IN THE UNITED STATES DISTRICT COURT FOR THE …moritzlaw.osu.edu/electionlaw/litigation/documents/League1558.pdf · STEVEN F. LAWSON, Ph.D. Case No.: ... Department of Justice to

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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


I declare under penalty of perjury that the foregoing is true and correct. Executed this 11th day of April, 2014.

Steven F. Lawson

JA1318


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


IN THE UNITED STATES DISTRICT COURT FOR THE …moritzlaw.osu.edu/electionlaw/litigation/documents/League1558.pdf · STEVEN F. LAWSON, Ph.D. Case No.: ... Department of Justice to

Documents