During the 2014 election, Gwendolyn Farrington worked 72 hours a week putting bolts in transmissions for AW North Carolina, a transmission supplier for Toyota. With limited time between when she left work and picked up two sons from school on Election Day, Farrington, who is from Durham, decided to vote at a polling place that was closer to work rather than her assigned precinct.
“There’s almost zero flexibility,” Farrington testified in federal court in Winston-Salem on Monday. “Any time off, twice, even being late to work twice you could be fired.”
She later learned that her ballot had been thrown out.
Farrington was one of five African-American citizens, including a Marine-turned-information systems tech, a retired sharecropper, a drug and alcohol counselor and a senior citizen without transportation, who testified in N.C. NAACP vs. McCrory that they had been disenfranchised. They told the court they had tried to vote in last year’s election at the wrong precinct out of necessity or misinformation; in one case the state Division of Motor Vehicles had erred in processing a voter registration update.
The elimination of out-of-precinct provisional voting is only one feature of the 2013 omnibus election reform law, also known as the “monster” voting law, that the North Carolina NAACP and other plaintiffs, including the U.S. Justice Department, are seeking to overturn. Other disputed provisions include the elimination of same-day registration and the curtailment of early voting from 17 to 10 days.
“The plaintiffs will show that the law unduly burdens low-income voters and results in discrimination because they have higher rates of transience, lower rates of education and lower rates of vehicle ownership, particularly burdening black voters,” Allison Riggs, a lawyer for the Durham-based Southern Coalition for Social Justice, pledged at the outset of the trial.
The plaintiffs, led by the North Carolina NAACP, have framed the federal case as a historic moment. The first day of the trial drew civil rights activists by the busload from as far east as Onslow County, while College Democrats from Watauga County in the state’s northwest corner came to monitor the court proceedings. The day culminated with a rally at Corpening Plaza attended by an estimated 3,500 people.
“The NAACP and other plaintiffs understand that this is a pivotal moment in North Carolina and U.S. history,” said Penda Hair, lead attorney with the Advancement Project in Washington, D.C., during opening statements. “What happens in this courtroom this week will have a decisive impact on African-Americans and Latinos, and on the Voting Rights Act.
“This is our Selma!” she added, connecting the trial to the repression of civil rights activists that pressured Congress to pass the Voting Rights Act 50 years ago.
In response, lawyers for the state of North Carolina portrayed the new law as well within the mainstream, characterizing them as “majority rules.” Thomas Farr of Raleigh, lead attorney for defense, called the historic comparison to Selma “a pretty strong accusation,” adding, “nobody in this courtroom looks back at what happened in Selma without feeling disgust.”
He asked, “What is the dastardly thing that North Carolina has done? Eliminate out-of-precinct provisional voting? The state of New York has no out-of-precinct voting. Eliminate same-day registration? The state of New York has no same-day registration. Curtail early voting? The state of New York has no early voting.”
A year ago, U.S. District Court Judge Thomas Schroeder telegraphed his legal inclinations in a preliminary injunction filed by the plaintiffs, who had hoped to halt the law before the 2014 election. In his order, Schroeder said that the plaintiffs had failed to demonstrate a likelihood of success in their suit, and the election proceeded under the new restrictions.
However, the U.S. Fourth Circuit Court of Appeals in Richmond, Virginia, later reversed Schroeder’s order. In a scorching rebuke, Judge James A. Wynn Jr. wrote that Schroeder had committed “grave errors” by failing to consider whether the law constituted retrogression, overlooking North Carolina’s history of voter suppression and considering each provision of the law separately instead of within a totality of circumstances. Contrary to Schroeder’s finding, Wynn said the plaintiffs are indeed likely to succeed on their claims.
Meanwhile, lawyers for the state have indicated they plan to build their case on new facts that emerged in the 2014 election. They argued that the opponents’ claim that the new election law disenfranchised black voters is undercut by the fact that participation among blacks increased in 2014.
The Rev. William J. Barber II, president of the state NAACP, sought to neutralize the argument during his testimony. Among other unique factors, he noted that Thom Tillis, then the speaker of the state House, was running for U.S. Senate that year.
“People saw this as a chance to fight back against voter suppression,” he said. “One of the architects of the bill was up for election. The 12th Congressional District, one of the districts created to ensure black representation, had an open contest for the first time in decades. This was unprecedented.”
The trial is expected to continue for two weeks.