Last Friday a divided, three-judge panel of the North Carolina Superior Court handed a small victory to groups determined to protect voting rights. These rights are being eroded by state laws under the deceptive label of protecting “election integrity.” The court struck down North Carolina’s voter identification law because it had a disproportionate impact on minority groups and would make it harder for Black people to vote.
In so doing, it offered an example of the important role state courts can play in an era when conservatives dominate the federal judiciary. More important, it offered a model of anti-racist jurisprudence.
The court’s decision resurrected an older and often demeaned theory of discrimination and gave the lie to the United State Supreme Court’s recently expressed view that voter identification requirements are nothing more than “mere inconveniences” inevitably associated with any voting scheme.
It echoed Justice Elena Kagan’s argument that “racial discrimination and racially polarized voting are not ancient history. Indeed, the problem of voting discrimination has become worse …Weaken the Voting Rights Act, and predictable consequences follow: yet a further generation of voter suppression laws.”
The North Carolina voter identification law proves the accuracy of Kagan’s prediction: The weakening of the Voting Rights Act has allowed voter suppression laws to flourish.
Indeed, the Supreme Court has provided what The New Republic’s Matt Ford calls “a blank check for Republican state lawmakers: So long as they invoke voter fraud and don’t say anything too egregious, the Supreme Court will have their back.”
Moreover, the court has erected procedural and evidentiary hurdles that make it harder to challenge those Republican efforts.
As law professor Jamelia Morgan explains, federal court voting rights decisions have demonstrated “increasing reluctance to accept circumstantial evidence of discriminatory intent. Stated differently, these courts have declined to draw the inference that the challenged electoral policy or practice, when combined with historical and social factors, deprive minority individuals of the right to vote on account of race, and in some cases have required an evidentiary showing amounting to express discriminatory intent.”
Fortunately, the North Carolina court took a different path, insisting that what it called a “sensitive inquiry into such circumstantial and direct evidence of intent” is precisely what is required in the highly charged area of voting rights.
Such an inquiry is central to anti-racist jurisprudence. That jurisprudence challenges existing laws and practices for their hidden biases about race and power and their impact on the lives of persons of color.
An anti-racist jurisprudence treats racism, following Ibram X. Kendi’s definition, as “a marriage of racist policies and racist ideas that produces and normalizes racial inequities.” Racial inequity, Kendi notes, occurs “when two or more racial groups are not standing on approximately equal footing.” A racist policy is “any measure that produces or sustains racial inequity between racial groups.”
Without citing him, the North Carolina court took up Kendi’s call to focus on racial inequities and offered a convincing four-part test to assess the potential racism of the state’s voter identification law.
That test starts by highlighting “the law’s historical background.” It then requires examination of “the specific sequence of events leading to the law’s enactment, including any departures from the normal procedural sequence, the legislative history of the decision, (and) the impact of the law and whether it bears more heavily on one race than another.”
The court found that “North Carolina has a long history of race discrimination generally and race-based vote suppression in particular … When minority citizens have gained political power in North Carolina, the party in power has moved to constrain that political participation, particularly when those minority voters, because of the way they vote, posed a challenge to the governing party at the time.”
Examining the events leading up to the passage of the voter identification law, the court determined that the process used was “unusual and deviated from normal procedure.” The legislature passed the law in the “immediate aftermath of a (court) decision striking down racially gerrymandered districts.”
The court found that the law was enacted in what it called “a rushed process that left insufficient time to consider and redress concerns about the law’s impact on minority voters.”
And, as to the impact of the voter identification law, the court said that there was clear and convincing evidence that it “bears more heavily on African American voters. African American voters,” it said, “are more likely to lack qualifying IDs than white voters.”
The court made quick work of the state’s argument that the new law was necessary to protect the integrity of state elections. In fact, “it is reasonable,” the court said, “to assume that a voter ID law that intentionally targets one group of voters in a discriminatory manner would reduce, rather than enhance, public confidence in election integrity.”
In the end, the court held that North Carolina’s voter identification law was exactly the kind of racist policy that Kendi described. It said that this law “would not have been enacted in its current form but for its tendency to discriminate against African American voters.”
At a time when the Supreme Court and the federal courts have largely turned their back on the project of dismantling American racism, the North Carolina decision exemplifies the important role state courts can play in that struggle.
We have come a long way from the moment in American history when states’ rights arguments were used simply to resist the federal government’s attempt to end racial segregation.
As former Supreme Court Justice William Brennan once said, “Federalism need not be a mean-spirited doctrine that serves only to limit the scope of human liberty. Rather, it must necessarily be furthered significantly when state courts … protect the people of our nation from governmental intrusions on their freedoms.”
State courts now need to heed Brennan’s call and stand ready to reinstate rights that the Supreme Court is eroding. North Carolina shows one way to get it done.
Austin Sarat is the William Nelson Cromwell Professor Jurisprudence and Political Science at Amherst College. He is author of numerous books on America’s death penalty, including “Gruesome Spectacles: Botched Executions and America’s Death Penalty.” Follow him on Twitter @ljstprof.