North Carolina’s 2013 Voting Laws Were Struck Down By the 4th Circuit, But The State May Not Be Out of the Legal Fights Yet

By: Blake Willis

When the Fourth Circuit struck down North Carolina HB 589, the notorious law which toughened voter-ID requirements, limited early voting, and limited same-day registration, many who champion voter rights believed that North Carolina’s long-standing history as a state with suppressive voter laws may begin to change. However, that optimism may be short lived as North Carolina is now facing challenges on two other election law provisions.

In July, the Fourth Circuit in NAACP v. McCrory struck down a North Carolina law, enacted shortly after the decision in Shelby County v. Holder. While the decision was expansive and cut most voter-restrictive portions of the law, it did not strike down one portion of the law which removed the option for voters to straight-ticket vote. This voting option, which allows voters to cast a straight ticket (voting essentially by party, and not by particular candidate), has been allowed in North Carolina since 1909 when the secret ballot initiative was adopted. In the 2010 election 40% of voters in North Carolina used this provision in 2010, while 50% used it in 2012.

The removal of this option may have staggering consequences. According to a Pew poll, North Carolina has the longest voter wait times in the country as of 2014, which was the first time that the straight ticket option was discarded. Experts believe that these long lines will result in deterrence of voter turnout, and increased numbers of incomplete ballots – both results which they argue will disproportionately affect African American and other minority communities, which have used straight ticket voting at staggeringly higher rates than non-minority communities in previous elections. While this is likely to cause a controversy, the Supreme Court has never held that there is a right to not wait in line to vote, or that a ban on straight ticket voting is illegal. In fact, 40 other states currently have bans or restrictions on straight ticket voting. While the Fourth Circuit did not overturn the North Carolina ban on a long-standing practice, this fall, the Supreme Court did stay a decision from a lower court, which struck down a new Michigan law which did away with the practice which had been available for over 125 years – and which voters twice voted to keep available. While this Supreme Court decision was likely the Court avoiding involvement in a state’s election policies close to the election, it may be telling of a new potential challenge which could have sweeping effects across the majority of states in the future.

North Carolina is also facing another challenge to restrictive voter laws. The NAACP, after winning a 3-year legal battle against the state for its repressive voter-ID and registration laws, is now threatening to sue the State Board of Elections again for what it claims are repressive voter registration laws. The North Carolina law (similar to laws in 45 other states) allows for private citizens to challenge other individuals’ registration to vote, by methods such as bringing in a piece of mail that shows the voter no longer lives where he or she is listed as living. The NAACP claims it has received reports of thousands of challenged registrations from counties across the state. The potential challenge to the law would be under a due process standard related to the National Voter Registration Act (NVRA), which requires notice of any proposed challenge. The State Board responded to the allegations, stating that it was compliant with NVRA voter notice requirements, by directly notifying voters in the event that they are challenged, and giving them the opportunity to appear in court to contest the challenge against them.

The NAACP is also alleging that the sheer volume of challenges which are occurring in North Carolina counties this close to the election may constitute a purge, or massive expulsion of voters from the registration records via political or unconstitutional methods. Suit has not been filed yet, but if the NAACP of North Carolina does file, the suit would join challenges which have been brought in other states, such as Georgia. Earlier this year, Common Cause and the Georgia NAACP filed for an injunction against the Georgia Secretary of State for illegally removing thousands of legally registered voters from the registration rolls because they failed to vote in several elections. Ohio has also faced a recent charge of voter purging.

While the North Carolina NAACP has not yet filed suit, with allegations this close to the election, it is unclear what effect such an action would have, given the time it would take not only for a court to examine evidence of a claim, but also for the state to enact any necessary changes. However, even if such claims as voter purging or discrimination due to lack of straight-ticket voting are not effective for this election cycle, suits may prove useful for voting rights activists in protecting voters in future elections.