10 years post-Shelby, N.C. lawmakers advance slate of new voter restrictions and election changes
This month marks the 10th anniversary of the 2013 Supreme Court decision in Shelby County v. Holder. The ruling declared Section 4 of the Voting Rights Act unconstitutional and effectively gutted Section 5 — which had required federal preclearance of election law changes in places with a history of voting discrimination — and federal enforcement of the Act.
An analysis by the Brennan Center for Justice found that, between 1982 and 2006, Section 5 had stopped more than 1,000 potential discriminatory changes to voting laws across the country. As Rep. Terri Sewell (D-Ala.) wrote, "[Section 5] served as a bulwark against the forces that had, throughout our history, sought to silence and suppress the voices of millions of voters of color — from Latino voters in California, to Native American voters in South Dakota, to Black voters throughout the South."
The Section 5 preclearance requirement affected states in the South disproportionately, and so did ending it: Of the 13 Southern states, 11 have adopted new voting laws in Shelby's wake. These include discriminatory voter ID laws, closures of polling places, gerrymandered districts, and voter roll purges — all of which have an outsize impact on Black voters.
The same year as the decision, North Carolina's new Republican majority pushed through House Bill 589, a wide-ranging election law that was quickly dubbed the "Monster Voting Law" by voting rights advocates for its strict photo ID requirement, cuts to early voting, loosening of rules on Big Money political spending, and other measures. Elements of the law were later found to discriminate with "surgical precision" against Black voters.
"I think when we're talking about North Carolina, there's no better place to start to really contextualize what Shelby means for the country then what we saw in the immediate aftermath of the case," Jeff Loperfido, interim chief counsel for voting rights at the Southern Coalition for Social Justice, told Facing South.
Now, a decade later, conservative lawmakers in North Carolina are pushing a set of three major election bills that would dramatically reshape the state's elections and, according to democracy advocates, constitute a new wave of attacks on the freedom to vote.
A new slate of voting restrictions and election changes
The three new North Carolina measures – Senate Bill 747, Senate Bill 749, and House Bill 772 – were introduced after formerly Democratic state Rep. Tricia Cotham (R) switched parties in April and gave Republicans a veto-proof majority in the state's General Assembly.
The North Carolina legislation follows a nationwide trend in Republican-led states to restrict voting access and give GOP political leaders more control over the electoral process. According to the Brennan Center, 11 states have passed 13 restrictive laws, with notable legislation in Arkansas, Florida, and Mississippi.
"I think the legislation we've seen in North Carolina and other parts of the South do two things really well. They make it harder to vote for certain subsets of voters, primarily voters of color, youth voters, voters with disabilities," Loperfido said. "Then they make it harder to administer elections. It's not just the impact on the voters, but it's also the impact on the system, which often leads to more disenfranchising effects at the local level."
Senate Bill 747, the "Elections Law Changes" bill, is a massive package of measures developed with the help of Cleta Mitchell, the current head for the Election Integrity Network and a former Trump attorney who worked to overturn the results of the 2020 presidential election.
The bill takes aim at a favorite target of Mitchell and other election deniers, voting by mail, by proposing a host of new restrictions including removing the current three-day grace period for mail-in ballots, requiring mail-in ballots to be received by the Board of Elections before the polls close on election day, requiring local elections boards to implement signature verification software for mail-in ballots, and mandating two signatures for verification on mail-in ballots. Seizing on another focus of right-wing election groups, the bill also prohibits counties from receiving independent grants to fill budget shortfalls in administering their elections.
Voting advocates also argue Senate Bill 747 opens the door for greater harassment and intimidation of voters. For example, the bill requires election boards to give anyone detailed information about people who avoid serving on a jury because they have told the clerk of court they're not a citizen – information that could be used to harass residents.
"It's one thing for the State Board of Elections to use the information to carefully match and remove people on the voting rolls who are not citizens. It's totally different to let self-appointed 'patriot protectors' use court records to aggressively target individuals on social media and at their home or workplace," longtime democracy advocate Bob Hall recently argued in the Raleigh News & Observer.
Senate Bill 749, titled "No Partisan Advantage in Elections," would modify the structure of the state and county boards of elections, granting state lawmakers more power in the process. The measure would remove the governor's power to appoint board members, increase the makeup of the state Board of Elections from five to eight members, and require equal appointments to the election board from both the state House and Senate and both parties. Supporters of the bill note that the Federal Elections Commission includes equal numbers of Democratic and Republican members, but many of the FEC's investigations have ended in gridlock because votes have tied along party lines. Under current law, the party that controls the governor's office is authorized to appoint a majority of board members. Previous attempts by the legislature to shift the governor's authority have been struck down as unconstitutional.
If the GOP's proposed restructuring results in similar gridlock, voting advocates believe the results could be disastrous for elections: For example, the bill also includes a provision that, if election boards can't agree on early voting plans, the stalemate could possibly lead to to having just one early voting site. It could also result in the failure of election officials to perform routine duties, including certifying election results because of a political stalemate.
Initially filed in April, House Bill 772 – "Poll Observer Appointments, Access & Activity" – was approved by a House Judiciary committee earlier this month. Opponents say the measure would empower far-right poll watchers by permitting partisan poll watchers to move freely around polling locations, to record inside polling places, and to follow elections officials as they move ballot boxes to secure areas after polling sites close. The measure would also make it more challenging to remove poll observers who don't abide by the rules.
Democracy advocates are also concerned about proposed changes that appear in non-election bills. For example, state Republicans' new budget proposal includes a series of measures that overhaul the state's court system and hand greater power over the courts to the legislature, a move that advocates have deemed a "power grab."
The GOP's plan would give the Republican-controlled General Assembly the power to appoint 10 new special Superior Court judges. Currently, all special Superior Court judges have been appointed by the governor. The new legislature-appointed judges would be among the judges selected by the chief justice of the North Carolina Supreme Court – currently Republican Justice Paul Newby – to sit on a three-judge panel to hear challenges to state law, including critical voting rights and redistricting cases.
But democracy advocates in North Carolina are celebrating one piece of news this month: This week, in a 6-3 decision, the U.S. Supreme Court ruled against North Carolina. Republicans in Moore v. Harper, rejecting an extreme version of the "independent state legislature" theory that would have given state legislatures unchecked power over federal elections.
"This is a historic victory for the people of North Carolina and for American democracy," said Bob Phillips, Common Cause North Carolina's executive director in a statement. "Today, the U.S. Supreme Court made clear that state courts and state constitutions should serve as a critical check against abuses of power by legislators. Now, we must ensure our state courts fulfill their duty to protect our freedoms against attacks by extremist politicians."
'Warning for 2024'
Earlier in June, pro-democracy advocates held a press conference in front of the state General Assembly in Raleigh to challenge the sweeping new election changes. The conference included representatives from the ACLU of North Carolina, Black Voters Matter, Common Cause North Carolina, El Pueblo, North Carolina Asian Americans Together, North Carolina Black Alliance, and North Carolina Voters for Clean Elections.
The groups condemned the proposed changes as another attempt to undermine the electoral process and curb voter participation. "Contrary to what some would have you believe; these proposed changes are not about fairness or balance," said Chantal Stevens executive director of the ACLU of North Carolina. "They are thinly veiled attempts to manipulate the electoral system in favor of those who seek to consolidate their power at the expense of the people's voice."
The advocates also warned that the bills could wreak havoc in the 2024 elections while narrowly trying to bolster the GOP chances. "[These] changes will bind elections in ways that are costly for counties, chaotic for voters, and calamitous for our election, giving Republican leaders the results they want in the only election they currently care about: 2024," said Sailor Jones of Common Cause North Carolina. "With these bills, that same care clearly doesn't extend to us."
Democratic Gov. Roy Cooper has been able to use his veto to block restrictive voting bills in the past, but with Republican veto-proof majorities in place in both the North Carolina House and Senate, the measures face less resistance. The Senate elections bills have been referred to the House Committee on Election Law and Campaign Finance Reform, while House Bill 772 has advanced to the Rules Committee.