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“Walk Tall, Or Baby, Don’t Walk At All”: North Carolina May Never See A Celebrity Again

When it comes to fighting anti-LGBT legislation in North Carolina and Mississippi, the entertainment industry has been running laps around sports leagues and putting corporate America to shame.

Yes, PayPal withdrew 400 planned jobs from the Tar Heel State in response to HB 2, which banned local LGBT nondiscrimination ordinances and required transgender people to use public bathrooms matching their birth certificates, but most major companies have simply signed a strongly worded letter to Gov. Pat McCrory asking for the law to be repealed.

After Mississippi’s HB 1523 was passed, many of these same companies sent a similar letter to Gov. Phil Bryant, urging him to repeal the law without detailing any specific consequences for leaving it in place.

But an emerging crew of entertainers isn’t content with this wait-and-see approach. By taking swift and decisive steps, they’re proving how little pro-LGBT press releases mean without concrete actions to back them up.

As soon as HB 2 was passed, for instance, actor and filmmaker Rob Reiner promised that he would “not film another production in North Carolina” until the law is repealed. CEOs take note: Reiner took action immediately and listed a punishment along with a specific condition.

Then, last week, Bruce Springsteen canceled a North Carolina show, highlighting the law’s horrifying anti-transgender provision in his statement. By contrast, the multi-company letter coordinated by the Human Rights Campaign (HRC) and Equality North Carolina does not specifically address this first-in-the-nation attack on transgender rights.

The Boss called his announcement “the strongest means I have for raising my voice in opposition to those who continue to push us backwards instead of forwards.”

Canadian singer Bryan Adams followed in Springsteen’s footsteps shortly thereafter, nixing a scheduled Mississippi concert to protest the state’s sweeping anti-LGBT law. On Facebook, he explained that he “cannot in good conscience perform in a state where certain people are being denied their civil rights due to their sexual orientation.”

And this past weekend, comedian and Community star Joel McHale went ahead with a North Carolina performance but wore an “LGBTQ” shirt and donated all of his proceeds to a local LGBT center. In video taken from the show, McHale asks, “What the fuck is wrong with your government here, you guys?”

It’s not just individual celebrities who are taking decisive steps, either. Lionsgate canceled Charlotte shooting plans and A+E Studios has promised “not [to] consider North Carolina for any new productions” once shooting ends on a new show they are filming around Wilmington. Even porn giant xHamster is now banning all North Carolina IP addresses in order to put pressure on the state to change course.

Outside of the entertainment world, however, condemnation of the anti-LGBT laws may have been sudden and widespread but punitive actions have been fewer and further between.

The NBA could have summarily pulled the 2017 All-Star game from Charlotte. It didn’t. Instead, the league sent out a statement calling HB 2 discriminatory but also cautiously noting that they “do not yet know what impact it will have” on the All-Star plans.

The NCAA is set to host Division I basketball tournament games in North Carolina over the next two years but, instead of relocating the games, the association pledged to “continue to monitor current events.”

The NFL is moving ahead with a May team owners meeting in Charlotte, justifying their decision based on the city council’s support of LGBT rights.

In sum, the major leagues are talking a big game but that’s about it. Their equivocating statements prompted Outsports’ Jim Buzinski to write that “sports leagues shouldn’t say another word about their ‘support’ unless it’s accompanied by action.” Or, as any good coach will tell you, talk is cheap.

Major corporations haven’t been much bolder, largely threatening to “reconsider” or “reevaluate” business in the offending states. Over one hundred businesses have signed on to the HRC letters but the more time passes, the emptier their words become. So far, only a select few businesses have gone beyond mere criticism of HB 2 and HB 1523.

The High Point Market Authority, which has been estimated to have an annual economic impact of $5.38 billion in North Carolina, warned last month that they could lose “hundreds and perhaps thousands of customers” at their annual spring furniture market. And Google Ventures CEO Bill Maris indicated in early April that he would not greenlight investments in any North Carolina startups “until the voters there fix this.”

Springsteen set a high bar for courage that few in the business world have been able to match.

This isn’t the first time that the entertainment industry has taken point in anti-LGBT legislative tussles. In March, Disney—and by extension Marvel—promised to end film production in Georgia if Gov. Nathan Deal did not veto a so-called “religious freedom” law that passed the state legislature.

“[W]e will plan to take our business elsewhere should any legislation allowing discriminatory practices be signed into state law,” the company wrote in a definitive statement.

The NFL, on the other hand, vaguely hinted that they might not host the Super Bowl in Georgia but their official statement was embarrassingly circumlocutory.

“Whether the laws and regulations of a state and local community are consistent with [NFL non-discrimination] policies would be one of many factors NFL owners may use to evaluate potential Super Bowl host sites,” said league spokesman Brian McCarthy.

In March of 2015, when Indiana Gov. Mike Pence signed an anti-LGBT “Religious Freedom Restoration Act,” a few companies like the business review website Angie’s List, which axed a $40 million expansion, made powerful moves.

But in what should by now be a familiar pattern, many corporate leaders chastised the governor without deploying any economic sanctions. The discrepancy prompted Fast Company to make a list of the “companies that are actually boycotting Indiana, not just tweeting about it.”

Among the only key players who actually acted before the Indiana legislature revised the discriminatory law were musicians and actors. The indie rock group Wilco pulled the plug on a show in Indianapolis. Parks and Recreation star Nick Offerman announced he would donate his proceeds from an Indiana University show to the HRC and canceled a subsequent performance in the state.

Repeated entanglements over LGBT rights in the South have proved that governors may not sympathize with LGBT rights but they do respond to economic pressure. So long as corporate leaders remain hesitant to pull out of North Carolina, they will be locked in a game of economic chicken with a state government that does not seem eager to reverse HB 2.

Gov. McCrory’s re-election campaign has claimed that many businesses support the anti-transgender law and one state representative, Ken Goodman, seems more than willing to see if anyone will make good on their threats.

“April Market is not a vacation,” he tweeted in response to the High Point story. “It is critical for buyers. They’ll come.”

It has been illegal for many transgender people to use the right public restrooms in North Carolina for nearly three weeks. Anti-LGBT discrimination has been not just legal, but endorsed by the state of Mississippi, for almost two. At this point, signing a letter is no longer a proportional response to bigotry.

As Bruce himself once sang, “Walk tall, or baby, don’t walk at all.”

 

By: Samantha Allen, The Daily Beast, April 12, 2016

April 13, 2016 Posted by | Discrimination, LGBT, North Carolina, Pat McCrory | , , , , , , , , | Leave a comment

“It Isn’t Rhetorical Or Hypothetical Anymore”: North Carolina’s Magistrates Now Can Legally Ignore Marriage Laws

Sometimes, in the course of writing columns about “religious freedom” laws like the one Gov. Mike Pence tried to pass in Indiana, I’ve mused about what would have happened if such laws had been in effect in 1967, back when the Supreme Court decided Loving v. Virginia. It was in Loving—decided 48 years ago today—that the court ruled it unconstitutional for states to prevent mixed-race marriages. I asked my question rhetorically, hypothetically, to try to highlight the absurdity of states where same-sex marriage is the law also passing laws to permit certain citizens to flout that law.

In North Carolina, it isn’t rhetorical or hypothetical anymore.

On Thursday, the state’s general assembly overrode an earlier gubernatorial veto of Senate Bill 2, meaning that civil magistrates can now refuse to perform not only same-sex marriages if they say that doing so violates their religious beliefs, but any union of which they disapprove on religious grounds.

The vote happened first thing in the morning. “They gaveled us right to order, and they didn’t allow any time for debate,” says assembly member Mary Price “Pricey” Harrison, Democrat of Greensboro. In North Carolina, an override is achieved with three-fifths of present and voting members. SB2 had originally passed the assembly by 67-43, which is 61 percent. Thursday’s vote was 69-4, or 62.7 percent. Harrison told me that some Republicans who might have voted against the bill weren’t present, and that a few members were off at their children’s high-school graduations.

Here’s the background. The state started out with a broad religious-freedom restoration bill of the sort becoming law in more conservative states. There was an outcry; after some wrangling, legislators settled on this bill, limited to magistrates. So this is a “compromise” bill. Remember that North Carolina’s legislature and its governor, Pat McCrory, are about as right-wing as any in the country—all those “Moral Monday” protests have come in response to radical actions the governor and legislature have taken on education, voting rights, the environment, and other matters.

So when legislators walked away from the broader religious-freedom act, they settled on SB2. Some compromise. “The legislation is in some ways even worse than Indiana’s,” Christopher Sgro, the executive director of Equality North Carolina, told me. “These are taxpayer-funded government employees.”

The law is really aimed at same-sexers, but of course legislators knew that they couldn’t single gay people out by name or category, because that would have been too obviously discriminatory. The only way to get around this was to write it more broadly, so the law says: “Every magistrate has the right to recuse from performing all lawful marriages under this Chapter based on sincerely held religious objection.”

Read that again. Recuse from “lawful marriages.” In other words, disobey the law. So, magistrates who still think the races shouldn’t mix can now take that brave stand with the weight of the law behind them. What about a Southern Baptist marrying a Jew? OK, it’s probably a stretch to think anyone would object to that. But what about a Southern Baptist marrying a Muslim? A Muslim marrying an atheist? A citizen marrying a non-citizen in what appears to the magistrate to be mostly a matter of helping the noncitizen gain permanent resident status? As a practical matter, experts think recusals will likely be limited to same-sex marriages, not that that makes this any better, but we’re about to find out what’s theoretical and what’s not.

This is shocking stuff. It’s pretty much at the level of George Wallace defying integration, albeit without the pulse-quickening, schoolhouse-door histrionics. Except this is arguably more extreme because here, North Carolina isn’t defying Washington, but itself. The state passed a ban on same-sex marriage back in 1996 and amended the state constitution in 2011 to emphasize the point. But then, a mostly religious coalition of North Carolinians brought suit, and last year a federal judge seated in North Carolina ruled the state’s ban unconstitutional. The governor, extremist though he is, knew enough law not to fight it, and indeed knew enough law to veto the magistrates’ bill when it came before him.

But now the legislature has spoken, or re-spoken, and overridden him. “It’s unconstitutional, and we all know it’s unconstitutional, and a court is going to throw it out,” Pricey Harrison told me. “It’s a heck of a way to run a legislature.”

The point needs making: Laws like this magistrates’ law and those Pence-style religious-freedom laws have turned the original intention of the federal Religious Freedom Restoration Act of 1993 completely on its head. That law was meant to protect the religious rights of minorities. It emanated from a lawsuit brought by two Native American men who took peyote, they claimed, as a religious rite. The Supreme Court backed them, and then President Clinton signed the RFRA. Protecting minorities from the tyranny of the majority has a long history in this country, back to the famous Federalist No. 10, and in fact the concept goes back to ancient Greece. But now, the majority (or near-majority, depending on which poll you believe) in North Carolina that opposes same-sex marriage can bully the minority.

Now, imagine if these religious-conscience laws had existed in 1967. How long would it have taken for interracial marriage to become the accepted norm in the South? As it happens, we have a partial answer to this question in the form of a story that emanates, again, from North Carolina. In 1976, Carol Ann and Thomas Person, she white and he black, walked into their local courthouse to get their marriage license. As she recently told the story in a column in the Raleigh News & Observer, the magistrate said no. A second magistrate on duty said the same thing, and one of them “took out a Bible and began to lecture us about their religious views and why Thomas and I should not be together.” This was nearly a full decade after Loving.

A court ruled against those two magistrates, and the Persons were soon married. Presumably, a court will toss this magistrates’ law, too. But who’ll be denied a license in the meantime? And what constitutes religious freedom, and what is simply bigotry?

 

By: Michael Tomasky, The Daily Beast, June 12, 2015

June 15, 2015 Posted by | Bigotry, Discrimination, Marriage Equality, North Carolina | , , , , , | 2 Comments

“The G.O.P. Opts Out Of Equality”: Conscience Is Never Just Personal When The Occasion Is A Fraught Debate Over Public Morality

On May 28th, North Carolina Governor Pat McCrory vetoed Senate Bill Two, which proposed allowing public officials to temporarily stop performing weddings based on “any sincerely held religious objection.” In other words, if a public official were confronted by a gay couple who wished to marry, he could refuse to perform the ceremony. McCrory’s veto put the Republican governor at odds with a Tea Party legislature, which immediately promised to override it. On June 1st, the state senate voted to override, and, this morning, the house of delegates did, too, making it legal for North Carolina magistrates to turn away gay couples.

The Bartleby-like public official who “would prefer not to” marry same-sex couples would not have been asked to just one year ago. In 2012, North Carolina adopted a constitutional amendment banning same-sex marriage, in line with thirty other states where a majority at one point opposed it. Then, in June, 2013, the Supreme Court struck down the Defense of Marriage Act, and federal courts turned decisively in favor of gay marriage. In October, 2014, a federal judge ruled North Carolina’s marriage amendment unconstitutional, and same-sex ceremonies began. That month alone, court decisions also lifted same-sex-marriage bans in thirteen other states—Alaska, Arizona, Colorado, Idaho, Indiana, Nevada, New Jersey, Oklahoma, Utah, Virginia, West Virginia, Wisconsin, and Wyoming—more than twice the number of states where same-sex marriage was legal in 2010.

Following this rout, conservatives have moved rapidly from enforcing a unified public morality based on traditional marriage to speaking the language of pluralism as they seek exemptions from the rising legal norm of marriage equality. Their model has been the Religious Freedom Restoration Act (R.F.R.A.), of 1993, which exempts believers from federal laws that “substantially burden” their religious exercise, except where the regulation is the least burdensome way to fulfill a “compelling governmental interest.”

The R.F.R.A.—which was intended to protect neglected religious minorities, such as Native American worshippers who had recently lost public-sector jobs in Oregon because of their ritual use of peyote—was the basis of last year’s Supreme Court decision in Burwell v. Hobby Lobby, which held that certain business owners can refuse to offer insurance coverage for contraception based on their religious objections. The Indiana Religious Freedom Restoration Act, which was signed into law this March, is a model for the state-level expansion of religious exemptions, applying its protections to all corporations and making religious belief a defense in private legal actions, such as anti-discrimination suits. A similar bill passed in Arkansas later that month.

Supporters describe the state R.F.R.A.s and other religious accommodation laws as acknowledging the “increasing religious pluralism in American culture,” and protecting “religious liberties and the freedom to live out religious convictions,” as Russell Moore, the president of the Ethics and Religious Liberty Commission of the Southern Baptist Convention, put it in March. These exemptions, for the individuals, public officials, and business owners who wish to say, “I would prefer not to,” have become the new front in the culture war, the redoubt of attitudes that were recently in the majority. Invoking tolerance to defend intolerance is ironic at best, but at a moment when disapproval of gay marriage looks ever more like plain bigotry, it is better to say not, “I disapprove of you,” but rather, “This is who I am.”

The Bartleby strategy has taken center stage in conservative resistance to a wide range of liberal policies. In 2012, the Supreme Court nearly overruled the Affordable Care Act’s requirement that individuals buy insurance. Five justices voted to protect the consumer’s freedom to opt out of a market, such as the health-insurance market, warning that, if Congress could require this purchase, it could also command people to buy health-club memberships, American cars, or broccoli. (The insurance requirement survived through a sleight of hand, as Chief Justice John Roberts, who agreed with the rest of the Bartleby argument, found a hook for the law in Congress’s constitutional power to impose taxes.) In 2014, the Court held that certain members of public-sector unions could opt out of paying their union dues, which fund organizing and advocacy. Writing for the majority, Justice Samuel Alito argued that mandatory dues impinge on the First Amendment’s rights of free expression and voluntary association, and hinted that dues requirements in general might be found unconstitutional in the future.

As conservatives press these claims for personal exemptions, they have also been highly solicitous of states that would prefer not to accept new federal standards. The Supreme Court did real damage to the Affordable Care Act when, as part of its 2012 ruling, it found that states could not be penalized for refusing to expand Medicaid, which was an essential part of the A.C.A.’s path to near-universal coverage. As a result, twenty-one states have not signed on to the Medicaid expansion, and nearly four million low-income Americans have not obtained health insurance that the federal government intended them to have.

Similarly, Senate Majority Leader Mitch McConnell is urging state governments to disobey the Obama Administration’s order to develop climate-change regulations. McConnell has some support for his argument that the Clean Air Act does not stretch far enough to require these regulations, and there is sure to be litigation on the issue. But his call for a coordinated strategy of passive resistance in the meantime is extraordinary. The more opt-outs any climate policy includes, the more likely it is to fall apart in a wave of free-riding, as everyone decides to let someone else make the sacrifice, leaving no one to make the sacrifice at all.

Of course, a state refusing to make law is different from an individual refusing to bake a wedding cake for a gay couple. Medicaid policy and pollution regulation directly affect millions of people and billions of dollars of economic activity. The argument for conscience-based individual exemptions is that they concern the exempted individual most of all. The problem with this argument is that an individual’s conscience is never just a personal matter when, as in the case of the Hobby Lobby decision, it bears on the terms of employment. Then the person denied contraceptive benefits, or who is looking for a new job where she can get those benefits, is also part of the picture. Economic life is deeply interdependent, and involves conflicting interests and unequal power. This is why, from the New Deal until very recently, the Supreme Court did not permit many opt-outs from economic regulation. The new raft of conscience claims is creating unprotected spaces within an already precarious economy.

A second problem with individual opt-outs is just as basic. Conscience is never just personal when the occasion is a fraught debate over public morality. Once public laws banning same-sex marriage are gone, authorizing supposedly private discrimination against same-sex couples continues the cultural fight by other means. In hindsight, no one doubts that allowing business owners to discriminate against black people during the Civil Rights era would have denied them full equality and hampered desegregation. (Arguably, the continued tolerance of discrimination by private clubs also undermines desegregation, though club membership is less essential to daily life than shopping.) Similarly, allowing private discrimination against gay couples is not an exemption from a new rule of full equality; it is a compromise that allows inequality to persist. Proposals to let magistrates withhold marriage licenses have the same problems, with the added insult that the discrimination is effectively coming from the state. If officials can decide not to implement laws they dislike, then equality under the law—for gay couples, at least —is just a slogan.

The Bartleby position appeals to touchstone liberal values: personal conscience, diversity, tolerance, and autonomy. On their face, these values seem to promise there are no hard conflicts: there is room for everyone’s conscience, everyone’s outlook, and tolerance enough for each person’s freedom. The new generation of opt-outs show that this is a misconception: there is conflict over what these values mean, and there is never enough room for all their meanings. The politics of tolerance, diversity, and autonomy are distributive politics, with winners and losers.

From Thoreau’s night in jail protesting slavery and the Mexican-American War to the Greensboro lunch-counter sit-ins, sitting still and not doing as you are told has been among the most potent of political tactics, though its effects are often complex and long delayed. As in much else, initiative in this tradition of creative refusal belongs to the political right today. There is no paradox in conservatives using liberal values and tactics to their ends. By the same token, there should be no liberal embarrassment in resisting. There is no incoherence here, but there is disagreement too sharp for tolerance alone to resolve it.

 

By: Jedediah Purdy, The New Yorker, June 11, 2015

June 13, 2015 Posted by | GOP, Marriage Equality, North Carolina | , , , , , , , , | Leave a comment

“GOP’s ‘Reparations’ Insanity”: Why Thom Tillis’ Latest Screwup Is So Important

History may ultimately remember GOP Senate candidate Thom Tillis as one of the only Republicans in North Carolina history to serve as speaker of the House. And if he manages to defeat Sen. Kay Hagan this November, history may ultimately remember Tillis as a bona fide member of the United States Senate. But while history’s verdict is still to be determined, my estimation of Thom Tillis is already set. Simply put, he’s the (despicable) gift that keeps on giving.

By the second time Tillis made news by giving voice to the base of the Republican Party’s reactionary id — first for promoting a “divide and conquer” strategy to attack recipients of government support; then for contrasting African Americans and Latinos in North Carolina with the state’s “traditional population” —  I was beginning to have my suspicions. But a recent report on a 2007 statement in which Tillis claims a “subset” of the state’s Democrats ceaselessly call for “de facto reparations” is the clincher.

In this instance and others, what makes Tillis so valuable is the way his previous statements show what it sounds like when an ultra-conservative tries to reach his fellow travelers by using language intended to signal his membership within (and loyalty to) the tribe. Indeed, as was the case during both his “divide and conquer” gaffe and his “traditional population” slip, the Tillis we see attacking “de facto reparations” is on the defensive, trying to prove to his far-right audience that he’s still on their team. And everyone on that team, to state the obvious, just so happens to have white skin.

In fact, once you learn about the specific context of Tillis’s reparations remark, the connection between the U.S. far-right’s hatred for redistribution and its negative views of non-white citizens becomes even clearer. According to the report, Tillis’s statement was an attempt to persuade his most conservative supporters that the legislature’s apology would not pave the way for reparations, which was apparently their concern. “This resolution acknowledges past mistakes and frees us to move on,” Tillis assured these right-wingers, trying to spin the apology as a way to put the debate over racism and slavery’s legacy finally to rest.

Guarding against the possibility that his support for the apology be interpreted as a sign of a more fundamental disagreement with the Republican base, Tillis then endorsed the redistribution-is-reparations argument in general, claiming that a “subset” of Democrats “has never ceased to propose legislation that is de facto reparations.” All this despite the fact that, according to Tillis, “Federal and State [sic] governments have redistributed trillions of dollars of wealth over the years by funding programs that are at least in part driven by [the subset’s] belief that we should provide additional reparations.” And there you have it, according to Tillis: modern liberalism itself is little more than an elaborate excuse for giving money to blacks.

For people inclined to see most of U.S. politics as heavily influenced by the country’s shameful history on race — a group amongst which I count myself — Tillis’s argument, his conflation of redistribution and race, couldn’t have been more revealing. Yet for those who are not conservative but are still sometimes uncomfortable ascribing so much of our politics to the consequences of race, there may be a temptation to assume Tillis’s argument, while undeniably racialized, has more to do with the ways Republicans have gone backwards on race during the Obama era. But let’s remember: Tillis’s comments came in 2007, before there was a President Obama, before there was Obamacare and before conservative media began talking about reparations as a matter of course.

So Tillis’s latest flub isn’t about Obama, specifically. Instead, it tells us something essential about the conservative movement today as a whole. Namely, that despite what self-styled centrist pundits and Republican Party leadership may tell you, the debate over the welfare state and redistribution — which has once again come to dominate American politics, and is likely to continue to do so into the foreseeable future — is, especially for hardcore conservatives, a debate about tribal belonging and race. Former Speaker of the House Tip O’Neill famously said that all politics is local; if I could tweak the phrase for the current era, I’d say that when it comes to American politics, all redistribution is racial.

 

By: Elias Isquith, Salon, October 14, 2014

October 15, 2014 Posted by | North Carolina, Racism, Thom Tillis | , , , , , , | Leave a comment

“Judge Slams Voter Suppression Law”: ‘Why Does The State Of North Carolina Not Want People To Vote?’

Voting rights advocates in North Carolina caught a lucky break on Thursday, where it was revealed that the panel of three judges who would consider that state’s comprehensive voter suppression law included one Clinton appointee, Judge Diana Gribbon Motz, and two Obama appointees, Judges James Wynn and Henry Floyd. Last month, a George W. Bush appointee to a federal trial bench in North Carolina allowed the law to go into effect during the 2014 election, the panel of three judges from the United States Court of Appeals for the Fourth Circuit are now considering whether to affirm or reverse that decision. They heard oral arguments in the case on Thursday.

Several provisions are at issue in this case that all make it more difficult for residents of North Carolina to cast a vote. One provision cuts a week of early voting days. Another restricts voter registration drives. A third implements a strict voter ID law, although that provision does not take effect until 2016, so it would be reasonable for the court to decide not to suspend it during the 2014 election.

One provision that received a great deal of attention from the judges during Thursday’s oral arguments in this case is a change to the state law that causes ballots to be tossed out if a voter shows up in the wrong precinct. For the last decade, voters who showed up at the wrong precinct would still have their votes counted in races that were not specific to that precinct, so long as they voted in the correct county. The new law prohibits these ballots from being counted at all. According to the Associated Press, that means thousands of ballots will be thrown out each election year.

Judge Wynn, the only member of the panel who lives in North Carolina, appeared baffled by this provision. Explaining that he lives very close to a precinct that is not his assigned polling place, he asked the state to justify why his vote should be thrown out if he did not travel to a precinct that is further away from his home. At one point, his questions grew quite pointed — “Why does the state of North Carolina not want people to vote?” Wynn asked. At another point, he described a hypothetical grandmother who has always voted at the same place. Why not “let her just vote in that precinct?” he wondered?

An attorney defending the North Carolina law spent a great deal of his time at the podium arguing that it would be too disruptive for a court to suspend parts of North Carolina’s election law this close to the November elections. As a legal matter, this is a strong argument. In a 2006 case called Purcell v. Gonzalez, the justices reinstated a voter ID law that had been halted by a lower court. They explained that “[c]ourt orders affecting elections, especially conflicting orders, can themselves result in voter confusion and consequent incentive to remain away from the polls. As an election draws closer, that risk will increase.”

Yet the judges seemed skeptical of this argument as well, questioning what evidence the state could show that voters would actually be confused. When an attorney argued that restoring lost voting rights could be logistically challenging for the state, Judge Floyd asked whether “an administrative burden [can] trump a constitutional right?”

The argument that judges should heed Purcell‘s warning and be cautious about changing voting law close to an election also did not convince a much more conservative panel considering another voter suppression law in Wisconsin. Earlier this month, a panel of three Republican judges reinstated a voter ID in a single page order issued the same day that they heard oral arguments in the case. At the time, election law expert Rick Hasen criticized this order as a “very bad idea,” in part because of the reasons stated in Purcell. There are already early signs that Hasen was correct.

The Wisconsin case is already making its way to the Supreme Court, and the North Carolina case is likely to wind up there as well, especially if the Fourth Circuit rules against the state’s law. Should both cases come before the justices, that means that they will be confronted with one case where a court changed a state’s election law in a way that Democrats generally approve of, and another case where a court changed the state’s election law in a way that Republicans generally approve of. Both of these changes, moreover, would be made close to an election.

If the conservative Roberts Court really meant what it said in Purcell, then it is likely to allow the North Carolina law to go into effect while suspending the Wisconsin law. Should it allow both laws to take effect, however, that would raise serious concerns about whether the justices are willing to apply the same rule to every case, regardless of whether the rule benefits Democrats or Republicans.

 

By: Ian Millhiser, Think Progress, September 29, 2014

September 30, 2014 Posted by | North Carolina, Voter Suppression, Voting Rights | , , , , , , , | Leave a comment

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