officials
from Georgia and Florida to discuss photo identification and other matters related to voting.
Brian Kemp, the Georgia Secretary of State, reaffirmed the arguments of the proponents of photo
voter identification. Kemp testified that his state’s voter identification law had not proved a
hardship and over a six-year period the state board of elections only had to issue some 30,000
identification cards to those without one. He also pointed out that Georgia had spent $1.7 million
to fund the distribution of these photo ID’s, a cost that Bert Jones, a Republican member of the
committee, did not find excessive.
122 Ion Sancho, the supervisor of elections for Leon County
(Tallahassee), Florida, pointed out that “In-person voter impersonation fraud…[w]e see almost
none of that.”123
121 Laura Leslie, Tillis: Fraud ‘Not the Primary Reason’ for Voter ID Push, WRAL.com (March 17, 2013), http://www.wral.com/tillis-actual-voter-fraud-not-the-primary-reason-for-voter-id-push-/12231514/. Tillis also related that the Republican bill at that stage permitted state college students to use a student ID and those on government assistance to use the agency ID.
He affirmed what others had said: the real source of fraud came from absentee
ballots and the submission of fraudulent voter registration forms, neither of which photo
122 Transcript of Hearings of the North Carolina General Assembly, House Elections Committee (Apr. 3, 2013) at. 18-31, 39.
123 Id. at 78.
JA1283
Case 1:13-cv-00660-TDS-JEP Document 117-7 Filed 05/19/14 Page 37 of 91
38
identification remedied.124 He also revealed that Florida accepted alternatives to photo
identification in the form of student identification and public assistance identification; moreover,
if individuals cast a provisional ballot without a photo ID, they would not have to provide photo
identification after the election. The provisional ballot is counted as long as the signature on the
provisional ballot envelope matches the signature on file from the voter’s voter registration
form.125
46. Although HB 589 in its form at that point dealt only with the photo identification issue,
Sancho talked about his state’s experience with early voting. Before 2012, Florida provided for
two weeks of early, in-person voting. However, in the 2012 elections, the Sunshine State cut the
early voting period to 8 days, which resulted in very long lines on Election Day with an
estimated 225,000 people prevented from casting a ballot. The Florida rollback had also
eliminated voting on the final Sunday before Election Day, which markedly affected African
Americans especially in restricting their “Souls to the Polls” church voter mobilization efforts.
The reduction in early voting, according to Sancho, proved “a nightmare.”
126 (In 2013, Florida
restored early voting to fourteen days.)127
124 Id.
Representative Edgar Starnes, who in the previous
session had co-sponsored HB 658, reducing early voting by seven days, said he was surprised to
hear Sancho’s presentation. He claimed that he only wanted to make early voting operate more
125 Id.at 76.
126 Id.at 78; Mark Binker and Matthew Burns, Florida Official: Cutting Early Voting Times A Mistake, WRAL.com (April 2, 2011), http://www.wral.com/florida-official-cutting-early-voting-times-was-a-mistake/12300795/. For a scholarly study of the negative impact of cuts in early voting including a Sunday, see Michael C. Herron and Daniel A. Smith, Souls to the Polls: Early Voting in Florida in the Shadow of House Bill 1355, 11 ELECTION L. J. 331 (2012).
127 Rick Scott Signs Law Restoring Florida's Early Voting, Limiting Ballot Length, Expanding Polling Places, HUFFPOST MIAMI (May 22, 2013), http://www.huffingtonpost.com/2013/05/22/rick-scott-early-voting_n_3318776 html.
JA1284
Case 1:13-cv-00660-TDS-JEP Document 117-7 Filed 05/19/14 Page 38 of 91
39
efficiently and had no intention “to deny anyone the right to vote.” He did not understand why
“blacks took it as an attempt to suppress their vote, because that was never my intent at all.”128
His statement came even though in previous discussions of early voting there had been ample
evidence that African Americans in North Carolina used early voting in percentages exceeding
their share of the state’s registered black voters. Still, the current debate focused mainly on voter
identification, the subject of HB 589, and the insertion of early voting restrictions was yet to
come.129
47. Introduced into the House on April 4, 2013, this version of HB 589 was less restrictive
than its predecessor HB 351, adopted by the General Assembly in 2011 but vetoed by the
governor. House Speaker Thom Tillis acknowledged that the new measure was “very different
than the bill we tried to pass last year. It has tried to take into account a number of the concerns
that were raised. It is a bill we are very confident will withstand any challenge that may come to
us by way of the courts.” Tillis bragged that the House had run “a transparent” process, in
holding hearings and incorporating some of the recommendations of witnesses in the bill.
130
128 Mark Binker and Matthew Burns, Florida Official: Cutting Early Voting Times A Mistake, WRAL.com (Apr. 2, 2011), http://www.wral.com/florida-official-cutting-early-voting-times-was-a-mistake/12300795/. Starnes had to leave the hearing before Sancho testified; he spoke to reporters afterward.
Chiefly, the new proposal put off until 2016 the date for requiring photo identification to vote,
giving those without one three years to obtain the necessary identification. For the transition
period, the measure established a Voter Information Verification Advisory board to disseminate
129 The committee also heard dozens of witnesses from the public representing both sides of the issue and repeating what had become familiar arguments around voter suppression versus fraud prevention. See Transcripts of Hearings of the North Carolina General Assembly, House Elections Committee (Apr. 3, 8, and 10, 2013).
130 Rob Christensen, GOP Rolls Out Less Restrictive NC Voter ID Bill, NEWS AND OBSERVER, Apr. 4, 2013. See also remarks of Representative David Lewis, Transcript of Floor Debate of the North Carolina General Assembly, House of Representatives (Apr. 24, 2013) at 42-43.
JA1285
Case 1:13-cv-00660-TDS-JEP Document 117-7 Filed 05/19/14 Page 39 of 91
40
information and prepare voters in implementing the new photo identification requirements. In
addition to a North Carolina driver’s license, the bill considered the following an acceptable but
not exclusive list of documents: any photo identification “issued by a branch, department,
agency, or entity of the United States, NC, or any other state,” including but not restricted to a
passport or US military identification card; North Carolina special identification card; University
of North Carolina student identification card; North Carolina community college identification
card; and identification cards issued for a program of government assistance. Seniors over 70
years of age could use a driver’s license that had not expired before the day they turned seventy.
A voter who did not bring one of the approved identification forms to the polls could vote
provisionally but was required to return to the county board of elections and show one of the
designated identification cards to have his or her ballot counted. Any voter without a photo
driver’s license could obtain a special card from the Motor Vehicle Bureau for a fee of $20-$32.
The fee would be waived if applicants swore under penalty of perjury—a felony—that they were
too poor to pay.131
48. Opponents continued to point out the bill’s weaknesses. In particular, elected
representatives of the black community pointed to its disproportionate impact on their
constituents. On April 10, 2013, the Legislative Black Caucus met with Governor McCrory to
express its concerns with the measure. After the meeting, McCrory declared that the participants
131 NORTH CAROLINA HOUSE OF REPRESENTATIVES APPROPRIATIONS COMMITTEE, HOUSE BILL 589: VIVA, (Apr. 23, 2013); H.B. 589, 2013-2014 Sess. (N.C. 2013), Fifth Edition Engrossed (as passed by N.C. House April 24, 2013); Rob Christensen, GOP Rolls Out Less Restrictive Voter ID Bill, CHARLOTTE OBSERVER, Apr. 5, 2013.
JA1286
Case 1:13-cv-00660-TDS-JEP Document 117-7 Filed 05/19/14 Page 40 of 91
41
had “agreed to disagree” and he reaffirmed his intention “to sign an ID bill on the conclusion of
these public hearings.”132
49. April 10 brought one last round of hearings with few surprises. Members of the public on
both sides of the issue repeated the same arguments that had been heard before. After the House
Elections Committee approved the measure, Republican lawmakers continued to insist that their
photo ID bill was not discriminatory. “We’re not trying to suppress anybody,” Representative
Michael Speciale declared. “We are not trying to oppress anybody. It has nothing to do with
race. Stop trying to debase the issue.”
133 Instead, Speciale, a first-term representative, accused
the NAACP and its president, William J. Barber II, of making “inappropriate and racist”
comments, manufacturing “racial diatribes,” and acting as “race opportunists” in seeking to stir
up racial animosities among African Americans against a “common-sense” identification bill.134
50. HB 589 vaulted two more hurdles before reaching the House floor. In mid-April 2013,
the bill cleared the House Finance Committee by an 18-10 vote along party lines. In analyzing
the costs of implementing voter identification, the committee placed a low estimate of less than
$1 million the first year in furnishing free voter cards and roughly $24,000 a year thereafter,
This was one of the few times that racial expressions appeared overtly in the legislative debate.
But it illustrates how, despite the GOP rhetoric framed around voter integrity and protecting the
ballot, race loomed just below the surface.
132 Jim Morrill, Governor Pat McCrory Meets with Black Lawmakers, Educators, CHARLOTTE OBSERVER, Apr. 10, 2013.
133 Matthew Burns and Laura Leslie, Voter ID Proposal Advances in House, WRAL.com (Apr. 18, 2013), http://www.wral.com/voter-id-proposal-debated/12350778/.
134 Laura Leslie, House Freshman Calls NAACP Chief 'racist' in Email, WRAL.com (Jan. 31, 2013), http://www.wral.com/house-freshman-calls-naacp-chief-racist-/12050778/.
JA1287
Case 1:13-cv-00660-TDS-JEP Document 117-7 Filed 05/19/14 Page 41 of 91
42
basing its estimates on the experience in Georgia over six years. In addition, North Carolina
would have to spend over $2.5 million over the next four years on outreach efforts assigned to
the Voter Information Verification Advisory board.135
The House Passes HB 589
The bill next passed the House
Appropriations Committee also along party lines.
51. On April 23, 2013, HB 589 came up for debate on the House Floor. A few days earlier on
April 17, 2013, the State Board of Elections had released a memorandum detailing how it
produced an updated analysis of the number of North Carolinians without a state driver’s license.
The state board had prepared this report “as a result of various legislative and media inquiries
concerning the possible number of registered voters who may not have NCDMV [North Carolina
Department of Motor Vehicle]-issued photo identification.136 It compared voter registration lists
with the Department of Motor Vehicle’s driver’s license lists and found the names of 318,643
registered voters without a driver’s license match. Of this number, 107,681, about a third, were
African American. Considering the category of active voters only, the SBOE came up with the
figure of 138,425 registered voters without a driver’s license, 49,261, or 36 percent, of them
African American, a substantial number.137
52. Opponents of HB 589 tried to amend the bill to allow other forms of identification. One
proposal permitted voters without photo identification vote if two officials at the polls vouched
135 Mark Binker, Voter ID to Cost State about $3.5 million, WRAL.com (Apr. 18, 2013), http://www.wral.com/voter-id-advances-through-second-committee/12355343/.
136 NORTH CAROLINA STATE BOARD OF ELECTIONS, APRIL 2013SBOE-DMV ID ANALYSIS (Apr. 17, 2013).
137 Id.
JA1288
Case 1:13-cv-00660-TDS-JEP Document 117-7 Filed 05/19/14 Page 42 of 91
43
for their identity.138 Still another suggested that election officials allow voters lacking authorized
photo identification to vote if they signed an affidavit attesting to their identity under penalty of
perjury, without having to return with the designated identification.139 Another amendment
would have authorized the use of student identification cards from private colleges in North
Carolina to conform to the bill’s provision to accept state college identification. 140 The majority
easily defeated all of these amendments. Lawmakers advanced a series of justifications for
rejecting these amendments, including their desire to maintain uniformity in photo identification
procedures or their desire to permit only state government-issued identification. Yet consistency
did not always matter. When Representative Darren G. Jackson, a Wake County Democrat,
introduced an amendment applying the photo identification provision to mail-in absentee ballots,
where fraud had been proven to exist, lawmakers handily rejected it, 78-39.141
53. In offering these amendments, the bill’s opponents argued that anecdotal evidence of
fraud should not guide the making of legislation. Conceding that measures to ensure confidence
in the electoral system are important, they nonetheless insisted that when such measures restrict
access to the ballot, they must be balanced by the “burdens they create.” Representative Rick
Glazier of Cumberland compared the bill to “using a sledgehammer to hit either a real or
138 Transcript of Floor Debate of the North Carolina General Assembly, House of Representatives (Apr. 24, 2013) at 103.
139 Id. at 124-25.
140 Id. at 78.
141 Id. at 66-67; Matthew Burns, House Approves Voter ID, WRAL.com (Apr. 25, 2013), http://www.wral.com/house-approves-voter-id/12376662/. At that time, voters could request an absentee ballot by mail simply sending a written request to the county board of elections including the following information: a statement indicating the voter was requesting an absentee ballot of a specific election; voter’s name; voter’s DOB; residential address; address where ballot should be mailed (if different from residential address); telephone number or email address; and voter’s signature. NORTH CAROLINA STATE BOARD OF ELECTIONS, CIVILIAN ABSENTEE VOTING IN NORTH CAROLINA (Feb. 2012).
JA1289
Case 1:13-cv-00660-TDS-JEP Document 117-7 Filed 05/19/14 Page 43 of 91
44
imaginary fly on a glass coffee table.” He warned his colleagues: “Lawmaking that places a
higher priority on preventing hypothetical harm rather than protecting actual rights seemingly
adopts William Faulkner’s rumination that there is a might have been which is more true than the
truth.”142 The majority remained unwavering, and on April 24, 2013, the House passed HB 589
by a vote of 81-36.143
The Senate’s Transformation of HB 589
54. The House version of HB 589 applied mainly to photo identification for elections. It did
not include any provisions related to early voting or other reforms enacted by the General
Assembly since 1999. Indeed, discussions in committees and on the floor of the House dealt
principally with the photo identification requirement. After the House sent HB 589 to the Senate,
it remained in the Rules Committee for several months. The Senate delayed as it waited for the
outcome of a U.S. Supreme Court case from Alabama challenging key provisions of the 1965
Voting Rights Act. Rules Committee chair, Tom Apodaca told reporters that he and his
colleagues were holding off until the Supreme Court’s ruling because the “Senate didn’t want the
legal headaches of having to go through pre-clearance [under Section 5 of the Voting Rights Act]
if it wasn’t necessary and having to determine which portions of the proposal would be subject to
142 Transcript of Floor Debate of the North Carolina General Assembly, House of Representatives (Apr. 24, 2013) at 138, 140.
143 Rob Christensen, Voter ID One Step Closer to become State Law, NEWS AND OBSERVER, Apr. 24, 2013. Five Democrats who broke party ranks were William D. Brisson of Dublin, Ken Goodman of Rockingham, Charles Graham of Lumberton, Paul Tine of Kitty Hawk and Ken Waddell of Chadbourn. Taking note of only five Democrats in the majority, Speaker Tillis nevertheless praised lawmakers for providing a “strong message of bipartisanship on such an important, and at times controversial, issue,” and hailed this outcome as “a testament to the hard work and dedication of the House members who remained committed to this effort for many months.” Press Release, Office of the Speaker, Representative Tom Tillis, In Historic Bipartisan Vote, House Passes Voter ID Bill, (Apr. 24, 2013).
JA1290
Case 1:13-cv-00660-TDS-JEP Document 117-7 Filed 05/19/14 Page 44 of 91
45
federal scrutiny.”144 On June 25, 2013, the high court’s ruling in Shelby County v. Holder
delighted proponents of franchise restrictions and pushed their plans forward. The decision
scuttled the act’s coverage formula, thereby releasing the Tar Heel State from federal
preclearance.145 The same day the Supreme Court released its decision, Apodaca told WRAL
reporter Laura Leslie “We can go with the full bill.” According to Leslie, “he predicted an
omnibus voting bill would surface in the Senate next week that could go beyond voter ID to
include issues such as reducing early voting, eliminating Sunday voting and barring same-day
voter registration.”146
55. On July 23, the Senate Rules Committee deliberated on the revised, now omnibus, bill.
The committee majority removed state university and community college identification cards
from the approved list of photo identification for voting, a major departure from the House bill.
From the House bill’s non-exclusive list, they also eliminated employee identification and
identification cards given to those on public assistance, which would hit African Americans and
the poor hardest. In contrast to the original House bill, the Senate made its list of identification
documents exclusive, thereby precluding the use of any other forms of identification. Yet the
However, the omnibus measure did not come up for discussion in the
Senate until July 23, nearly a month after Shelby. Senate leaders chose to bring up the revised
bill at the end of the legislative session, just a few days before it closed. When finally brought up
for consideration, this new radically altered measure would reverse many of the reforms of the
previous decade.
144 Laura Leslie, NC Voter ID bill Moving Ahead with Supreme Court Ruling, WRAL.com (June 25, 2013), http://www.wral.com/nc-senator-voter-id-bill-moving-ahead-with-ruling/12591669/.
145 Shelby County v. Holder, 570 US__ (2013).
146 Laura Leslie, NC Voter ID bill Moving Ahead with Supreme Court Ruling, WRAL.com (June 25, 2013), http://www.wral.com/nc-senator-voter-id-bill-moving-ahead-with-ruling/12591669/. Apodaca probably meant eliminating one-day of Sunday voting rather than removing it entirely.
JA1291
Case 1:13-cv-00660-TDS-JEP Document 117-7 Filed 05/19/14 Page 45 of 91
46
modified bill did not require mail-in absentee voters to furnish photo identification if they did not
have one. Instead, it allowed the prospective absentee voter to supply the last four digits of a
Social Security number, a provision not afforded in-person early voters without photo
identification.147
56. In the Rules Committee hearings on July 23, 2013, Senator Bob Rucho of Mecklenburg,
a leading proponent of the measure, observed that supporters wanted to restore “transparency” to
the election process. “[W]hat we do have before us,” he asserted, “is a reform of an outdated and
archaic form of State election code that hasn’t been adjusted in many years, at least three
decades.”
148
147 Mark Binker, Voter ID in Senate Rules Committee Friday, WRAL.com (July 18, 2013), http://www.wral.com/voter-id-in-senate-rules-committee-friday/12676915/.
In making this presentation, Rucho spoke for his majority colleagues in framing HB
589 as a reform measure, a desire for good government procedures that protected the integrity of
the ballot box. However, Rucho’s assertion was incorrect and based on a faulty assumption.
First, this bill did not revise an “outdated” election code unchanged in three decades. As I have
already explained, the code had been repeatedly amended between 1999 to 2007 to expand
access to the polls and make it easier for every citizen who desired it to vote, especially African
Americans. Second, Rucho’s and his colleagues’ remarks in defending their bill as a reform
measure echoed the rationalizations provided by lawmakers in North Carolina and elsewhere
throughout the South at the turn of the twentieth century who invoked preventing voter fraud and
promoting clean government as reasons for passing restrictive constitutional amendments and
legislation, which mainly disfranchised African Americans. Of course, HB 589 did not contain
literacy tests, poll taxes, grandfather clauses, or white primaries—the measures used to
148 Transcript of Hearing of the North Carolina General Assembly, Senate Rules Committee (July 23, 2013) at 2.
JA1292
Case 1:13-cv-00660-TDS-JEP Document 117-7 Filed 05/19/14 Page 46 of 91
47
disfranchise the majority of earlier generations of African Americans. Much had changed in the
South since 1965 and such legislation was no longer legal. Still, more subtle forms of racial
disfranchisement had not disappeared from politics, and efforts to enact laws neutral on their
face but damaging to African Americans persisted.149
57. By the time the Senate Rules Committee met, lawmakers had to pass by demonstrators
who had planted pink flamingoes in the grass along the Statehouse’s front lawn. In doing so,
they wanted to remind lawmakers in a vivid manner of the Florida Election Day disaster after the
state legislature had reduced the early voting period in 2012, thereby creating long lines at the
polls and keeping an estimated quarter of a million people from casting a ballot.
The Tar Heel Senate combined the photo
identification bill with other proposals designed to reverse a decade’s worth of reform.
150 These
protesters were part of a growing movement of people, called Moral Mondays. The state
NAACP had begun mobilizing North Carolina residents in April 2013 in a campaign against
policies adopted by the conservative majority in the General Assembly. Not only did they target
photo identification and other restrictions on voting, but they protested cutbacks to education,
reduction of state unemployment benefits, the elimination of the earned-income tax credit,
restrictions on abortions, and reduction of taxes on the wealthy.151 Utilizing peaceful civil
disobedience, during more than six months of demonstrations thousands of participants, black
and white, gathered in protest at the seat of government in Raleigh.152
149 J. MORGAN KOUSSER, COLORBLIND INJUSTICE: MINORITY VOTING RIGHTS AND THE UNDOING OF THE SECOND RECONSTRUCTION (1999).
150 John Frank, Senate GOP Crafts Last-minute Election Bill, CHARLOTTE OBSERVER, July 23, 2013.
151 Ari Berman, North Carolina’s Moral Mondays, THE NATION, July 17, 2013.
152 John Frank, Senate GOP Crafts Last-minute Election Bill, CHARLOTTE OBSERVER, July 23, 2013. Subsequently, the McCrory administration refused to grant a permit for Moral Mondays to protest at the State Capital, but a
JA1293
Case 1:13-cv-00660-TDS-JEP Document 117-7 Filed 05/19/14 Page 47 of 91
48
58. Undaunted by these protests, the Rules Committee held a two-hour hearing and heard
from ten witnesses, all of whom testified against the bill. They represented the NAACP; student
groups; the elderly; non-partisan, progressive organizations such as Democracy North Carolina
and Southern Coalition for Social Justice; and high school and college teachers. They attacked
the bill for making it more difficult for minorities, college students, and the poor to cast ballots.
They emphasized once again, as prior opponents of the bill had done, studies that showed
African Americans were least likely to have state-approved photo identification and most likely
to take advantage of early, in-person voting and same-day registration. No proponents of the bill
testified in this hearing. Nevertheless, adoption of the measure was a foregone conclusion. In
what the news media called “a hasty voice vote,” the committee passed the bill.153
Senate Passes HB 589
59. The next day, July 24, the revised HB 589, now an omnibus bill containing features
restricting early and provisional voting as well as same-day registration, moved to the Senate
floor for debate. The bill had expanded from sixteen to fifty-seven pages. Aware that they did not Superior Court judge in Raleigh granted the NAACP permission to rally. The judge ruled that the administration's ban on the NAACP was "either discretionary or content based. Matthew Burns, Legal Fight to Rally at Capital Precursor to 2014 Battle, WRAL.com (Dec. 23, 2013), http://www.wral.com/legal-fight-to-rally-at-capitol-precursor-to-2014-battle/13241916/.
153 Transcript of Hearing of the North Carolina General Assembly, Senate Rules Committee (July 23, 2013); Matthew Burns and Renee Chou, Election Changes Advance in Senate, WRAL.com (July 23, 2013), http://www.wral.com/elections-changes-advance-in-senate/12693772/. The bill also reversed the policy that had allowed sixteen and seventeen-year olds the opportunity to sign up to register automatically when they turned eighteen and it kept county election boards from extending early voting hours if necessary on the Saturday before Election Day. It also eliminated provisional voting if a person showed up in the wrong precinct within the correct county. The bill did benefit seniors and the disabled. It allowed people to use photo identification that had not expired before the individual reached the age of seventy and it provided curbside voting for the disabled without having to show prescribed photo identification. It should be noted that this special dispensation for voters over seventy would disproportionately benefit whites, as they comprised this demographic group to a far greater degree than blacks. The provision that eliminated early registration for sixteen and 17-year olds, however, worked against blacks who constituted a disproportionate share of this age group. Michael C. Herron and Daniel A. Smith, Race, Shelby County, and the Voter Information Verification Act in North Carolina, 38-43 (Feb. 12, 2014) (forthcoming); Travis Fain, GOP Bill Rewrites State Laws on Voting, NEWS AND RECORD, July 24, 2013.
JA1294
Case 1:13-cv-00660-TDS-JEP Document 117-7 Filed 05/19/14 Page 48 of 91
49
have the votes to defeat the bill, opponents offered amendments to ease some of its restrictions.
In doing so, they furnished charts and provided data on the negative effects the proposed
measure would have on African American voters. Senator Josh Stein of Wake County provided
his colleagues with a four-page chart showing that “African-Americans disproportionately vote
on the first seven days of early voting, which coincidentally are the days you are stripping.”154
Stein also provided each senator a study by two scholars showing that when Florida had reduced
early voting it had a disproportionate impact of African-American and Hispanic voters.155
60. The bill’s proponents held their ground. Without empirical support, Senator Ralph Hise, a
Republican from Madison, floated the counterintuitive suggestion that “the lack of voter ID
might have suppressed minority participation in recent North Carolina elections,” though in
reality black voter turnout had greatly increased without an identification requirement.
Stein
proposed restoring the number of early voting days to seventeen for presidential elections while
leaving it at ten for all midterm elections. The turnout was particularly heavy in presidential
contests and as the past two elections indicated African Americans had participated in record
numbers.
156
154 Transcript of Floor Debate of the North Carolina General Assembly, Senate (July 24, 2013) at 16-18.
This
contention flew in the face of all available evidence concerning the impact of photo identification
on potential voters and especially African Americans. Senator Rucho took a different approach
against the Stein amendment. He argued that the number of days of early voting should be
155 Id. at 18. The study is Michael C. Herron and Daniel A. Smith, Souls to the Polls: Early Voting in Florida in the Shadow of House Bill 1355, 11 ELECTION L. J. 331 (2012). Senator Angela Bryant offered a graph with data showing that African Americans would be disproportionately affected by the elimination of straight-ticket voting, which HB 589 contained. See Transcript of Floor Debate of the North Carolina General Assembly, Senate (July 24, 2013) at 104-107.
156 Matthew Burns, Senate Backs Sweeping Elections Bill, WRAL.com (July 24, 2013), http://www.wral.com/senate-backs-sweeping-elections-bill/12699232/.
JA1295
Case 1:13-cv-00660-TDS-JEP Document 117-7 Filed 05/19/14 Page 49 of 91
50
decreased uniformly across the board, because he opposed giving what he characterized as
preferential treatment to voters in presidential elections in comparison to off-year elections.157
61. Stein then proposed another amendment that, although it left in place the omnibus bill’s
reduction in the number of early voting days (from 17 to 10), required that polling places be kept
open for the same total number of hours as in the previous presidential and off-year elections. He
recognized that his suggestion would “not eliminate the impact on minority communities,” but
asserted that it would at least diminish the impact somewhat.
The Senate voted down Stein’s amendment.
158 This time, the majority supported
the amendment and it passed, 47-1. Notably, a later amendment introduced by Senator Rucho,
which passed, provides county boards an option to submit a request to the State Board of
Elections for a waiver of these early voting hour requirements.159
62. Several African-American senators underscored their belief that race was at the heart of
this voter law. Senator Angela R. Bryant took great care in talking to her white colleagues “about
issues of racial and culture differences” because she knew “how easy it is for it to be taken
personally or taken in the wrong way.” She delicately chose the words, “disproportionate use,”
“negative racial impact,” and “racial disparity” in discussing the effect the bill would have on
black voters. She did not call HB 589 or its proponents “racist,” but she made it clear that the
measure “has a negative racial impact…. And it is that impact that would have legal and
However, all other
amendments to restore same-day registration and the inclusion of college student identification
cards were either tabled or voted down.
157 Transcript of Floor Debate of the North Carolina General Assembly, Senate (July 24, 2013) at 19.
158 Id. at 29.
159 Transcript of Floor Debate of the North Carolina General Assembly, Senate (July 25, 2013) at 7, 9.
JA1296
Case 1:13-cv-00660-TDS-JEP Document 117-7 Filed 05/19/14 Page 50 of 91
51
constitutional consequences, not whether somebody intended purposefully to do it or not.”160 By
contrast, Senator Earline W. Parmon of Forsyth County did not mince words. She denounced the
bill as “immoral… evil…and unnecessary.” “And I tell you,” she continued, “I am offended as a
North Carolinian and as an African American woman to be discussing here today on this floor
barriers to suppress the vote.”161 Senator Joel Ford, a first-term lawmaker from Charlotte,
reminded his colleagues that he had sponsored a measure for a voter identification bill that
“would have guaranteed that no registered voter is denied the right to vote and to prevent the
unauthorized use of a registered voter's voting privilege through the fraudulent misuse of…a
registered voter's identity.” However, he could not support HB 589 because it “is not voter
reform; this is voter suppression.” Ford argued, “This bill goes beyond protecting…the integrity
of the process…it restricts access to voting. To me, this is un-American”162 One of his white
colleagues, Senator Martin L. Nesbitt, Jr. of Buncombe County, urged the legislative majority to
listen to these complaints. “When somebody points out to you that you’re hurting a group of
people,” Nesbitt remarked, “it doesn’t mean that you’ve got a bad heart; it means that you got
bad facts, and they’re trying to tell you that.”163
63. Neither impassioned statements nor solid statistical data moved the bill’s supporters.
Senator Rucho responded to Senator Bryant that he was “never aware” of the charts and tables
that she and Senator Stein presented.
164
160 Transcript of Floor Debate of the North Carolina General Assembly, Senate (July 24, 2013) at 109.
He went on to insist that “I don’t look at race as who is
161 Id. at 80.
162 Id. at 14-15. Ford was a co-sponsor of SB 235. It was referred to the Rules Committee but not voted on.
163 Id. at 137.
164 Id. at 108.
JA1297
Case 1:13-cv-00660-TDS-JEP Document 117-7 Filed 05/19/14 Page 51 of 91
52
going to vote.”165 Accepting the sincerity of the senator’s remarks does not conflict with the
notion, as expressed by Judge Kozinski, that people without racial animus can intentionally take
action designed to produce a negative effect on racial and ethnic minorities.166
64. Undeterred, on July 25, 2013, the Senate majority passed its omnibus version of HB 589
along party lines, 33-14. Among other provisions, its version of the bill was stricter than the
House’s by reducing the list of acceptable photo identification options.
Rucho may not
have seen race, but he did have before him facts and figures showing that imposing photo
identification, modifying early voting, and eliminating same-day registration would reduce
opportunities for registered blacks to vote to a much greater degree than for whites.
167 In so doing, the Senate
leadership abandoned House Speaker Tillis’s pledge made in January that the General Assembly
would be flexible in accepting alternative forms of identification.168
In addition to the
identification provision, the Senate bill also reduced early voting to 10 days; eliminated
provisional voting at the wrong precinct; banned same-day registration; prohibited counties from
keeping polls open up to an additional four hours on the Saturday before Election Day or
extending poll hours by an hour on Election Day in case of long lines; and banned straight-ticket
voting, among other provisions.
165 Id. at 109.
166 See, supra ¶9.
167 Ari Berman, North Carolina Republicans Push Harsh New Voter I.D. Law, THE NATION (July 18, 2013).
168 See, supra ¶39.
JA1298
Case 1:13-cv-00660-TDS-JEP Document 117-7 Filed 05/19/14 Page 52 of 91
53
House Concurs in Passage of the Revised, Omnibus Version of HB 589
65. That same day the Senate leaders rushed the bill to the entire House, rather than to a
conference committee. When the bill arrived in the House, instead of sending the bill back to the
elections committee or to a conference committee, top House leaders decided to put the Senate-
passed version up for a concurrence vote with scant time for lawmakers to consider all the
changes that had been made to the bill since initial House approval back in April. This procedure
required only an up or down vote on the bill with no opportunity for amendments. Representative
Mickey Michaux of Durham offered a motion to place the House in the Committee of the Whole,
a procedural move that would have allowed time for discussion, an opportunity to vet the bill,
and offer amendments to it. Treating this as a waste of time, the majority rejected Michaux’s
motion 69-41.169 Introducing the new, expanded version of H.B. 589 on July 25, 2013,
Representative Harry J. Warren incorrectly informed his colleagues that “very few substantive
changes” had been made to the photo identification part of the bill, though he admitted that the
Senate had sliced the number of acceptable proofs of identification for voting from thirteen to
seven.170
169 Transcript of Floor Debate of the North Carolina General Assembly, House of Representatives (July 25, 2013) at 3-6.
More to the point, the remainder of the measure had changed enormously to include
restrictive provisions on early voting, counting of out-of-precinct ballots, and same-day
registration, none of which had been in the House’s original version of the bill. Even John Blust,
a Republican from Guilford County and a supporter of the final bill, complained that the measure
170 Id. at 13.
JA1299
Case 1:13-cv-00660-TDS-JEP Document 117-7 Filed 05/19/14 Page 53 of 91
54
“was received by the House at 6:11 p.m. on the last night of the session for concurrence only. I
readily admit this is not a good practice.”171
66. African-American representatives took charge of the discussion and argued that the bill
suppressed voters rather than protecting voters. Representative Michaux delivered perhaps the
most impassioned speech of the evening session. “I want you to understand what this bill means
to people. We have fought for, died for and struggled for our right to vote,” Michaux fumed,
“You can take these 57 pages of abomination [HB 589] and confine them to the streets of hell for
an eternity.”
172 His Durham colleague, Larry D. Hall, dubbed the Voter Information and
Verification Act the “Voter Intimidation and Vilification Act.”173
67. In response to the bill’s opponents on the House Floor, David Lewis, who had drafted
much of the original bill, summed up the case for the majority. The Harnett County lawmaker
denied that the voter identification requirement would disfranchise anyone and defended the
reductions to early voting as common sense precautions. He reasserted that “the people of this
state … care enough to get to the polls and vote.”
174
171 Doug Clark, Blust Says Voting Changes are Meant to Strike a ‘Proper Balance, NEWS AND RECORD, Dec. 18, 2013.
The Elections Committee chair noted that
the photo identification provision would not go into effect until 2016, and he asserted that this
would provide sufficient time for people without such identification to obtain it. In addition, the
172 Transcript of Floor Debate of the North Carolina General Assembly, House of Representatives (July 25, 2013) at 27-35.
173 Id. at 115; The Voter Information Verification Act (VIVA) applies only to the first six sections of the bill dealing with photo identification, but it has been used interchangeably with the entire law.
174 Transcript of Floor Debate of the North Carolina General Assembly, House of Representatives (July 25, 2013) at 120.
JA1300
Case 1:13-cv-00660-TDS-JEP Document 117-7 Filed 05/19/14 Page 54 of 91
55
Department of Motor Vehicles would provide a photo identification card for free.175 Asserting
that the bill did not ban Sunday early voting, he failed to acknowledge that reducing early voting
by a week knocked out one of the two Sundays that previously had been available. In defending
their handiwork in this final session, Lewis and the House majority chose to disregard much of
the arguments and evidence presented by foes of the bill, especially on the disparate effect the
full bill would have on African Americans in reducing opportunities for voting.176
68. The emotional tone of the debate grew out of frustration with the legislative majority for
choosing to ignore the evidence that the full bill would have a disproportional impact on African
American voters. Since 2011, when similar photo identification bills, rollbacks to early voting,
prohibition of same-day registration, and cutbacks in provisional voting had been deliberated in
the General Assembly, lawmakers had been presented with evidence demonstrating that African
Americans disproportionately lacked driver’s licenses, that they used early voting to a greater
degree than whites, and they took greater advantage of same-day registration and provisional
voting outside their precincts. The majority decided to willfully disregard this evidence furnished
by the SBOE, non-partisan groups, and academic scholars. Instead, throughout the process of
passing HB 589 proponents returned to their claim that the bill was an anti-fraud measure,
despite evidence of voter impersonation—the only form of fraud it addressed—was negligible.
177
175 He failed to address one of the major problems identified by the bill’s opponents. In order to get a free ID, an applicant had to produce a birth certificate. Many African Americans born in the segregated South were born at home and did not have a certified birth certificate. Others born outside North Carolina would have to pay money to obtain a certified birth certificate, which would prove a hardship on those who were poor.
176 Matthew Burns, Laura Leslie and Mark Binker, Voting Changes Head to Governor, WRAL.com (July 25, 26, 2013), http://www.wral.com/voting-changes-head-to-governor/12703982/.
177 For example, Senator Phil Berger, President Pro-Tempore and the original supporter of photo identification for voting, summed up this argument: “[HB 589] is a common sense measure to address concerns that a lot of people have about voting, about making sure that when people vote, they are who they say they are.” Ben Brown, Voter ID Bill, Proposed System Overhaul Prompts Protest in Wilmington, PORT CITY DAILY, July 25, 2013.
JA1301
Case 1:13-cv-00660-TDS-JEP Document 117-7 Filed 05/19/14 Page 55 of 91
56
Their invocation of Georgia’s experience with photo identification ignored the fact that the
Peach State allows voters to use a broader range of identification than their bill permitted.178
Despite testimony from a Florida supervisor of elections that in cutting back early voting for the
2012 election the Sunshine State had produced “nightmarish” problems of long lines and had
prevented some 225,000 voters, a large proportion of them minorities, from casting ballots, the
North Carolina bill’s supporters disregarded both that evidence and the fact that Florida was in
the process of restoring its original early voting period.179
69. One feature of the bill’s early voting reduction that was widely acknowledged to hurt
African Americans was the elimination of one Sunday from the two that had been available
during the previous seventeen-day period. House Majority Leader Edgar Starnes of Caldwell,
had introduced HB 451 on March 28, 2013, which banned early voting and same-day registration
completely on Sundays for ostensibly religious reasons. A week later, Starnes along with ten
Republicans co-sponsored another proposal, HB 494. This resolution would have allowed North
Carolina to declare an official religion, contrary to the First Amendment of the US Constitution,
and would have nullified any federal ruling against Christian prayer by public bodies in the state.
This offering smacked of the language used in measures enacted by southern segregationist
They papered over these problems by
adopting a largely cosmetic proposal to add the same number of early voting hours as in 2012 to
the reduced number of days.
178 Georgia Code, O.C.G.A 21-2-417 (2013). For example, voters can show a government issued state identification from any state and not just Georgia. This would include a student identification card from state universities and community colleges. It also allows expired driver’s licenses not limited to seniors over seventy-years-old.
179 Rick Scott Signs Law Restoring Florida’s Early Voting, HUFFINGTON POST (May 22, 2013), http://www.huffingtonpost.com/2013/05/22/rick-scott-early-voting_n_3318776 html.
JA1302
Case 1:13-cv-00660-TDS-JEP Document 117-7 Filed 05/19/14 Page 56 of 91
57
legislatures during the civil rights era to void federal court decisions on desegregation, a doctrine
of nullification without any constitutional validity.180
70. Reducing or eliminating Sunday voting would affect “Souls to the Polls” conducted by
African American churches.
181 Although Starnes denied that he was targeting anyone and
asserted that he was just trying to protect the Sabbath, Representative Garland Pierce, an African
American clergyman, pointed out that people went to work, went shopping, and consumed
alcohol on Sunday, all far less fundamentally protected activities that Starnes was not attempting
to restrict. Pierce further noted that of the 61,000 citizens who had voted on Sundays in the 2012
presidential election, 39 percent were African Americans—nearly double the 22 percent of
registered black voters in North Carolina.182
71. With less than three hours of debate on a complicated omnibus bill, many of whose
provisions had never been debated or considered during the House’s initial passage of HB 589,
on July 25, 2013, the House agreed to the Senate version by a 73-41 party-line vote. Upset by the
paucity of discussion time on the radically altered Senate version of the bill that had added
numerous amendments, four Democrats who had voted for the original HB 589 in April, when it
Starnes’ bill did not come up for a floor vote.
Although the omnibus bill did not specifically ban Sunday early voting, its restriction on the
number of days did cut the possibilities of Sunday voting in half.
180 Laura Leslie, Proposal Would Allow State Religion In North Carolina, WRAL.com (Apr. 2, 2013), http://www.wral.com/proposal-supports-state-religion-in-north-carolina/12296876/. See House Joint Resolution 494, “Rowan County Defense of Religion Act of 201.” It did not pass.
181 On the benefit of Sunday voting, see Editorial, Poll Vault, FAYETTEVILLE OBSERVER, Aug. 28, 2007.
182 Laura Leslie, GOP Seeks to Curb Early Voting, WRAL.com (March 28, 2013), http://www.wral.com/gop-seeks-to-curb-early-voting/12280309/; Laura Leslie, Black Lawmakers Vow to Fight Voting Changes, WRAL.com (April 2, 2013), http://www.wral.com/black-lawmakers-vow-to-fight-voting-changes-/12294475/; John Boyle, Major Voting Changes will Reshape Elections, [Ashville] CITIZENS-TIMES, July 27, 2013.
JA1303
Case 1:13-cv-00660-TDS-JEP Document 117-7 Filed 05/19/14 Page 57 of 91
58
had contained principally a less restrictive photo identification requirement, now refused to
support the omnibus measure.183
Governor McCrory Signs HB 589 into Law
72. After HB 589 passed the General Assembly, its opponents received a boost from Roy
Cooper, the Democratic Attorney General. In office since 2001, Cooper urged Governor Pat
McCrory to veto HB 589, which he called “regressive legislation.” 184 Aware of the voting
reforms enacted over the previous decade, Cooper recognized what the bill’s proponents refused
to admit: “For years, North Carolina has taken steps that encourage people to vote while
maintaining the integrity of the system.”185
73. Given his support for photo identification on the campaign trail, there was little doubt
that McCrory would affix his signature to the bill. Photo identification for voting had constituted
part of his campaign platform in 2012, and he had thrown his support behind the bill as it worked
its way through the General Assembly. Still, he had not spoken out on other aspects of the bill
concerning early voting, provisional voting, and same-day registration, restrictive measures that
had been inserted into the bill by the Senate after it first passed the House. After waiting two
weeks, on August 12, 2013, the governor signed the bill into law without much fanfare. He
repeated words uttered by the legislative majority, calling it a “common-sense law.” In similar
fashion, McCrory denied that photo identification would be difficult to obtain or that requiring it
183 For statements of Representatives George Graham, Paul Tine, Ken Waddell, and Ken Goodman, see Transcript of Floor Debate of the North Carolina General Assembly, House of Representatives (July 25, 2013) at 67-69, 76-79, 88-89. The fifth Democrat, Representative Brisson was absent and did not participate in the vote.
184 Michael Biesecker, McCrory not Familiar with all of Bill He's to Sign,” NEWS AND OBSERVER, July 27, 2013.
185 Id.
JA1304
Case 1:13-cv-00660-TDS-JEP Document 117-7 Filed 05/19/14 Page 58 of 91
59
would inflict a burden. Comparing voting to boarding a plane or buying certain kinds of
medication, he stated with respect to identification that “we should expect nothing less of our
right to vote.”186 He offered no substantive defense of the bill’s elimination of same-day
registration, simply pointing out that many states had never adopted it. And he claimed that the
opportunity for early voting remained equivalent because, although the law would reduce the
number of days, it would retain the total number of hours available to cast a ballot.187
Public Opinion and HB 589
74. In signing the law, McCrory asserted that the photo identification measure commanded
broad popular support from North Carolina voters, including Democrats. His statement was
correct up to a point. According to the League of Women Voters, a poll taken by SurveyUSA in
April 2013, when HB 589 dealt only with photo identification, did indicate that 75 percent of
respondents supported it. However, the same poll found that 70 percent would not exclude a
voter without photo identification and would allow citizens to vote with a signed affidavit
attesting to their date of birth or social security number. Indeed, support for a photo identification
requirement dropped sharply to 59 percent when respondents were told that it “would have a
disproportionate impact on African-American voters.”188
186 Rob Christensen and Jim Morrill, Lawsuits Filed After Gov. Pat McCrory Signs Voter ID Bill, NEWS AND OBSERVER, Aug. 12, 2013.
While an Elon University public
opinion poll taken from September 13-16, 2013, confirmed the general level of support for
requiring some form of government-approved photo identification for voting, it disproved
187 Id.
188 LEAGUE OF WOMEN VOTERS NORTH CAROLINA, SUPER MAJORITY SUPPORTS GIVING VOTERS A NON-PHOTO OPTION AND OPPOSES RESTRICTIONS THAT TARGET PARTICULAR GROUPS (2013). Survey USA, Results of SurveyUSA Mkt Research Study #20443 (Apr. 15, 2013), http://www.surveyusa.com/client/PollPrint.aspx?g=8c5c6269-5692-483a-a5f0-9662c4e5567e&d=0.
JA1305
Case 1:13-cv-00660-TDS-JEP Document 117-7 Filed 05/19/14 Page 59 of 91
60
McCrory’s clam of bipartisan approval: 54 percent of Democrats opposed photo identification
for voting, whereas only 42 percent approved. The poll also revealed sharp racial polarization: 79
percent of whites supported the concept of requiring photo identification, while 55 percent of
African Americans opposed it.
75. These results underscored the close connection between race and party in North Carolina.
“Being perceived as African American,” according to political scientists Keith G. Bartele and
Erin E. O’Brien, has “bec[o]me a reliable marker for partisan preferences [i.e. Democratic] and
an efficient guide for targeting suppression efforts.”189 They were writing of the Democratic
Party generally, but the North Carolina experience fits this pattern. In North Carolina as
elsewhere, Republicans understood that reducing the number of black voters would harm the
Democratic Party. They could disadvantage Democrats by limiting the output of votes by
African Americans and their white allies.190
76. If voters in general approved of photo identification for voting, they roundly disapproved
of the rollback in the early voting period. According to the Elon Poll, only 38 percent supported
it, whereas 51 percent disapproved. In contrast to 57 percent of Republicans who approved, only
22 percent of Democrats did so. Whites divided evenly at 43 percent on either side of the
question in stark contrast to African Americans who overwhelmingly opposed the cutbacks by
189 Keith G. Bartele and Erin E. O’Brien, Jim Crow 2.0? Why States Consider and Adopt Restrictive Access Policies, PERSPECTIVES ON POLITICS(2013)(forthcoming) http://cdn.umb.edu/images/cla_p_z/Jim_Crow_2_0_-_Bentele.pdf. See also, Richard L. Hasen, Race or Party?: How Courts Should Think About Republican Efforts to Make it Harder to Vote in North Carolina and Elsewhere, 127 HARV. L. REV.F. 58 (2013).
190 Elon University Poll, North Carolina State Survey of Registered Voters: Attitudes on Issues Facing the State (Sept. 13-16, 2013), http://www.elon.edu/e-web/elonpoll/092013.xhtml. A High Point University Poll found different results. It reported 56 percent support among African Americans for photo ID but still found a 19 percent gap between black and white supporters. Craig Jarvis, New Poll Shows Support for Voter ID Continues, NEWS AND OBSERVER, Sept. 17, 2013.
JA1306
Case 1:13-cv-00660-TDS-JEP Document 117-7 Filed 05/19/14 Page 60 of 91
61
77 percent.191 The only poll that addressed opinions on the entire election law, a study by Public
Policy Polling, found that only 16 percent of Democrats endorsed the omnibus version of HB
589. White voters narrowly favored the omnibus bill, 46 percent to 44 percent in contrast to
blacks, 16 percent for and 72 percent against. Seventy-one percent of Republicans endorsed the
measure while 72 percent of Democrats opposed it.192
77. The bill also attracted national criticism. Former United States Secretary of State Colin
Powell, an African-American Republican, spoke at the CEO Forum in Raleigh on August 28,
2013. With Governor McCrory in attendance, Powell criticized the General Assembly and the
governor for making it harder to vote, rather than encouraging people to vote. “You can say what
you like, but there is no voter fraud,” Powell insisted and then asked, “How can it be widespread
and undetected?” Powell went on to sum up the significance of the measure: “What it really says
to the minority voters is ...’We really are sort-of punishing you.’”
Clearly, Governor McCrory was mistaken
in saying that North Carolina voters supported the final bill.
193
Conclusion: Racial Motivations behind the Reversal of Reform
78. From 1999-2007, the North Carolina government extended electoral participation by
encouraging voting through a variety of reform measures. Primary among them were a no-
excuse, early voting period of seventeen days, same-day registration and voting, and provisional
191 Elon University Poll, North Carolina State Survey, at 24.
192 Public Policy Polling, North Carolinians Oppose Voting Bill Signed Today, (Aug. 12, 2013), http://www.publicpolicypolling.com/pdf/2011/PPP_Release_NC_812.pdf. The poll found that only 39 percent of the voters in the state supported the bill with its provision curbing early voting and prohibiting one-site registration and provisional voting outside of assigned precincts. Although the original voter ID provision had previously drawn approval adding these other measure turned voters against the omnibus bill.
193 John Frank, Speaking in Raleigh, Colin Powell Blasts North Carolina Voting Law, NEWS AND OBSERVER, Aug. 22, 2013.
JA1307
Case 1:13-cv-00660-TDS-JEP Document 117-7 Filed 05/19/14 Page 61 of 91
62
voting outside the assigned precinct but within a county. In addition, the state had a long
tradition of providing the opportunity for straight-ticket voting (with the option to split votes if
desired). Before these changes, North Carolina had ranked at the low end (48th in 1988) of voter
turnout; however, these election reforms dramatically altered the situation. In 2008, the Tar Heel
State jumped to 22nd place and four years later leaped again to 11th.194 Voters embraced early
voting. In the 2008 election some 2.4 million citizens cast ballots during the early voting period,
approximately 57 percent of the total votes cast for the election. Four years later the figure was
similar, with approximately 55 percent of all ballots cast came through early voting.195 It was
widely known that African American Democrats were markedly more likely to use early voting
than other groups. More than 70 percent of African Americans voted early compared to 52
percent of whites.196
194 Paige Worsham, North Carolina Center for Public Policy Research, Last Minute Changes to Voter ID Bill Would Undermine N.C. Voter Turnout Gains, NPR (July 24, 2013), http://www.nccppr.org/drupal/content/blog/2013/07/24/4280/last-minute-changes-to-voter-id-bill-would-undermine-nc-voter-turnout-g.
In 2008, they constituted 36 percent of early voters, more than double the
figure for 2004. Moreover, the first week of early voting was particularly popular among blacks
and Democrats. African Americans also utilized same-day registration and out-of-precinct-
provisional ballots as well as straight-ticket voting to a far greater proportion of their share of the
voting-age population. In 2012, although making up 22 percent of the state’s total registered
voters, blacks comprised 35 percent of same-day registrants. In contrast, whites who constituted
55 percent of same-day registrants made up 71 percent of total registered voters. Thus, African
195 Declaration of Charles Stewart III, Ph.D., Exhibit 22: Turnout and registration, by race, 2006–2012 and Exhibit 41: Black and white voters who voted on each day of early voting, 2006–2012, United States v. North Carolina, 1:13-cv-861 (Apr. 2014); Nearly 2.6 million Early Voters Turn Out in North Carolina, USA Today, Nov. 2, 2008; Ari Berman, 7 Ways North Carolina Republicans are Trying to Make it Harder to Vote, THE NATION, Apr. 5, 2013; Lynn Bonner, Early Voters Break Turnout Records at 2.7 million, NEWS AND OBSERVER, Nov. 3, 2012.
196 Declaration of Charles Stewart III, Ph.D., Exhibit 39: Early voting percentages for black and white North Carolina voters, 2006–2012, United States v. North Carolina, 1:13-cv-861 (Apr. 2014). In 2012, the percentages remained about the same: 70.5 percent for blacks and 51.9 percent for whites.
JA1308
Case 1:13-cv-00660-TDS-JEP Document 117-7 Filed 05/19/14 Page 62 of 91
63
Americans were more likely than white North Carolinians to take advantage of same-day
registration.197
79. In addition, during the decade of election reform around the turn of the twenty-first
century, North Carolina had experienced an influx of some 1.5 million new residents; people of
color accounted for 61 percent of the increase. Since 2008, the black and Hispanic share of
eligible voters had increased by 2.5 percent, whereas the white percentage had dropped by a
similar margin. The election of 2008 in which North Carolina voted for President Obama
underscored the growing political importance of the minority population, and although
Republicans won the Tar Heel State in 2012, North Carolina’s changing population indicated
that the state could no longer be counted automatically in the Republican presidential column as
it had been from 1980-2004. North Carolina had become a swing state. Moreover, of all the
swing states, it had the largest proportion of African Americans.
198
80. After the 2010 election the General Assembly switched course and undertook to reverse
the election reforms that had benefitted African Americans. The legislature sought to diminish
the number of votes potentially cast by blacks in order to reinforce its political control. In doing
so, the majority cloaked its objectives under the mantle of reform. During legislative
deliberations in 2013, Democratic Representative Rick Glazier of Cumberland warned his
colleagues on the other side of the aisle: “You present the bill as a hygienic electoral reform
197 Rob Christensen and Jim Morrill, Lawsuits Filed if Governor Pat McCrory Signs Voter ID Bill,” NEWS AND OBSERVER, Aug. 12, 2013.” For the most recent study confirming the racial divide in utilization of early voting and same-day registration, see Michael C. Herron and Daniel A. Smith, Race, Shelby County, and the Voter Information Verification Act in North Carolina, 38-43 (Feb. 12, 2014) (forthcoming); see also remarks of Senator Angela R. Bryant in Transcript of Floor Debate of the North Carolina General Assembly, Senate (July 24, 2013).
198 Ari Berman, 7 Ways North Carolina Republicans are Trying to Make it Harder to Vote, THE NATION, Apr. 5, 2013.
JA1309
Case 1:13-cv-00660-TDS-JEP Document 117-7 Filed 05/19/14 Page 63 of 91
64
measure, but the pathogens you seek to remove are people: African-Americans, Latinos, young
voters and low income folks who simply resist voting Republican.”199
81. Without real evidence of substantial voting fraud, in 2013 the General Assembly
designed an omnibus measure supposedly designed to purify elections and restore confidence in
the process. It made no difference that the remedies they enacted did very little to ensure that
improper voting would not take place. Voter impersonation was the only problem that a photo
identification card could prevent, and the SBOE reported scant proof of its existence. For all the
anecdotes supporters marshalled about dead voters still appearing on the rolls, real data showed
no substantiation of voting from the graveyard.
In reality, HB 589 marked
the culmination of counter-reform.
82. Even more obviously, cutting back early voting and erasing same-day registration and
out-of-precinct provisional voting, which were subject to verification, would do nothing to
combat the types of fraud the bill’s supporters had alleged, but it would reduce opportunities for
African Americans to cast their ballots. The legislature had the data before it from the SBOE
matching voter registration with Department of Motor Vehicle driver’s licenses lists and
statistical charts presented by Senator Stein and others on the effect of imposing this strict of a
photo identification requirement, and cutting back early voting, would have on African
Americans. This evidence was readily available and well known. However, the legislative
majority willfully disregarded it. They steadfastly refused to accept alternatives to photo
identification that had been used in North Carolina and acceptable under the federal Help
America Vote Act, such as copies of utility bills, public assistance cards, and the last four digits
199 Transcript of Floor Debate of North Carolina General Assembly, House of Representatives (July 25, 2013) at 57.
JA1310
Case 1:13-cv-00660-TDS-JEP Document 117-7 Filed 05/19/14 Page 64 of 91
65
of a person’s social security number, which would not have diminished black opportunities for
voting. The majority’s purported concern with fraud is sharply undermined by its refusal to act in
the one area that showed some evidence of fraud, the casting of absentee ballots. With respect to
those ballots, lawmakers declined to require photo identification and allowed readily available
alternative identification.200 Not surprisingly, in contrast to in-person, early voting, whites
(particularly Republicans) utilized mail-in absentee balloting to a much greater extent than did
African Americans.201 Provisions that waived photo identification for those over seventy-years-
old while at the same time striking out the procedure for early pre-registration for sixteen and
seventeen-year-olds also tended to disproportionately benefit whites and disadvantage blacks.202
83. Although the most significant, individual sections of HB 589 discussed in this report
disadvantaged African American voters, the cumulative effect of the various items will make its
discriminatory impact even more powerful. Because African Americans disproportionately do
not have the designated photo identification, tend to use early voting more often, cast provisional
ballots outside their precincts more frequently, and utilize same-day registration to a higher
degree, taken collectively the law will produce a compound, negative effect on the opportunity
200 In 2003, the state enacted S.L. 2003-226, which added the HAVA requirement that individuals who register to vote by mail and present themselves to vote in person for the first time in a federal election shall present “a current and valid photo identification” or “a copy of one of the following documents that shows the name and address of the voter: a current utility bill, bank statement, government check, paycheck, or other government document,” known as a HAVA ID (Sect. 163-166.12(a)). This requirement also applies to individuals who register to vote by mail and seek to cast a mail-in absentee ballot in a federal election for the first time, requiring them to submit a copy of “a current and valid photo identification” or “a copy of one of the following documents that shows the name and address of the voter: a current utility bill, bank statement, government check, paycheck, or other government document” with their mail-in absentee ballot. Sect. 163-166.12(b). To address some problems in this process, the General Assembly in 2007 enacted HB 1743 (S.L. 2007-391), which amended Sect. 163-166.12 to require voters whose driver’s license numbers and last 4 digits of their Social Security did not match state databases to show HAVA-ID when voting. See Sect. 163-166.12 (b2).
201 Nate Cohen, Finally Real Numbers on Voter ID, THE NEW REPUBLIC, July 22, 2013.
202 Michael C. Herron and Daniel A. Smith, Race, Shelby County, and the Voter Information Verification Act in North Carolina, 38-43 (Feb. 12, 2014) (forthcoming).
JA1311
Case 1:13-cv-00660-TDS-JEP Document 117-7 Filed 05/19/14 Page 65 of 91
66
for black citizens to cast their ballots. Information about these effects was widely available, and
no legislator could have been ignorant of the likely impact. The information concerning the
detrimental racial impact of these measures appeared in major state newspapers, including the
state capital’s News and Observer, reports by the SBOE and non-partisan organizations
interested in promotion of voting rights, and hearings and debates in the General Assembly from
African American lawmakers and their white allies. Since 1999, African American registration
and voter participation had leapt forward and in 2008 surpassed that of whites for the first time
since the Reconstruction era after the Civil War. Barack Obama had won North Carolina by a
slim 14,000 votes, thereby increasing the significance of the African American electorate and
buttressing the Democratic Party in North Carolina. With this in mind, having taken charge of
the General Assembly in 2010 and the governorship in 2012, Republicans intentionally crafted
the omnibus law whose effect promised to be greater than the sum of its parts in reducing black
votes and promoting future Republican victories.
84. One cannot judge racial motivation in this case simply by the public comments made by
legislators. This is not the late nineteenth and early twentieth centuries when lawmakers seeking
to disfranchise blacks could make racist comments without fear of penalty from the federal
government or their constituents. Following the civil rights movement and expansion of the
black electorate, racist rhetoric diminished greatly though not entirely. Politicians interested in
diluting black ballots increasingly use neutral, non-racial language to explain their intentions.
Governor McCrory was certainly not, in the words of one critic, “a 21st century successor to
[Lester] Maddox, [George] Wallace and [Orville] Faubus,” the prototypes of southern
JA1312
Case 1:13-cv-00660-TDS-JEP Document 117-7 Filed 05/19/14 Page 66 of 91
67
segregationist political leader.203 And yet discriminatory laws have long been cloaked in
reformist rhetoric. In the name of “good government,” white public officials in the states covered
by the Voting Rights Act created at-large elections to replace single-member districts and
annexed neighboring white majority suburbs to cut the proportion of black voters in election
districts. They did not generally use racial language, but, as federal courts have found on
numerous occasions, their handiwork was a means to the end of diluting black political
opportunities.204
85. Nevertheless, coded racial language does appear in arguments made by the bill’s
supporters. For example, in 2013, Don Yelton, a precinct chairman of the Buncombe County
Republican Party testified before the House Rules Committee hearings on HB 589. He accused
Democrats of opposing the bill “as it will disfranchise some of their special voting blocks,” and
acknowledged, “that within itself is the reason for photo voter ID, period, end of discussion. It is
a no-brainer.”
205
203 Gene Nichol, a University of North Carolina law professor quoted in Francis X. De Luca and Jane S. Shaw, Academic Freedom or Shrill Partisanship?, Civitas Institute (Oct. 18, 2013), https://www.nccivitas.org/2013/academic-freedom-shrill-partisanship/.
Of course Yelton was well aware that African Americans were the major
special voting block associated with the Democratic Party. He made this crystal clear in an
interview a few months after passage of HB 589. During an appearance on John Stewart’s “The
Daily Show,” he elaborated on his previous comments when he told an incredulous questioner,
204 KOUSSER, COLORBLIND INJUSTICE and STEVEN F. LAWSON, IN PURSUIT OF POWER: SOUTHERN BLACKS AND ELECTORAL POLITICS, 1965-1982 (1985).
205 See Yelton testimony, Transcript of Public Hearing of the North Carolina General Assembly, House Elections Committee (Apr. 10, 2013) at 51. Note that the term “bloc vote,” reflective of Yelton’s use of “special voting blocks,” has been used as a euphemism or code word to refer to black voters. See Peyton McCrary and Steven F. Lawson, Race and Reapportionment, 1962: The Case of Georgia Senate Redistricting, 12 J. POLICY HIST. 293, 297 (2000); Dillard v. Crenshaw Cnty., 640 F.Supp.1347, 1359 (M.D. Al. 1986)(noting that the term “bloc vote” was commonly used as a code to refer to the black vote). Yelton also provided testimony during the public hearing held in March 2013, see Transcript of Public Hearing of the North Carolina General Assembly, House Elections Committee (March 12, 2013) at 112.
JA1313
Case 1:13-cv-00660-TDS-JEP Document 117-7 Filed 05/19/14 Page 67 of 91
68
Aasif Mandvi, "If [the law] hurts the whites so be it. If it hurts a bunch of lazy blacks that want
the government to give them everything, so be it."206
86. Although Yelton’s remarks were atypically blunt, other racially charged comments
occasionally surfaced. In April 2013, before the House approved its original version of the bill, a
state-issued college photo identification was approved for voting (the final version deleted it).
Democratic Representative Paul Luebke pointed out that this did not affect students enrolled in
private universities in his district, most notably Duke University. Representative Jeff Collins, a
Rocky Mount Republican, responded with a surprising racial twist. The photo identification bill,
he responded, was “discriminating against rich Caucasians from New Jersey.”
207 Of course he
meant this as a joke, but his comment did skirt the edge of the unmentionable issue for
Republicans: race. Moreover, Collins like his majority colleagues disregarded the fact that the
photo identification requirement would affect African Americans more disproportionately than
whites, privileged or otherwise. Furthermore, Representative Michael Speciale had injected race
into the discussion when he derided William Barber, state president of the NAACP and a staunch
opponent of HB 589, as a “race opportunist.”208
206 Joe Coscarelli, Don Yelton, GOP Precinct Chair, Delivers Most Baldly Racist Daily Show Interview of All Time, NEW YORK MAGAZINE, Oct. 24, 2013. Confronted at the time with lawsuits by private plaintiffs and the US Justice Department challenging HB 589, Republican leaders condemned Yelton and forced him to resign.
Also revealing about racial thinking during this
session of the General Assembly was the majority’s repeal of the “Racial Justice Act,” which had
allowed death row inmates to be re-sentenced to life in prison without parole if they proved
racial discrimination in jury selection or sentencing. The original law had obviously been aimed
at African Americans who comprised 53 percent of death-row inmates in North Carolina
207 Rob Christensen, New Voter ID Law Could Cost State $3.6 million, CHARLOTTE OBSERVER, Apr. 19, 2013.
208 See, supra ¶49.
JA1314
Case 1:13-cv-00660-TDS-JEP Document 117-7 Filed 05/19/14 Page 68 of 91
69
prisons.209
87. Even proponents of HB 589 recognized that their anti-fraud argument lacked real
substance. When the evidence proved that there was little fraud and virtually none that photo
identification would check, they admitted that preventing fraud was not their main motivation
and switched their focus to restoring confidence in elections. Still, they produced no reliable
proof that voters lacked faith in their electoral system; in contrast the majority of North
Carolinians appreciated the benefits of early voting and the other reforms enacted since 1999, as
polls amply demonstrated. Moreover, the bill’s supporters knew that HB 589 would actually
undermine the confidence of blacks in the electoral process, as all African American members of
the General Assembly and an overwhelming majority of their black constituents approved of the
current system of elections and opposed the changes to it.
The legislative session in which the omnibus bill was passed was characterized by a
systematic indifference to racial disparities in North Carolina.
88. In passing HB 589, the legislature departed from the pledge made by House Speaker
Tillis that it would operate with transparency and provide careful deliberation of the bill.
Although the proposal followed a normal course of procedure in the House before its original
passage in April 2013, it remained stalled in Senate committee for three months until after the
Supreme Court ruled in Shelby County v. Holder. Lawmakers then amended the bill significantly
by attaching other provisions that had not received full hearings, increasing the length of the bill
by forty pages. The Senate immediately passed this revised omnibus measure and sent it to the
209 David Zucchino, In NC Voting Procedure Changes Loom, LATimes.com, June 29, 2013, http://articles.latimes.com/2013/jun/30/nation/la-na-voting-rights-20130630. Matt Smith, Racial Justice Act Repealed in North Carolina, CNN.com, June 21, 2013, http://www.cnn.com/2013/06/20/justice/north-carolina-death-penalty/. McCrory threw his support behind the repeal bill because he said that the act effectively abolished capital punishment in the state, as whites as well as blacks had used the law to appeal their sentences.
JA1315
Case 1:13-cv-00660-TDS-JEP Document 117-7 Filed 05/19/14 Page 69 of 91
70
House for concurrence without the possibility of amendments or establishing a conference
committee to work out differences between the two versions of HB 589.210
89. A review of the history of the passage of HB 589 supports the conclusion that the law’s
supporters willfully disregarded relevant data that disproved their claims and underscored the
consequences of their actions. Given the paucity of evidence of fraud (especially voter
impersonation) and the financial costs associated with providing free identification cards,
educating voters to their availability, and setting up additional polling sites and hiring personnel
to accommodate a shorter early voting period with the same number of total hours, the
motivations of the fiscally-minded, cost-cutting, legislative majority become increasingly unclear
unless diminished black electoral participation is taken into account. Whatever slight, good
government benefits may have hypothetically existed for enacting the omnibus voter law were
more than outweighed by the demonstrated racial burden it imposed on African Americans, an
outcome proponents intentionally chose for their own political interests. The enactment of HB
In great haste to
avoid the close of the 2013 session, the House approved the bill. Opponents tried to move for
establishing a committee of the whole to allow fuller discussion, but the majority turned this
down. Thus, what mainly had been a bill for photo identification turned into a multifaceted law
that had great consequences for early voting, out-of-precinct provisional voting, and same-day
registration among others. In so doing, the General Assembly acted in a manner that contravened
the promise of its leaders, as stated publicly by Representative Tillis.
210 For example, a conference committee was the procedure used in 2007 to work out differences between House and Senate bills on same-day registration. See Associated Press, LAURINBURG EXCHANGE, July 12, 2007.
JA1316
Case 1:13-cv-00660-TDS-JEP Document 117-7 Filed 05/19/14 Page 70 of 91
71
589 reflected the enduring significance of race as a motivation for reshaping the state’s election
code in a manner that reversed previous reforms especially favorable to African Americans.211
211 The first year in implementation of the law further shows the problem created by the General Assembly in shortening the early voting period while presumably retaining the same number of hours. Thirty-five counties, mainly rural and many of them with significant African-American population, were granted exemptions by the SBOE to cut back the number of hours for early voting for the 2014 elections. Michael Tomsic, Many Counties Seek Exemptions from NC Early Voting Requirements, WFAE.org (March 10, 2014), http://wfae.org/post/many-counties-seek-exemption-nc-early-voting-requirements; Andrew Barksdale, Early Voting Hours Reduced for May Primary, FAYETTEVILLE OBSERVER, Feb. 27, 2014.
JA1317
Case 1:13-cv-00660-TDS-JEP Document 117-7 Filed 05/19/14 Page 71 of 91
I declare under penalty of perjury that the foregoing is true and correct. Executed this 11th day of April, 2014.
Steven F. Lawson
JA1318
Case 1:13-cv-00660-TDS-JEP Document 117-7 Filed 05/19/14 Page 72 of 91
Exhibit A: Curriculum vitae
Steven F. Lawson
Metuchen, NJ 08840 Education B.A., 1966, City College of New York M.A., 1967, Columbia University Ph.D., 1974, Columbia University Teaching Experience 1969, Adjunct Lecturer, Kingsborough Community College 1970-72, Adjunct Lecturer, City College of New York 1972, Instructor, University of South Florida 1974, Assistant Professor, University of South Florida 1978, Associate Professor, University of South Florida 1986, Professor, University of South Florida 1992-1998, Professor and Head of the History Department,
University of North Carolina-Greensboro 1995(Fall), Visiting Adjunct Professor, Duke University 1998-2009, Professor, Rutgers University 2009-present, Professor Emeritus, Rutgers University 2009-2010, University of Cambridge (Classes in Historiography) Publications: Books/Monographs Black Ballots: Voting Rights in the South, 1944-1969. New York: Columbia University Press, 1976. In Pursuit of Power: Southern Blacks and Electoral Politics, 1965-1982. New York: Columbia University Press, 1985.
Paperback edition, 1987. Running for Freedom: Civil Rights and Black Politics in America Since 1941. Philadelphia: Temple University Press (cloth) and New York: McGraw-Hill (paper), 1991. Running for Freedom: Civil Rights and Black Politics in America Since 1941, Second Edition. New York: McGraw-Hill, 1997. Running for Freedom: Civil Rights and Black Politics in America
Since 1941, Third Edition. Malden, Mass., Wiley-Blackwell Publishing, 2009.
Debating the Civil Rights Movement, 1945-1968. Lanham, MD.: Rowman- Littlefield, 1998, with Charles Payne. Debating the Civil Rights Movement, 1945-1968, Second Edition. Lanham, MD.: Rowman & Littlefield, 2006, with Charles Payne.
JA1319
Case 1:13-cv-00660-TDS-JEP Document 117-7 Filed 05/19/14 Page 73 of 91
Black Ballots: Voting Rights in the South, 1944-1969. [Reprint edition with new preface] Lanham, MD.: Lexington Books, 1999. Civil Rights Crossroads: Nation, Community, and the Black Freedom
Struggle. Lexington, KY. University of Kentucky Press, November, 2003. (paper, 2006)
To Secure These Rights: President Harry S Truman’s Committee on
Civil Rights Boston: Bedford-St. Martin’s, 2004. One America in the Twenty-first Century: The Report of President
Bill Clinton’s Initiative on Race. New Haven, Yale University Press, 2009.
(With Nancy A. Hewitt) Exploring American Histories: A Brief Survey
with Sources. Boston: Bedford-St. Martin’s, 2013. Co-Editor with Cynthia Griggs Fleming, Series on Civil Rights in
the Twentieth Century, University Press of Kentucky (beginning in 2003. Publication of book manuscripts on the Civil Rights Movement).
Co-Editor with Nancy A. Hewitt, “Uncovering American History.”
Publication of primary document readers on various topics in American history. Published by Wiley-Blackwell.
Content Consultant, Michael Capek, Civil Rights Movement (Essential
Library of Social Change). Minneapolis, ABDO Publishing, 2013. Publications: Articles, Chapters, Reprints "Consensus and Civil Rights: Lyndon B. Johnson and the Black Franchise," Prologue 8 (Summer, 1976): 64-76. (co-author) "From the Bottom Up: Oral History, Family History, and 20th Century America," Trends in Social Education 26 (Winter, 1980): 13-16. "Let Them Be Judged: Judicial Integration in the Deep South, A Review Article," Vanderbilt Law Review 33 (March, 1980): 517-27. "Progressives and the Supreme Court: A Case for Judicial Review in the 1920s," Historian 42 (May, 1980): 419-36. "Lyndon Johnson and Civil Rights," in Exploring the Johnson Years, Robert A. Divine, ed., Austin: University of Texas Press, 1981, pp. 93-126. (Paperback edition: The Johnson Years, Volume One, University of Kansas Press, 1987.)
JA1320
Case 1:13-cv-00660-TDS-JEP Document 117-7 Filed 05/19/14 Page 74 of 91
3
"Tampa Bay History: An Experiment in Public History," The Public Historian 3 (Spring, 1981): 53-62. (co-author) "From Sit-in to Race Riot: Businessmen, Blacks, and the Pursuit of Moderation in Tampa, 1960-1967," in Southern Businessmen and Desegregation, Elizabeth Jacoway and David Colburn, eds., Baton Rouge: Louisiana State University Press, 1982, pp. 257-81. "'I Got It From the New York Times': Lyndon Johnson and the Kennedy Civil Rights Program," Journal of Negro History 68 (Summer, 1982): 159-72. "Preserving the Second Reconstruction: Enforcement of the Voting Rights Act, 1965-1975," Southern Studies 22 (Spring, 1983): 55-75. "Civil Rights During the Johnson Administration, 1963-1969," ed., (microfilm, 69 reels), Frederick, Maryland: University Publications of America, 1984, 1985, 1987. "Now and Then: The Black Vote--A New Era," American Heritage, 35 (October/November, 1984): 94-95. "E Pluribus Unum: Civil Rights and National Unity," in American Choices: Social Dilemmas and Public Policy, Since 1960. Robert H. Bremner, Richard J. Hopkins, and Gary W. Reichard, eds., Columbus, Ohio: Ohio State University Press, 1986, pp. 35-73. "Gradualism, South Africa, and Civil Rights," Southern Changes, 8 (April/May 1986): 1-3. "Groveland: Florida's Little Scottsboro," Florida Historical
Quarterly, 65 (July, 1986): 1-26. (co-author with David Colburn and Darryl Paulson); reprinted in The African American Heritage of Florida. David R. Colburn and Jane L. Landers, eds., Gainesville: University Press of Florida, 1995, pp. 298-325.
"Commentary on 'Civil Rights Reform and the Black Freedom Struggle,'" in The Civil Rights Movement in America. Charles W. Eagles, ed., Jackson: University Press of Mississippi, 1986, pp. 32-37. "Martin Luther King, Jr., and the Civil Rights Movement: A Review Essay," Georgia Historical Quarterly, 71 (Summer 1987) :243-
JA1321
Case 1:13-cv-00660-TDS-JEP Document 117-7 Filed 05/19/14 Page 75 of 91
4
260. "The Florida Legislative Investigation Committee and the Constitutional Readjustment of Race Relations, 1956-1963," in An Uncertain Tradition; Constitutionalism and the History of the South, Kermit L. Hall and James W. Ely, Jr., eds., Athens: University of Georgia Press, 1989, pp. 296-325. "Freedom Then, Freedom Now: The Historiography of the Civil Rights Movement," American Historical Review, 96 (April 1991): 456- 71. From Boycotts to Ballots: The Reshaping of National Politics," in New Directions in Civil Rights Studies, Armstead Robinson and Patricia Sullivan, eds., Charlottesville: University of Virginia Press, 1990, pp. 184-210. "Mixing Moderation with Militancy: Lyndon Johnson and African- American Leadership," in Exploring the Johnson Years, Vol. 3, Robert A. Divine, ed., Lawrence: University of Kansas Press, 1994, pp. 82-116. Double Reverse Discrimination, [Review essay of J. Morgan Kousser, Colorblind Injustice: Minority Voting Rights and the Undoing of the Second Reconstruction ], Reviews in American History 27(September 1999): 477-81. The Selma Movement and the Voting Rights Act of 1965, in Jonathan Birnbaum and Clarence Taylor, eds., Civil Rights Since 1787: A Reader on the Civil Rights Struggle (NY, 2000), pp. 539-45 [excerpted from Running for Freedom, pp. 105, 107-16]. Lyndon B. Johnson, in The American Presidents, Melvin I. Urofsky, ed., New York: Garland Publishing, 2000, pp. 397-414. Race and Reapportionment, 1962: The Case of Georgia Senate Redistricting, Journal of Policy History, 12(Summer, 2000): 1-28(co-author with Peyton McCrary). Civil Rights and Black Liberation, in Blackwells Companion to
American Womens History, ed., Nancy A. Hewitt, Oxford, Eng.,: Blackwells, 2002.
"Race, Rock and Roll, and the Rigged Society: The Payola Scandal
and the Political Culture of the 1950s," in The Achievement of Liberalism: The New Deal and Its Legacies, ed., William H. Chafe, New York: Columbia University Press, 2003.
JA1322
Case 1:13-cv-00660-TDS-JEP Document 117-7 Filed 05/19/14 Page 76 of 91
5
“Reflections on Darlene Clark Hine’s Black Victory,” in Darlene
Clark Hine, Black Victory: The Rise and Fall of the White Primary in Texas (Columbia: University of Missouri Press, 2003): 9-24.
“In Search of Legitimacy,” from Running for Freedom, pp. 222-60,
reprinted in Schomburg Studies in the Black Experience, Colin Palmer, ed. ProQuest Information and Learning.
“Prelude to the Voting Rights Act: The Suffrage Crusade, 1962-
1965.” 57 South Carolina Law Review (Summer 2006): 889-921. “Roundtable: Responses to Robin D.G. Kelley ’He’s Got the
Whole World in His Hands,” Journal of American Studies 45(2011),E1, http://journals.cambridge.org.proxy.libraries.rutgers.edu/action/displayIssue?decade=2010&jid=AMS&volumeId=45&issueId=01&iid=8195695
“Still Running for Freedom: Barack Obama and the Legacy of the
Civil Rights Movement,” in Iwan Morgan and Philip Davies, eds., Sit-Ins to SNCC: The Student Civil Rights Movement in the 1960s. Gainesville: University Presses of Florida, 2012, 171-186.
“George W. Bush, Compassionate Conservatism, and the Limits of
‘Racial Realism’”, in Kenneth Osgood and Derrick E. White, eds., Winning While Losing: Civil Rights, the Conservative Movement, and the Presidency from Nixon to Obama. Gainesville: University Presses of Florida, 2014, 216-260.
Publications: Encyclopedia articles "Chambers v. Florida," "City of Mobile v. Bolden," “John Doar,”
"Kerner Commission," "National Committee to Abolish the Poll Tax," "Rice v. Elmore," "Tampa, Florida, Race Riot," in Encyclopedia of African-American Civil Rights: From Emancipation to the Present, Charles D. Lowery and John F. Marszalek, Westport, Ct: Greenwood Press, 1992.
"Suffrage, Twentieth Century," in The Encyclopedia of African- American Culture and History, Jack Salzman, David Lionel Smith, and Cornel West, eds., New York: Macmillan, 1998 "U.S. Civil Rights Movement (1954-1968)," in The Encyclopedia of Political Revolutions, Jack Goldstone, ed., Washington, D.C.: Congressional Quarterly, 1998.
JA1323
Case 1:13-cv-00660-TDS-JEP Document 117-7 Filed 05/19/14 Page 77 of 91
6
"Harry T. Moore," in American National Biography, John A. Garraty, ed., New York: Oxford University, 1998. "Civil Rights History: 1966-Present," "Voting Rights," "Voting Rights Act (1965)," in Civil Rights in the United States, Waldo Martin and Patricia Sullivan, eds., New York: Macmillan, 2000, pp. 163-64, 765-68.
“Ruby Hurley” in Notable American Women, ed., Susan Ware,
Cambridge, MA: Harvard University Press, 2005.
“Civil Rights,” in Princeton Encyclopedia of United States Political History, ed., Michael Kazin (Princeton, Princeton University Press, 2009): 137-41.
Publications: Book Reviews
American Historical Review, Annals of the American Academy of Political and Social Sciences, Culturefront, Diplomatic History Florida Historical Quarterly, Georgia Historical Quarterly, Historian, Journal of American History, Journal of Southern History, North Carolina Historical Review, Peace and Change, Political Science Quarterly, Public Historian, Reviews in American History, Southern Cultures.
Unpublished (printed) Government Reports:
“The Desegregation of Public Accommodations: Theme Study”, National Park Service and Organization of American Historians, 2004, revised 2009. “Voting Rights: Theme Study,” National Park Service and Organization of American Historians.
Papers: Professional Conferences and Invited Lectures American Historical Association, "The Improbable Emancipator: Lyndon B. Johnson and Black Voting Rights," San Francisco, December, 1973. Florida College Teachers of History, "Prelude to the Second Reconstruction: Southern Blacks and the Suffrage, 1944- 1954," Gainesville, April, 1976. The Citadel Conference on the New South, "From Sit-in to Race Riot: Civil Rights in Tampa, 1960-1967," Charleston, April, 1978.
JA1324
Case 1:13-cv-00660-TDS-JEP Document 117-7 Filed 05/19/14 Page 78 of 91
7
The Citadel Conference on the Old South to the New, commentator, "Southern Political Reform: Huey Long's Louisiana to Jimmy Carter's Georgia," Charleston, April, 1979. Southern Historical Association, commentator, "The Southern Business Community Responds to Desegregation," Louisville, November, 1981. American Historical Association, "Preserving the Second Reconstruction, Enforcing the Voting Rights Act, 1965-1975," Los Angeles, December, 1981. Southern Historical Association, commentator, "Shaping the Post- World War II South: Economics, Race and Politics," Louisville, November, 1984. Porter L. Fortune Chancellor's Symposium on Southern History, commentator, "Strategies and Tactics of the Civil Rights Movement," University of Mississippi, October, 1985. Southern Historical Association, commentator, "The Electoral Dimension of the 'Second Reconstruction,'" Houston, November, 1985. Social Science History Association, chair and commentator, "The President, Congress, and the Great Society," Chicago, November, 1985. American Historical Association, chair and commentator, "Presidential Strategies and Civil Rights," Chicago, December, 1986. Conference on the South and the American Constitutional Tradition, College of Law, University of Florida, Gainesville, "The Florida Legislative Investigation Committee and the Constitutional Readjustment of Race Relations, 1956-1963," March 7, 1987. Conference on New Directions in Civil Rights Studies, University of Virginia, Charlottesville, "Political Consequences of the Civil Rights Movement," May 7, 1988. University of Keele, (invited lecture)”Black Politics and the
Second Reconstruction,” November 1988, Keele, England. Southern Historical Association, chair, "Political Emancipation of Black Women," Lexington, Ky., November 1989.
JA1325
Case 1:13-cv-00660-TDS-JEP Document 117-7 Filed 05/19/14 Page 79 of 91
8
American Historical Association, chair, "Race and Ethnicity in Postwar America," San Francisco, December 1989. Organization of American Historians, chair, "Politics and Civil Rights in the 1950s and 1960s," Washington D.C., March 1990. Southern Historical Association, commentator, "The Unraveling of the Democratic Coalition in North Carolina, 1936-1969," Nov. 3, 1990, New Orleans, La. Civil Rights Colloquium, "The Voting Rights Act: Thirty Years
Later," Invited lecture May 9, 1995, Cambridge University, England
Southern Historical Association, chair, "Black-Oriented Radio and Social Change," November 9, 1995, New Orleans. Pacific Coast Branch, American Historical Association, chair and commentator, "Black Mayors," August 4, 1995, Maui, Hawaii. "Bringing the State Back Home: The Civil Rights Movement and the
Federal Government," Sayre School, Lexington, KY, February 28, 1998.
“Black Politics”, West Chester State University, February 24,2002. “Rock and Roll, Payola, and the Civil Rights Movement,” Walker
Horizon Forum, DePauw University, October 4, 2002. The Civil Rights Movement in South Carolina, “Battles over Ballots:
Voting Rights Since the 1940s,” commentator, The Citadel, Charleston, South Carolina, March 6, 2003.
“Civil Rights Crossroads: Nation, Community and the Black Freedom
Struggle,” Invited Lecture, Park College, Kansas City, Missouri, February 23, 2004.[Organization of American Historians Distinguished Lecture Series]
“Lyndon B. Johnson: The Last Liberal President,” Keynote Lecture,
Mid-America Conference on History, Southwest Missouri State University, October 1, 2004 [Organization of American Historians Distinguished Lecture Series]
“The 1965 Voting Rights Act: Forty Years After,” Lecture, Middle
Tennessee State University, Murfreesboro, Tennessee, February 17, 2005.
JA1326
Case 1:13-cv-00660-TDS-JEP Document 117-7 Filed 05/19/14 Page 80 of 91
9
“Lyndon B. Johnson: the Last Liberal President,” March 14, 2005,
University of Florida, Gainesville. Chair, “Beyond the Boundaries of Nations: Diasporic Travels and the
Politics of Black Resistance,” American Historical Association Annual Meeting, Philadelphia, January 6, 2006.
“How Much Difference Did the 1965 Voting Rights Act Make?: Black
Ballots and the Civil Rights Movement,” Invited talk, Martin Luther King Jr. Celebration, University of Montana, January 31, 2007. “Still Running for Freedom: Southern Black Votes and the Changing Face of American Politics,” Invited Talk, Understanding the South, Understanding Modern America: The US South in Regional, National and Global Perspectives,” Manchester University, UK, May 23, 2008. “Response to Robin Kelley’s Harmsworth Address--He’s Got the Whole
World in His Hands: US History and its Discontents in the Obama Era” University of Oxford, November 11, 2009.
“Rock ‘n’ Roll, the Payola Scandal, and the Political Culture of
Civil Rights in the 1950s,” Robinson College, University of Cambridge, November 17, 2009.
“The Long and the Short of It: The Long Women’s Suffrage Movement
and the Short Civil Rights Movement,” Invited Talk with Nancy A. Hewitt, King’s College, London, November 18, 2009.
“Long Origins of the Short Civil Rights Movement,” American History
Seminar, University of Cambridge, November 23, 2009. “Still Running for Freedom: Barack Obama and the Legacy of the
Civil Rights Movement,” Invited Talk, Queen’s University, Belfast, UK, December 8, 2009
“The Long and the Short of It: The Women’s Suffrage and Civil
Rights Movements,” with Nancy Hewitt, University of Sussex, February 27, 2010
“The Long Origins of the Civil Rights Movement,” Harry Allen
Memorial Lecture,” Institute for the Study of the Americas, March 1, 2010
“The Short Civil Rights Movement, 1954-1968: The Case for Change,”
University of East Anglia, March 17, 2010.
JA1327
Case 1:13-cv-00660-TDS-JEP Document 117-7 Filed 05/19/14 Page 81 of 91
10
“The Long Origins of the Short Civil Rights Movement, 1954=1968,”
Keynote Address, Scottish American Studies Association, University of Edinburgh, March 19, 2010.
“The Long and the Short of It: The Women’s Suffrage and Civil
Rights Movements,” with Nancy Hewitt, Visiting Milbauer Professors, University of Florida, March 18, 2011.
“Rethinking Martin Luther King, Jr. and Malcolm X,” Beacon
School, April 12, 2011. “The Short Civil Rights Movement,” Gilder-Lehrman Summer
Institute on the Civil Rights Movement, University of Cambridge, July 2012.
“Lyndon B. Johnson: The Last Liberal President of the Twentieth
Century,” St. Francis College, Brooklyn, NY, January 29, 2013.
Grants and Awards Phi Alpha Theta prize for best first book, Black Ballots, 1977. National Endowment for the Humanities, Summer Seminar, University of Texas, 1978. [culminated in In Pursuit of Power] National Endowment for the Humanities, Summer Research Stipend, 1979. [culminated in In Pursuit of Power] Choice, Outstanding Book, 1986, for In Pursuit of Power. American Council of Learned Societies, Grant-in-Aid,
1979.[culminated in In Pursuit of Power] Fellow, National Humanities Center, 1987-1988 [culminated in
Running for Freedom] Outstanding Faculty Teaching Award, College of Social and Behavioral Sciences, University of South Florida, 1989. Outstanding Scholar-Teacher Award, Rutgers University, 2006. Mellon Senior Visiting Scholar, Cambridge University, 2009-2010. Visiting Milbauer Professor, University of Florida, March 15-18,
2011.
JA1328
Case 1:13-cv-00660-TDS-JEP Document 117-7 Filed 05/19/14 Page 82 of 91
11
Administration Chairperson, History Department, University of South Florida, 1983-86 Chairperson, History Department, University of North Carolina,
Greensboro, 1992-1998 Vice-Chair for Undergraduate Education, History Department, Rutgers
University, 2000-2003 Faculty Director, Aresty Undergraduate Research Center, Rutgers
University, 2005-2007 Other Professional Activities Managing Editor, Tampa Bay History, 1979-1983. Associate Editor, Tampa Bay History, 1983-1992 Board of Editors, Journal of Southern History, 1982-1986. National Endowment for the Humanities, grant reviewer, College Teachers Fellowships Program, 1982, 1983, 1984. Consultant, NAACP, Tampa-Hillsborough County, Florida at-large elections case, Warren v. Krivanek, 1983-1985. Member, Florida Governor's Commission to Plan Celebration of Martin Luther King, Jr.'s birthday, 1985. Consultant, "Eyes on the Prize: A Television Documentary of the Civil Rights Years," Parts I and II, Blackside Inc. Consultant and Expert Witness, Concerned Citizens of Hardee County, Florida v. County Commissioners of Hardee County, 1988-89. Member, Elliot Rudwick Book Prize Committee, Organization of American Historians, 1990-91. Consultant and Expert Witness, U.S. v. Georgia, majority vote, run- off election case, 1991-1995. Expert Witness, Brooks v. Miller, majority vote, run-off election case [Georgia], 1996.
JA1329
Case 1:13-cv-00660-TDS-JEP Document 117-7 Filed 05/19/14 Page 83 of 91
12
Co-Director with William A. Link, North Carolina Politics Project,
Southern Oral History Program, University of North Carolina-Chapel Hill, 1995-96.
Nominating Committee Member, Southern Historical Association, 1996. Member, Eric Barnouw Award Committee, Organization Of American Historians, 1998- [Committee chair, 1999] Chair, Owsley Prize Committee for most Distinguished Book in Southern History, Southern Historical Association, 2001. Co-Chair, Southern Historical Association Program Committee [Houston, Texas, 2003]. Consultant and interviewee, Civil Rights, CBS News Productions, (video tape)2001. Mentor, Faculty of Arts and Sciences Honors Program (three students), 2001-2008 Advisor, Academic Challenge [high school students], Rutgers
University, 2001-02, “Manhattan Project,” and 2002-03, Brown v. Board of Education
Lecturer, Distinguished Lecturer Series, Organization of American Historians, 2003-2006
Convocation Speaker, Rutgers College, August 29, 2003. Rutgers College Fellow, 2004-2008 Executive Committee, Rutgers College Honors Program, 2002-2008 Discussion Leader and Panelist, Rutgers College Honors Program on
Tim O’Brien’s, The Things They Carry, August 28, 2003 (required of all entering honors students.)
Chair, External Review Committee (3 members) of the History
Department at the City College of New York, March 30, 2004. Directed Workshop for High School Teachers sponsored by the RCHA on
the topic, “The Cold War and the Culture of the 1950s,” April 2, 2004 and April 1, 2005.
Directed Workshop for High School Teachers sponsored by the RCHA on
the “1960s), March 31, 2006.
JA1330
Case 1:13-cv-00660-TDS-JEP Document 117-7 Filed 05/19/14 Page 84 of 91
13
Directed Workshop for High School Teachers sponsored by the RCHA on
the topic, Civil Rights Movement, February 21, 2003, March 30. 2007
Filming as Expert Historian on the Civil Rights Movement, May 17,
2004, Transforming America: U.S. History Since 1877, 26-part video series, LeCroy Center for Educational Telecommunications, Dallas, Texas.
Workshop on the Civil Rights Movement and American Politics,
Generations: A Biographical Approach to American History,” Institute in American History, sponsored by Millersville State University, July 22, 2005, Harrisburg, PA.
Chair, External Review Committee (4 members) of the History
Department at the University of Florida, March 25-29, 2006 Lecture on Civil Rights and Black Power to college-credit class on
African American History supervised by Professor Don Roden, August 1, 2005, July 13, 2006, July 14, 2008 Mountainview Correctional Facility, Clinton, NJ.
Workshop with Nancy Hewitt, “The Circle of We: The Expanding Definition of American Citizenship: Battles for the Ballot, African-American and Women’s Suffrage Movements,” October 7, 2006, Miami, Florida, Florida Humanities Council. Participant, “The Object of History: Greensboro’s Woolworth Lunch Counter” George Mason University, Center for History and the New Media,” four one hour interviews and podcasts, March 2,9, 16, and 23, 2007. Participant, “Symposium: Ordinary People, Extraordinary Times/The Black Freedom Movement, 1960s to the Present.” Rutgers University, March 7, 2007. Presentation on the “Long 1960s and the Chicago 7(8) Trial,”
weeklong seminar hosted by the Federal Judicial Center and the American Bar Association, June 26, Washington D.C.
Leader, National Humanities Center, Online Seminar for Teachers,
“Rethinking Martin Luther King, Jr. and Malcolm X,{February 22, 2011.
Consultant, National Parks Service, Projects on Desegregation and
Public Accommodations and Minority Voting Rights.
JA1331
Case 1:13-cv-00660-TDS-JEP Document 117-7 Filed 05/19/14 Page 85 of 91
14
Consultant on Voting Rights Act Exhibit, National Civil Rights
Museum, 2012. External Reviewer, Department of History, University of Arkansas,
Little Rock, February 4-7, 2013. Manuscript referee, Blackwell Publishers, Columbia University
Press, Oxford University Press, Scott-Foresman and Company, University College of London Press, University Press of Florida, University of Georgia Press, University of Illinois Press, University of Kansas Press, University of Michigan Press; University of North Carolina Press, University of Tennessee Press, Historian, Journal of American History, Journal of Policy Studies, Journal of Southern History, Journal of Women’s History, Political Science Quarterly, Southwestern Historical Quarterly, University College of London Press, Rutgers University Press, University of Missouri University Press.
JA1332
Case 1:13-cv-00660-TDS-JEP Document 117-7 Filed 05/19/14 Page 86 of 91
IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
UNITED STATES OF AMERICA, Plaintiff, v. THE STATE OF NORTH CAROLINA, et al., Defendants.
SUR-REBUTTAL DECLARATION OF STEVEN F. LAWSON, Ph.D. Case No. 1:13-CV-861
1. I have read the rebuttal declarations of Sean P. Trende, Thomas B. Hofeller, Janet R.
Thornton, Donald Schroeder, and Thomas H. Fetzer, Jr.
2. I am confident that the data that I derived and used from the report of Dr. Charles
Stewart, an expert witness for the United States, remain uncontradicted and accurate.
3. None of the rebuttal reports challenges the conclusions I reached in my report that the
North Carolina General Assembly passed and the governor signed into law an omnibus measure
that they knew from the facts presented at the time would disproportionately disadvantage
African-American voters. The General Assembly and governor had ample evidence before them
that in reducing early, in-person voting from 17 days to 10 days, eliminating same-day
registration, and ending the counting of provisional ballots cast out of precinct, they were
targeting measures that were very popular with and had benefitted African American voters.
4. The rebuttal report of Thomas Hofeller reinforces my conclusion that the elimination of
one Sunday during the early voting period would disproportionately disadvantage African
American voters. Hofeller agrees that Sunday voting in 2012 significantly benefitted African
JA1333
Case 1:13-cv-00660-TDS-JEP Document 117-7 Filed 05/19/14 Page 87 of 91
2
Americans (see Hofeller declaration paragraphs 69-74). He reaches the same conclusion about
the counting of out-of-precinct provisional votes (see Hofeller paragraph 85).
5. Nothing in the declaration of Thomas H. Fetzer, Jr. contradicts what I have concluded
about the racial intent of the North Carolina General Assembly in passing the 2013 omnibus
election law. He does not address the question of the racial motivation behind HB 589, and the
issues he raises about early voting did not figure into the legislative debates as presented in the
official transcripts and newspaper accounts that I examined.
6. In much of my scholarly writing I seek to place local events within a national perspective.
Trende claims to have the same goal, comparing the provisions in HB 589 with election laws in
states throughout the United States. (Trende, paragraphs 18, 113, 150). Trende’s analysis leads
him to the conclusion that the provisions of HB 589 are similar to the requirements of many
other states. However, he fails to acknowledge that they are regressive by comparison with the
election reforms adopted by North Carolina beginning in 1999 and discussed in my initial report.
By ignoring the history of election reform that preceded the adoption of HB 589, Trende presents
a distorted picture of the sequence of events at issue. Nor does he address the contextual analysis
of legislative decision-making in North Carolina presented in my initial report in this case. The
same is true of the rebuttal report of Donald Schroeder, who also attempts to compare North
Carolina election laws with those of other states without investigating the sequence of events in
the Tarheel State that led to the enactment of HB 589.
7. In fact, Trende’s appraisal of state voting laws ignores the comparison of particular
election laws from other states that North Carolina legislators actually considered in the record of
legislative deliberations leading to the adoption of HB 589. In discussions of the 2013 law,
JA1334
Case 1:13-cv-00660-TDS-JEP Document 117-7 Filed 05/19/14 Page 88 of 91
3
legislators compared North Carolina not to all other states but specifically to Georgia and
Florida. The House Elections Committee heard testimony from the Georgia secretary of state and
the supervisor of elections for Leon County (Tallahassee), Florida. Despite the Georgia official’s
statement of satisfaction with the voter law, his state had less restrictive photo identification
requirements than those North Carolina would adopt, e.g., Georgia allowed voters to use expired
state driver licenses and any identification issued by the United States and any state government
and its agencies. The Florida representative testified that his state had experienced a “nightmare”
in reducing the early voting period and that the impact of this reduction had fallen most heavily
on African American and other minority voters (see Lawson report, paragraph 45). The fact that
North Carolina went ahead with HB 589 in the face of this knowledge provides powerful
evidence that the legislators intended the foreseeable outcome: that African American and other
minority voters would face greater burdens.
8. Trende offers an after-the-fact analysis challenging the contention that Florida’s
reduction of early voting during the 2012 elections disadvantaged African American voters.
(Trende declaration, pp. 37-40). For an analysis of legislative intent, however, the most
important point is that North Carolina lawmakers had before them evidence that Florida’s
reduction of early voting opportunities had a discriminatory effect on African American voters.
They knew from direct testimony that the reduction of the early voting period in Florida had
diminished African American voting opportunities and enacted HB 589 /S.L. 2013-381 anyway.
9. Trende argues that the candidacy of Barack Obama and its success in mobilizing black
registration and turnout in the presidential elections of 2008 and 2012 was just as important as
the election reform laws in increasing African American political participation in North Carolina.
The Obama campaign designed its strategy in North Carolina to mobilize African Americans
JA1335
Case 1:13-cv-00660-TDS-JEP Document 117-7 Filed 05/19/14 Page 89 of 91
4
through early voting and Same Day Registration—to take advantage of procedures then in place.
State lawmakers were fully aware of the efforts of the African American candidate (2008) and
incumbent (2012) and responded in 2013 by removing the procedures that had made possible the
increased political participation of African Americans in North Carolina that, at least in 2008,
contributed to the election of an African American president. Thus his analysis reinforces my
conclusion that racial motivations played a major role in shaping the outcome of H.B
589/S.L.2013-381.
10. In sum, none of the rebuttal reports submitted by Defendants’ experts disputes my finding
that there is a persistent history of racial discrimination in voting in North Carolina that has
extended into the twenty-first century. Nor do they dispute my conclusion that passage in 2013
of H.B. 589/S.L.2013-381 shows that the General Assembly intentionally targeted African-
American voters whom it knew favored and utilized procedures such as early voting, same-day
registration, and the counting of out-of-precinct provisional voting. In addition, the legislative
majority imposed a photo identification requirement for voting that it knew would
disproportionately restrict voting opportunities for African Americans.
11. I am taking this opportunity to correct a statement in my original declaration dated April
11, 2014. In paragraph 14, I wrote that in 1965 the Voting Rights Act covered 41 counties in
North Carolina. The correct figure is 40. Wake County, which was initially covered in 1965 as a
Section 5 covered jurisdiction, bailed out in 1967. Between 1967 and 1975, only 39 counties
were covered under Section 5. In 1975, Congress added language minority provisions to the
Voting Rights Act, and Jackson County, N.C. became a covered jurisdiction because of its
American Indian population. Thus, as of the time of the Supreme Court’s June 25, 2013 decision
JA1336
Case 1:13-cv-00660-TDS-JEP Document 117-7 Filed 05/19/14 Page 90 of 91
5
in Shelby County v. Holder, a total of forty North Carolina counties were covered jurisdictions
under Section 5 of the Voting Rights Act.1
I declare under penalty of perjury that the foregoing is true and correct. Executed this 2nd
day of May, 2014.
Steven F. Lawson
1 See 30 Fed. Reg. 9897 (Aug. 7, 1965) (Attorney General’s determination); 31 Fed. Reg. 19 (Jan 4, 1966) (Director of Census’s determination); 31 Fed. Reg. 3317 (Mar. 2, 1966) (Director of Census’s determination); 31 Fed. Reg. 5080 (Mar. 29, 1966) (Director of Census’s determination); 40 Fed. Reg. 49422 (Oct. 22, 1975) (Director of Census’s determination).
JA1337
Case 1:13-cv-00660-TDS-JEP Document 117-7 Filed 05/19/14 Page 91 of 91