2013 Legislative Report: At Whose Expense Will "Restoring Faith" in Our Election System Come? Part 2

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Summer research assistant Brent Ducharme returns to the topic of the recently signed election reform bill focusing on the changes to early voting and the disparate impact those changes will have on voter participation, particularly among minority communities.

In April, members of the North Carolina General Assembly introduced the VIVA bill as an effort to establish a voter ID law in our state, as I wrote about previously. By the time the bill returned to the state House in the final week of July, both its name and content were expanded and the debate surrounding it was more fervent than ever.

The VIVA/Election Reform bill’s impact on early voting in North Carolina has been at the center of the argument. Early, in-person voting is currently permitted in 32 states[1] and has been used in North Carolina since the 2000 General Election. Regardless of political affiliation, North Carolinian voters “like early voting because it works in their schedule,” according to former State Board of Elections director Gary Bartlett.[2] Statistics support Mr. Bartlett’s claim. Nearly 2.4 million early, in-person votes were cast by North Carolinians in the 2008 General Election,[3] accounting for roughly 55% of votes in the state.[4] Early, in-person votes rose to over 2.5 million in the 2012 General Election.[5]

Regardless of early voting’s popularity in North Carolina, the VIVA/Election Reform bill will alter the early voting process significantly.[6] Under the bill, same-day registration during the early voting period will be eliminated.[7] The early voting period will be reduced from 17 days to 10.[8] Despite this, counties must ensure the same cumulative number of early voting hours available in prior elections will be available going forward.[9] The need to squeeze the same amount of early voting hours into fewer days will be met through expanded hours each day or additional early voting sites. While expanded hours may be necessary on some days, North Carolinians will certainly not see more hours to vote on the Saturday before Election Day. The VIVA/Election Reform bill includes a 1:00 PM cutoff for that day, eliminating a four hour window that previously allowed counties to accommodate long lines.[10]

These changes to early voting are likely to disproportionately impact some groups of North Carolinians. Data from the 2012 General Election shows that registered Democrats accounted for nearly half of all early votes cast in North Carolina, while Republicans accounted for just over 30%.[11] Women cast nearly 56% of our state’s early votes that same year.[12] North Carolinians over the age of 60 were more than two-and-a-half times as likely to vote early than individuals aged 18-29.[13]

The effort to limit early voting also comes against a recent backdrop of significant participation among black voters in North Carolina. Nationally, the 2012 General Election gained attention for seeing a turnout rate of 66% among black citizens.[14] The turnout rate among black citizens in North Carolina – 80.2% – was one of the highest in the country.[15] Black voters accounted for 27.4% of early votes in our state.[16]

With the participation of black voters in mind, it is particularly concerning that a shorter early voting period means less Sunday voting. Sundays have proven integral to black participation in early voting, as Souls to the Polls initiatives have helped mobilize black congregations in North Carolina, and across the country, by providing free transportation to and from the polls.

The North Carolina General Assembly is not the first state legislature to limit early voting. Republican-controlled legislatures in five states did so prior to the 2012 General Election.[17] Florida was included in that group, reducing its early voting period to 8 days. This contributed to a demand on voting centers that election officials simply were not ready for. Data collected by the Orlando Sentinel suggests that long lines on Election Day caused at least 201,000 Floridians to leave polling stations before casting their vote.[18] In some counties, voters waited until past midnight to get their vote in.[19] Florida officials took notice. By May of this year, a bill loosening restrictions on early voting was passed by the state legislature and signed into law.[20]

Despite the cautionary tale from Florida, members of the North Carolina General Assembly voted to pass the VIVA/Election Reform bill on July 25. The legislature’s votes highlight the contentious nature of the expansive bill. The state Senate passed the bill 33-14, in a vote split entirely along party lines. The state House passed the bill 73-41, also voting along party lines. Among the 41 House Democrats who voted against the VIVA/Election Reform bill,[21] there were four who supported the less expansive voter ID bill that sat before them in April.[22] On August 12, the VIVA/Election Reform bill received Governor Pat McCrory’s signature as promised.

With the bill now law, North Carolina has taken center stage in the ongoing discussion regarding the federal government’s ability to utilize the Voting Rights Act (VRA) to protect against potentially discriminatory state election laws. This issue has been prompted by the United States Supreme Court’s decision in Shelby County v. Holder,[23] which invalidated the formula used to apply federal pre-clearance of election laws under Section 5 of the VRA.

Although the Shelby County decision undercut the federal government’s ability to require pre-clearance, the Department of Justice is poised to used Section 3 of the VRA in a similar fashion. Section 3 allows for a state to be “bailed in” to the pre-clearance requirement if intentional discrimination is proven in a challenged election law. Attorney General Eric Holder recently announced the DOJ is pursuing such a pre-clearance requirement for Texas, following evidence of intentional discrimination in the state’s redistricting plan.[24] Holder suggested similar action would be pursued elsewhere,[25] and the VIVA/Election Reform law makes North Carolina a likely candidate to be next in line.

[1] http://www.ncsl.org/research/elections-and-campaigns/absentee-and-early-voting.aspx

[2] http://www.newsobserver.com/2012/11/03/2460583/27-million.html (no longer valid)

[3] http://elections.gmu.edu/early_vote_2008.html (no longer valid)

[4] http://www.ncsbe.gov/content.aspx?ID=70 (no longer valid)

[5] http://elections.gmu.edu/early_vote_2012.html (no longer valid)

[6] House Bill 589, available at http://www.ncga.state.nc.us/Sessions/2013/Bills/House/PDF/H589v8.pdf (PDF)

[7] House Bill 589, Section 16.1, available at http://www.ncga.state.nc.us/Sessions/2013/Bills/House/PDF/H589v8.pdf (PDF)

[8] House Bill 589, Section 25.1, available at http://www.ncga.state.nc.us/Sessions/2013/Bills/House/PDF/H589v8.pdf (PDF)

[9] House Bill 589, Section 25.2, available at http://www.ncga.state.nc.us/Sessions/2013/Bills/House/PDF/H589v8.pdf (PDF)

[10] House Bill 589, Section 25.1, available at http://www.ncga.state.nc.us/Sessions/2013/Bills/House/PDF/H589v8.pdf (PDF)

[11] http://elections.gmu.edu/early_vote_2012.html (no longer valid)

[12] Id.

[13] Id.

[14] https://www.census.gov/prod/2013pubs/p20-568.pdf (PDF)

[15] U.S. Census Bureau, Voting and Registration in the Election of November 2012 (Table 4b), available at http://www.census.gov/hhes/www/socdemo/voting/publications/p20/2012/tables.html

[16] http://elections.gmu.edu/early_vote_2012.html (no longer valid)

[17] http://www.brennancenter.org/analysis/election-2012-voting-laws-roundup

[18] http://articles.orlandosentinel.com/2013-01-29/business/os-voter-lines-statewide-20130118_1_long-lines-sentinel-analysis-state-ken-detzner

[19] http://www.reuters.com/article/2013/05/04/us-usa-florida-voting-idUSBRE94300K20130504

[20] http://www.flsenate.gov/Committees/BillSummaries/2013/html/562

[21] http://www.ncga.state.nc.us/gascripts/voteHistory/RollCallVoteTranscript.pl?sSession=2013&sChamber=H&RCS=1337

[22] http://www.ncga.state.nc.us/gascripts/voteHistory/RollCallVoteTranscript.pl?sSession=2013&sChamber=H&RCS=350

[23] http://www.supremecourt.gov/opinions/12pdf/12-96_6k47.pdf (PDF)

[24] http://www.justice.gov/iso/opa/ag/speeches/2013/ag-speech-130725.html

[25] Id.

Posted by Brent J. Ducharme on Thu. August 29, 2013 1:47 PM
Categories: 2013 Legislative Report, Student Research, Through Our Eyes

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