THE BLOG
07/02/2013 03:36 pm ET Updated Sep 01, 2013

North Carolina Speeds Up to Run Election Red Light?

Republicans are at it again, making it harder to vote. This time, North Carolina Republicans are contemplating reducing the number of days of in-person early voting, including the Sunday before the election; axing the state's "one-stop" voting which allows people to register and vote in-person early, and implementing a new voter photo identification law that may adversely affect seniors, students and minorities.

It is no coincidence that these major voting changes are being considered a week after the Supreme Court struck down the coverage formula in Section 4 of the Voting Rights Act in the recent decision, Shelby County v Holder. As a result, North Carolina and other states are no longer bound to seek approval from the federal government before implementing their new election laws, formerly required under Section 5.

Before the Supreme Court's momentous decision, changes to election laws contemplated by covered states could be blocked if they had a discriminatory effect. The federal government's review of election changes was successful at preventing discriminatory photo identification laws from being implemented in South Carolina and Texas. Florida was also forced to make modest changes to their implementation of their early voting change prior to the 2012 election -- only a handful of Florida counties were captured in the coverage formula, else there would have been a much greater effect.

Republican politicians have been rushing forward since the fateful Supreme Court decision was handed down, with several formerly covered states immediately moving forward with restrictive voting laws apparently aimed at minorities.

There is a strong case that reducing North Carolina's in-person early voting would adversely affect African-Americans and Democrats.

In 2012, over 60 percent of North Carolinians, or 2.8 million people, voted early either in-person or by mail. The balance was tilted towards in-person early voting, with 93 percent of early voters casting a ballot in-person and 7 percent voting by mail. In 2012, African-Americans constituted 29 percent of in-person early voters, but only 9 percent of absentee voters.

With racial discrepancies like these, not surprisingly registered Democrats were 49 percent of in-person early voters while registered Republicans were 30 percent. The numbers were flipped for absentee voters, with registered Republicans outnumbering Democrats 50 percent to 28 percent.

The Supreme Court did not give states a green light to implement new election laws, they gave a yellow light. States are still bound by Section 2 of the Voting Rights Act. Section 2 says that if it can be shown in court that a law has a discriminatory effect then the law will be struck down.

Indeed, Justice Kennedy -- who joined the majority in overturning Section 4 -- might be willing to entertain such lawsuits. In the Shelby oral hearing he stated, "... it seems to me that the government can very easily bring a Section 2 suit" (p. 24).

Section 2 litigation is more burdensome than the Section 5 preclearance regime, but Kennedy is signaling that he would entertain a Section 2 lawsuit when a new election law may have a discriminatory effect. A further danger for states like North Carolina rushing to implement new their new laws is Section 3 of the Voting Rights Act, which allows courts -- at their discretion -- to place jurisdictions found to have Section 2 voting rights violations back into Section 5 review.

So, Republicans would be wise to remember that they are still bound by Section 2 of the Voting Rights Act. If they interpret the Supreme Court's yellow light as an opportunity to speed up and implement new laws without foresight, they may themselves running a red light. The penalty may not be only an overturning of the offending law, but some proverbial jail time, too.