As their supporters rallied outside the courthouse last month, several black and Latino voters took the stand in a federal lawsuit over the North Carolina Legislature’s 2013 voting bill. Terrilin Cunningham testified that she attempted to vote early on a Sunday before the 2014 election, as she had in the 2012 election. She showed up at the wrong precinct and cast a provisional ballot. But her vote was not ultimately counted under new voting rules. Cunningham said, “I expected it [to] count and when it didn’t, I lost faith in North Carolina. I don’t understand why it was so great in 2012 and not in 2014.”
Between the 2012 and 2014 elections, the North Carolina Legislature passed a bill that cut early voting, ended preregistration, toughened standards for provisional ballots, created a voter ID requirement, and implemented other changes that could keep voters from casting a ballot. The bill came weeks after the U.S. Supreme Court struck down a provision of the Voting Rights Act that required states and counties with a history of voting discrimination, including much of North Carolina, to preclear voting changes with the U.S. Department of Justice or a federal court.
Given the lack of preclearance under the Voting Rights Act, advocates for voting rights have turned to state courts to protect access to the ballot by challenging stricter voter ID requirements and other voting laws. A recent brief from Professor Joshua Douglas and the American Constitution Society notes that while the U.S. Constitution does not include a general right to vote, all state constitutions do.
Another lawsuit recently began in a Wake County, North Carolina, court to determine whether the North Carolina Legislature’s voter ID requirement violates the state constitution and Section 2 of the Voting Rights Act, which prohibits voting laws intended to disenfranchise certain voters and laws that disproportionately affect certain groups. The trial began with arguments about some very recent changes to the voter ID requirement. In July, the Legislature allowed voters who had difficulty obtaining an acceptable ID to cast a provisional ballot, but the plaintiff voters argue that this still violates the state constitution, which lists all the qualifications that citizens must meet to vote.
North Carolina legislators argued before the state supreme court that they increased the black populations in certain districts to ensure that they could not be sued under the Voting Rights Act, which requires legislatures to draw districts that offer voters of color a chance to elect their “candidates of choice.” However, the Alabama ruling made clear that legislators cannot take this principle too far by crafting a few districts with a vast majority of black voters, which dilutes the political power of black voters in neighboring districts. The North Carolina Supreme Court used a different approach in its 2014 ruling and recognized that legislators could seek a so-called safe harbor under the Voting Rights Act by creating a number of majority-black districts that is proportional to the state’s black population. But the U.S. Supreme Court’s Alabama ruling cautioned that judges “should not mechanically rely upon numerical percentages but should take account of all significant circumstances.” Rev. William Barber, head of the North Carolina NAACP, said outside the North Carolina Supreme Court on August 31 that legislators had “perverted the ideals of the Voting Rights Act” by “gerrymandering” voters by race.
Despite this tougher standard from the U.S. Supreme Court, the North Carolina Supreme Court could again uphold the redistricting map. The state supreme court, after all, has been shaped by millions of dollars from a group that helped draw the map at issue. The Republican State Leadership Committee, or RSLC, was—by far—the biggest spender in the past two state supreme court elections. Money from the RSLC accounted for nearly half of the $2.5 million spent to keep a conservative majority on the court in 2012. The RSLC spent around $1 million on North Carolina Supreme Court races in 2014.
After the 2012 election, the plaintiffs in the redistricting lawsuit asked the judge who benefited from the RSLC’s money to recuse himself, but he refused. A 2014 analysis from the Center for American Progress graded states’ recusal rules and gave North Carolina an F—a mere 35 points out of 100. The analysis concluded that until the state supreme court justices strengthen their ethics rules “to address campaign cash, major campaign donors will continue to face judges whom they helped elect.”
If advocates for voting rights want a level playing field in state courts, they must push for reforms to judicial selection. The same partisan interests with a stake in voter suppression are funding the campaigns of the judges who will approve their agendas. Americans in states with elected judges must demand that state supreme court justices implement ethics rules that would keep them from hearing cases involving their campaign contributors.
Switching to a judicial appointment system would certainly keep partisan campaign cash from dominating the judiciary. Douglas’ brief analyzed several state supreme courts’ voting rights decisions and concluded that “appointed judges or judges who will face only retention elections are better at broadly construing the right to vote and including political minorities in the democratic process.”
For almost a decade, North Carolina had a public financing program for judicial candidates, which resulted in a diverse state supreme court that was not beholden to campaign donors. But this program was repealed by the North Carolina Legislature in 2013. State legislators should create and fund public financing programs that can minimize the influence of big-money campaign donors. The judges who define the scope of voting rights should not be elected with money from groups that benefit from voter suppression.
Billy Corriher is the Director of Research for Legal Progress at the Center for American Progress, where his work focuses on state courts and the influence of political contributions on judges.