Plaintiffs in voting rights lawsuits split

by Eric Ginsburg @Eric_Ginsburg

The line to enter the federal courthouse in Winston-Salem spilled out of the door last week as people crowded in to support plaintiffs in three lawsuits challenging the constitutionality of North Carolina’s new voting laws, including voter ID.

The orderly throng clogged security enough that the hearing to set a schedule for the suits was delayed, as lawyers for both sides were caught in the jam.

Many people in the large, interracial audience were old enough to remember the significance of the Voting Rights Act and the historical moment it was passed in 1965. As more than a dozen lawyers for the plaintiffs representing the NAACP, League of Women Voters, US Justice Department and a few other organizations introduced themselves, the man of the hour arrived.

“Oh good,” an audience member whispered loudly after turning to see NC NAACP President Rev. William Barber II entering the courtroom.

Barber, who gained national attention as the figurehead of the Moral Monday protest movement at the General Assembly and a leader in the fight against stricter voting laws passed this summer, took his seat in the front row.

Despite the prevalence of groups ready to challenge the state’s revisions to voting laws, a chasm between the plaintiffs’ desires around the timeline of the trial quickly emerged. While NAACP lawyer Daniel Donovan and League of Women Voters lawyer Allison Riggs stressed the importance of acting quickly, a lawyer for the Justice Department espoused similar points as lawyers for the defense, raising tensions in the room and concerns for some about the relationship between the plaintiff groups.

Lawyers for the NAACP and League of Women Voters, who argue that the new laws are discriminatory and hark back to the days of Jim Crow, laid out their arguments for a trial beginning this summer rather than in 2015.

“This case is about the fundamental right to vote,” NAACP lawyer Daniel Donovan said.

In his opening statement, Donovan likened the new law to what he called a “brutal” and “historical” denial of the right to vote and said that the cases must be addressed before the fall 2014 election or voting rights would be “irreparably lost.” Donovan argued that 34 percent of black voters in North Carolina would be adversely affected by the legislation that targets early voting and imposes a voter ID system.

His client understood the need to move swiftly, he said, adding that the NAACP filed its suit the same day Gov. Pat McCrory signed the bill into law. Since then, they’ve done all they could to keep things rolling rapidly, he said.

“We moved the case forward but the clock is ticking,” Donovan said.

Not only do voters need to understand the rules in place before voting, but election boards will need lead time to adjust, too, he said.

Guilford County Elections Director Charlie Collicutt has said that the changes will eliminate same-day registration and reduce early voting from 17 to 10 days while maintaining the same number of total hours beginning in 2014. Collicutt said that about twice as many people voted early as on election day in 2012, the last major election. Election officials will be required to provide information to voters in 2014 about voter ID requirements, but the law won’t take effect until 2016, Collicutt said.

Three lawyers, including a representative for McCrory, represented the defendants, but NC Senior Deputy Attorney General Alexander Peters did most of the talking. Wearing a bow tie and the airs of a friendly Southern gentleman, Peters pushed for a lengthier schedule to go through more than 50 depositions and other complicated elements of the trial.

“We think a year is a reasonable time to expect… in a case of this length,” Peters said. “This is going to be very data intensive.”

The timeline the defendants sought would still put the trial before the 2016 presidential election, when voter ID is scheduled to take effect. Plaintiffs could seek a preliminary injunction prior to the 2014 election cycle, US District Court Judge Joi Elizabeth Peake noted.

Donovan criticized the defense lawyers, saying that their clients were happy to move quickly by changing the state’s voting laws a month after a landmark Supreme Court ruling on the Voting Rights Act this summer but now wanted to slow down and take nine months just for discovery in the cases.

“The state knew there was going to be litigation over this law,” he said. “We can do this, your honor.”

Donovan implied that lawyers for the defendants are dragging their feet on deposing the plaintiffs in the cases and said the defendants would likely make the case take as long as possible. Peters fired back that the plaintiffs only provided a list of people within the last week or so and said their expectations were “not realistic.”

“We take very seriously when the right to vote may be infringed on,” he said, but the state also takes seriously the right of people to elect representatives whose laws will be enacted when passed.

Donovan and Riggs argued that plenty of other cases follow the tight schedule they proposed, citing precedent in Florida, South Carolina and Texas. Riggs said it is imperative the cases move forward as promptly as possible.

“It is not uncommon for voting litigation to move at a rapid pace,” she said.

“The very legitimacy of democracy is at stake.”

Counsel for the defendants and representatives for the US Justice Department said those voting rights cases differed significantly in various ways, backing each other up and trading barbs with Donovan. A lawyer for the federal government said the US “whole-heartedly agrees… about the fundamental rights that are at issue here,” but echoed Peters’ remarks saying there will be “intensive datamatching and analysis” involved that requires a lengthier timeline.

Plaintiffs respectfully disagreed with each other, but the divide between the civil society organizations and the federal government was palpable.

Judge Peake suggested bifurcating the cases, a move plaintiffs uniformly opposed because they said the different factors should be considered in their totality. Noting the agreement between the defendants and the federal government on the timeline, Peake offered a 15-minute recess for the plaintiffs to try and get on the same page, hinting in her remarks that otherwise she leaned towards the later scheduling option.

During the break, NAACP leader Barber passed a waist-high wall separating the audience from the proceeding and approached the three Justice Department lawyers to give them an earful.

“We need this in court now,” he said. “You all should be serving us. As long as it’s out there and not tried, it’s killing us. The ungodly arrogance for you to walk into the South and allow [the defendants] to set the schedule… We should be walking into this courtroom unified.”

Before the hearing resumed, Barber invited supporters of the plaintiffs  to pray together. About 30 people huddled together quietly in the aisle of the courtroom, clasping each other’s hands or resting palms on their neighbor’s shoulder.

“We remember those who told us to wait,” Barber said, referencing a Martin Luther King quote. “Lord, some things you can’t get back again. [There’s been] too much blood… too much hurt, to wait any longer. This is an attempt to rob democracy.”

Before the judge returned, Barber moved to confer with lawyers for the plaintiffs again, but his tone was more subdued and inaudible from the audience benches.

As the proceedings resumed and both sides restated their positions, it became clear there wouldn’t be any significant changes in positioning.

Emphasizing that voters are already confused about the changes, Riggs said they were confident they could adhere to an earlier schedule.

“The voters deserve certainty,” she said. “We’re all professionals.”

The Justice Department showed some willingness to compromise, saying it was still “amenable” to the later option but were open to an earlier trial date within those parameters.

Citing the federal government’s position, Peters restated his case.

“We simply don’t think three plus months of discovery is sufficient,” he said.

Judge Peake quickly adopted the defendants and feds’ preferred option, initially scheduling the trial for October 2015, noting the complexity of the case and the plaintiffs’ split as justification for an extended timeline.

After Donovan stressed the Justice Department’s support for moving the trial earlier within the delayed timeline, Peters said the defendants would be fine with moving the trial 90 days earlier. After some brief back and forth, Peake agreed, pushing the trial three months earlier onto the July 2015 master calendar.

Peake said any preliminary injunction and motions would be placed on the July 2014 calendar, giving defendants until this Friday to complete its initial disclosures. She gave the two sides until Thursday to meet and agree on details about electronic searches and depositions would be capped at 60 per side. Preliminary motions including an injunction request should be filed by May 14, Peake said.

Given the defendants’ willingness to readily agree to the three-month move, the change seemed like a minor victory for the NAACP and League of Women Voters. Barber changed his tune after the hearing concluded, thanking the Justice Department’s counsel and declaring victory despite Peake choosing the later schedule.

“I’m thankful that y’all were willing to back up on that date,” he told the federal lawyers. “We’re going to disagree… but we have to live with this every day. We’re thankful. We’re glad we’re together.”

Lawyers for the Justice Department said they aren’t allowed to comment publicly on the case. After a brief discussion with lawyers for the plaintiffs, it was agreed Barber would be the one to speak about the hearing in front of the courthouse.

Flanked by over a dozen supporters, Barber said in the press conference that they saw the hearing as a “major victory” because the judge stressed the importance of moving as quickly as possible along the prolonged timeline.

Barber said plaintiffs would file a preliminary injunction against the new voting laws in “early 2014” and then move forward with the case.

“This is not just about black and white, it’s about fundamental democracy,” he said. “People are in constitutional limbo. You don’t get a second chance once your voting rights have been taken.” !