by Diane Rufino, October 27, 2022
THE RIGHT TO VOTE
At the time of the founding of our country, many groups, including white men who didn’t own any land, free blacks, and women, could not vote. Did that mean that women couldn’t vote or were denied the right to vote back then? No. In many states and localities, they were allowed to vote; there just weren’t any legal guarantees.
Voting in not mandated. A person is not required to vote. It is optional. It is an INDIVIDUAL right, to be exercised by the individual citizen as he or she chooses. Not only is it a right, it’s actually one of the most critical and important duties that American citizens are tasked with. The most important institution that we have in this country is government – at the federal, state, and local levels. “A government of the People, by the People, and for the People” can only be responsibly and morally staffed when good people do their homework, are engaged and informed, ignore partisan politics and false narratives, and who vote conscientiously.
The right to vote does NOT belong to a political party.
Where is the Right to Vote mentioned? The individual’s right to vote is not explicitly or expressly mentioned in the US Constitution. However, it is implied strongly in the following ways:
(1) In the Declaration of Independence, adopted in July 1776. The Declaration, in paragraph 2, reads:
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security…”
In fact, Thomas Jefferson went on to write “Such has been the patient sufferance of these Colonies” and now is the time to break the political chains that force their allegiance to the government of Great Britain. “The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States.”
The term “deriving their just powers from the consent of the governed” is another way of saying that the People select the representatives who will represent and serve them in government. Select = Elect. Elect = Vote.
(2) Our Founding Fathers established our country as a REPUBLIC, which means a form of government in which a state is ruled by representatives of the citizen body, elected by the People themselves. Sometimes people refer to it as a “Constitutional Republic” or a “Democratic Constitutional Republic” A republic, per se, is defined as “a state in which the supreme power rests in the body of citizens entitled to vote.” Being guided by the principles laid out in the Declaration, we understand that in order to be a “government of the people, by the people, and for the people,” citizens must vote to select representatives that will serve them in government.
(3) There are several Constitutional amendments that address the right to vote, not expressly and outwardly declaring there is a right to vote, but by implying that since there is such a right, it cannot be denied to the particular community members identified (freed slaves and persons of color, women, and citizens of age 18 and over). These amendments include the Reconstruction era amendments (March 4, 1867 – March 1877) – the 13th, 14th, and 15th amendments (abolished slavery, recognized freed slaves as American citizens with equal rights and privileges, and guaranteed blacks the right to vote, respectively). The 19th Amendment declared that women cannot be denied the right to vote and the 26th Amendment lowered the voting age to 18 years old. [See Appendix for the text of each of these amendments)
The passage of these amendments reflects a shift in this country towards making voting a fundamental right of all citizens to not to be denied on the basis of gender, race, color, religion, or age. The United States was on its way to becoming a “more perfect union” when it finally abolished the evil and shameful institution of slavery in 1865 and continued to become more perfect when it recognized equal citizenship and equal rights for every individual, again regardless of gender, race, color, religion, or age.
(4) The US Constitution, in Article I, Section 4 (“The Elections Clause”), recognizes “Elections” for representatives in the House of Representatives and for Senators in the second branch of Congress, and Article IV, Section 4 assures that the federal government will “guarantee to every State a Republican Form of Government and shall protect each of them against Invasion….” Again, “Elections” imply that the representatives identified are to be ELECTED by the People. (a government by the People), which means that citizens, the American People, have the right to vote. And a “republican form of government” is one in which the people govern themselves through elections.
In summation, the right to vote is so fundamental that it doesn’t need to be mentioned expressly in the Constitution. It is automatically assumed by the form of government established – a “democratic and Constitutional Republic.” It is our birthright, as articulated in the Declaration of Independence, and is a founding government principle.
Harry Truman once said: “A vote is the best way of getting the kind of country and the kind of world you want.”
HISTORY of the ENLARGEMENT OF VOTING RIGHTS
The Civil War ended when Robert E. Lee surrendered the last major Confederate army to Ulysses S. Grant, commanding General of the Union forces, at Appomattox Courthouse on April 9, 1865. Almost immediately, and as the first condition of readmitting the Southern States back into the Union, was to require them to adopt and ratify the 13th Amendment, which would abolish slavery. The 13th Amendment was ratified on December 8, 1865.
As we all can probably guess, it was the Emancipation Proclamation, issued by President Abraham Lincoln as an emergency war measure back in 1863, and which failed to free a single slave, which was the likely inspiration for the 13th Amendment. A war to subjugate the South and force them back into the Union had to have a more moral purpose – and that purpose became a fight to free slaves. I like to liken Lincoln’s war to a “save the Union” to a man who beats his wife in order to save their marriage.
With NO Southern States represented in the federal government at the time, the members of Congress adopted a proposal in January 1865, which would become the 13th Amendment. Texas and Florida would not ratify it initially but would do so when forced by the North. And Mississippi eventually ratified it in 1995, after first rejecting it in 1865. Coercion is an absolute defense to “intent” so the question is: Did the Southern States legitimately and legally ratify the 14th Amendment?
The next issue was how to reabsorb the former Confederates back into the Union, something they were quite reluctant to do. After all, they were considered rebels and “insurrectionists” and trouble-makers. Of course, their representatives and Senators would have to be seated in Congress, something the Northern States were also reluctant to allow. The next condition would be for the former Confederate States to adopt the 14th Amendment which would recognize all former slaves and freed slaves as legitimate American citizens and recognize that they have equal rights and privileges. Remember, the infamous Dred Scott decision of 1857 declared that black people were never intended to be part of the American citizenry and therefore could not become citizens.
State legislatures in every former Confederate state, with the exception of Tennessee, at first refused to ratify it. (As such, Tennessee was therefore re-admitted to the Union at that point). This refusal by the former Confederate States led to the passage of the first Reconstruction Act in March 1867. The Reconstruction Act of 1867 outlined the terms for readmission to representation of rebel states. The bill divided the former Confederate states, except for Tennessee, into five military districts. Each military district was over-seen by a former Union general and each district denied former Confederates and Confederate sympathizers (ie, a huge percentage of the adult southern white population) the right to vote and the right and opportunity to participate in government. (They were seen as traitors). At the same time, freed slaves, which were almost entirely registered as Republicans, were greatly enfranchised.
This was one way the North tried to control and subjugate the Southern States by re-making the body politic of the South. As you can imagine, this is initially how and why race relations began to deteriorate.
Going back to the Reconstruction Act, additional conditions included: (i) Each state was required to write a new constitution, which needed to be approved by a majority of voters, including African Americans, in that state; (2) Each state was required to ratify the Fourteenth Amendment (and the Thirteen, if they hadn’t already done so) to the Constitution. After meeting these criteria, the former Confederate states could gain full recognition and representation in Congress. President Andrew Johnson vetoed the Act claiming it was unconstitutional (later confirmed by the federal courts), but on March 2, 1867, Congress overrode the veto.
The 14th Amendment was passed by the Senate on June 8, 1866, and finally, it was ratified two years later, on July 9, 1868. Yet, Reconstruction continued until March 31, 1877, punishing the former Confederate States for daring to “rebel” and leave the union and establishing and reforming the body politic in those States to be more “in line” with the agenda of the North.
Reconstruction was an especially terrible and shameful time in our country’s history. It would be responsible for the segregation of blacks and whites and responsible for our unforgiveable Jim Crow era. We fought the stigmas of Reconstruction and then the stigmas of Jim Crow up until the 1960s, with the Civil Rights movement.
With Reconstruction ending, the Southern States enacted Black Codes and Jim Crow laws, passed at different periods in the Southern States and both of which were intended to establish and enforce racial discrimination and segregation, and especially to curtain and limit the power of Black votes (something the victorious North wanted/needed very badly). This was the unfortunate era of intense and shameful racial discrimination. Jim Crow is the name for the era of racial segregation of the South. [NOTE: “Jim Crow” was a term that originated when a struggling actor, became famous for paining his face (black face) and playing the part of “Jim Crow,” an exaggerated, highly-stereotypical black character. By 1838, the term “Jim Crow” was being used as a general racial epithet for blacks].
What the Jim Crow laws did in the South was to re-establish segregation, a 2-tier society, and slavery…. But in a different way.
The so-called “Jim Crow era” lasted from the 1870’s up until the 1960’s with the Civil Rights protests led by Reverend Martin Luther King Jr. Jim Crow laws, in the American South, re-established segregation and slavery but in a different form. In a way, they established the kind of America that US Supreme Court Justice Roger B. Taney wrote about in his infamous Dred Scott v. Sanford opinion (1857). That case arose when a slave, Dred Scott was taken from Missouri (a slave state) by his “master” to Illinois (a free state, which was in the Louisiana Territory at the time and where slavery was forbidden by the Missouri Compromise of 1820). He then sued claiming that he became a free man once he was relocated to a “free state.” The Supreme Court disagreed. The Court held that “a negro, whose ancestors were imported into the US from Africa and sold as slaves,” whether enslaved or free, could not be an American citizen and therefore did not have standing to sue in federal court. The United States never intended the country to include negroes among its citizenry. Because the Court lacked jurisdiction, Taney ultimately dismissed the case on procedural grounds. Chief Justice Taney further held that the Missouri Compromise of 1820 was unconstitutional and prohibited Congress from freeing slaves within Federal territories. Finally, the Court ruled that slaves were property under the Fifth Amendment, and that any law that would deprive a slave owner of that property was unconstitutional.
Some of the ways and schemes to limit the participation of freed slaves in the electoral process include:
(a) poll taxes – Poll taxes were required of citizens in order to vote. Alternatively, citizens were required to pay all back taxes before being permitted to vote. Every former Confederate state enacted such laws by 1904. Although these taxes of $1-$2 per year may seem small to us today, it was beyond the reach of many poor black and white sharecroppers, who rarely were able to deal in cash.
(b) literacy tests – After the Civil War, many states enacted literacy tests as a voting requirement. The purpose was to exclude persons with minimal literacy, in particular, poor African Americans in the South, from voting. They were usually administered at the discretion of government officials in charge of voter registration.
(c) violence (including property destruction and assassinations) – Violence was a principal means of direct disenfranchisement in the South before Redemption. In 1873, a band of whites murdered over 100 blacks who were assembled to defend Republican officeholders against attack in Colfax, Louisiana. Federal prosecutors indicted 3 of them under the Enforcement Act of 1870, which prohibited individuals from conspiring “to injure, oppress, threaten, or intimidate any citizen with intent to prevent or hinder his free exercise and enjoyment of any right or privilege granted or secured to him by the constitution or laws of the United States.”
(d) fraud – Electoral fraud by ballot box stuffing, throwing out non-Democratic votes, or counting them for the Democrats even when cast for the opposition, was the norm in the Southern states before legal means of disenfranchisement were entrenched
(e) restrictive and arbitrary registration practices – Southern states made registration difficult, by requiring frequent re-registration, long terms of residence in a district, registration at inconvenient times (e.g., planting season), provision of information unavailable to many blacks (e.g. street addresses, when black neighborhoods lacked street names and numbers), and so forth…. employing the same fraudulent schemes used by Democrats today. When blacks managed to qualify for the vote even under these measures, registrars would use their discretion to deny them the vote anyway.
(f) KKK intimidation – The Ku Klux Klan was a militant organization with its goal being to scare and intimidate blacks from voting. Their “playbook” included violence and property damage, burning crosses on personal property and lynching black men from trees.
(g) lynching – White Americans, especially the KKK, used lynching to terrorize and control Black people in the 19th and early 20th centuries.
Jim Crow laws and Black Codes established a segregated society and upheld racial hierarchy in Southern states and southern cities, and that era continues to be a stain on our nation’s history. In fact, the laws and codes were so effective that Hitler’s Nazi Party would use them as a model for their Anti-Semitic Laws (to segregate Jews out of their population),
When did the Jim Crow era end? Some say it continued, at least on the books, even into the early 21st century in some states. For example, it took Georgia until 2005 to erase the last vestiges of the state’s post-Reconstruction era Jim Crow laws. Although the laws hadn’t been enforced for decades, the state Governor signed a set of bills to officially erase those laws, calling segregation “a tragic era in our past.” But most agree that it ended with the US Supreme Court’s ruling in Brown v. Board of Education (1954).
Brown represented a consolidation of cases whereby black parents sued the school boards of Topeka, Kansas, and school boards in Virginia, South Carolina, Delaware, and Washington DC over their system of racially segregated public schools, alleging that such segregation violated the Equal Protection Clause of the Fourteenth Amendment. The case was of limited subject matter jurisdiction – it addressed the segregation policy only in the limited case of public education. The plaintiffs were denied relief in the lower courts based on the “Separate but Equal” doctrine established in the 1896 case of Plessy v. Ferguson. The Supreme Court in that case concluded that “separate but equal” was all that the Equal Protection Clause of the 14th Amendment required. It didn’t, in their opinion, require the actual physical intermingling of the races. [In other words, the Supreme Court upheld state-sponsored racial segregation]. The “separate but equal” doctrine held that the black and white races could be separated, as long as they were treated equally. Applying that doctrine, the lower federal courts held that racially segregated public facilities were legal so long as the facilities for blacks and whites were equal, which they claimed they were. In its majority opinion written by Chief Justice Earl Warren, the Supreme Court in Brown held that ‘Separate but Equal’ educational facilities for racial minorities is inherently unequal, violating the Equal Protection Clause of the Fourteenth Amendment. The Court reasoned that the segregation of public education based on race instilled a sense of inferiority that had a hugely detrimental effect on the education and personal growth of African American children. The Court based its opinion not on legal precedent or any actual hard data, but on a “Doll Study.” Finally, the Court ordered that public schools end segregation “with all due speed.”
The federal courts receive a lot of challenges under the 14th Amendment; in fact, it is the #1 provision of the Constitution under which constitutional challenges are based. What are the most significant provisions of the 14th Amendment? They would be the “Due Process” clause and the “Equal Protection” Clause (noticeably not included in the 5th Amendment), both included in Section 1:
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the US, nor shall any State deprive any person of life, liberty, or property without Due Process of law, nor deny to any person within its jurisdiction the Equal Protection of the laws.”
Fast forward to the Civil Rights era of the 1960’s, with the Reverend Martin Luther King Jr. leading marches and protests to end and dismantle the social vestiges and stigmas of our country’s racist past, but most importantly, to dismantle and prohibit the roadblocks put in place by white-dominated Southern societies to prohibit and discourage blacks from voting and thus, eliminating them from the democratic process. King was the driving force behind such critical watershed events such as the Montgomery Bus Boycott (December 5, 1955 – December 20, 1956), the 1963 March on Washington, and the Selma March (of 1965). His approach, through peaceful and non-violent marches and protests, helped to dismantle such systemic racist policies and helped to bring about such landmark federal legislation such as the Civil Rights Act of 1964 and the Voting Rights Act of 1965.
The Montgomery Bus Boycott, which was sparked by the arrest of Rosa Parks —
Sparked by the arrest of Rosa Parks on December 1, 1955 for refusing to find a seat at the back of the bus (ie, bus segregation law), the Montgomery bus boycott was a 13-month mass protest that ended with the US Supreme Court ruling, in 1956, that segregation on public buses is unconstitutional.
The famous 1963 March on Washington –
On August 28, Reverend King led the famous March on Washington. From the steps of the Lincoln Memorial, King delivered his famous “I Have a Dream” Speech: [Excerpts]
“In a sense we’ve come to our nation’s capital to cash a check. When the architects of our republic wrote the magnificent words of the Constitution and the Declaration of Independence, they were signing a promissory note to which every American was to be an heir. This note was a promise that all men — yes, Black men as well as white men — would be guaranteed the unalienable rights of life, liberty and the pursuit of happiness.
It is obvious today that America has defaulted on this promissory note insofar as her citizens of color are concerned. Instead of honoring this sacred obligation, America has given the Negro people a bad check, a check which has come back marked insufficient funds. We refuse to believe that there are insufficient funds in the great vaults of opportunity of this nation. We refuse to believe that the bank of justice is bankrupt….
This sweltering summer of the Negro’s legitimate discontent will not pass until there is an invigorating autumn of freedom and equality. 1963 is not an end, but a beginning. Let us not seek to satisfy our thirst for freedom by drinking from the cup of bitterness and hatred. Even though we face the difficulties of today and tomorrow, I still have a dream. It is a dream deeply rooted in the American dream. I have a dream that one day this nation will rise up and live out the true meaning of its creed: ‘We hold these truths to be self-evident, that all men are created equal.’
I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character. I have a dream today.”
Two years later, on March 25, 1965, Martin Luther King led thousands of nonviolent demonstrators, black and white, from Selma, Alabama to the steps of the state’s capitol in Montgomery. It was a 5-day, 54-mile march to protest for voting rights for blacks, for which they have been denied. But when they got to Montgomery, the protest turned violent. When the protesters arrived in Montgomery, they were confronted with days of white-on-black violence. Two black clergymen were shot and killed and there was a full day, a Sunday, of white violence against the black protesters (referred to as “bloody Sunday”).
Luckily, the story has a happy ending. A few months later, on August 6, in the presence of King and other civil rights leaders, President Lyndon B. Johnson signed the Voting Rights Act of 1965. Recalling “the outrage of Selma,” President Johnson called the right to vote “the most powerful instrument ever devised by man for breaking down injustice and destroying the terrible walls which imprison men because they are different from other men.”
Many Southern jurisdictions refused to obey and comply with the Brown mandate to integrate their public-school systems. For example, in 1963, racist Alabama Governor George Wallace declared: “Segregation now, segregation tomorrow, segregation forever.” He went on to block the entrance of the University of Alabama to prevent black students from enrolling at the school. On June 11, 1963, President John F. Kennedy called for 100 troops from the Alabama National Guard to assist federal officials in allowing black students to enroll.
A day later, white civil rights leader Medgar Evers was assassinated in Jackson, Mississippi for his work in trying to secure voting rights for blacks.
On April 4, 1968, Martin Luther King Jr. was shot dead by James Earl Ray while standing on a balcony outside his second-floor room at the Lorraine Motel in Memphis, Tennessee. On June 6, civil rights activist and presidential candidate, Robert F. Kennedy, died after being shot in the back of the head by Sirhan Sirhan after a campaign speech in Los Angeles.
There has been a long and steady movement to not only end slavery, but to recognize the equality in blacks. It has not been an easy struggle and it was clearly fraught with lots of violence, but the United States is a far better place for the dedication. It’s sad that certain individuals, groups, racial populations, political activists, and political parties continue to use racism to advance their agenda and to claim victimhood rather than celebrate the advances that have been made and strides we’ve made towards true tolerance and inclusion.
Sadly, it seems that we are going backwards now. Progressive leftists are pushing a racist policy in the public schools all across the country, Critical Race Theory (CRT), which teaches and emphasizes that whites have been the “oppressors” of blacks and in fact, they have designed a social system based on “systemic racism” for their own benefit, allowing them to always be the “entitled” members of society. In short, they are actively trying to keep racism alive. It clearly stirs up a lot of passion and is a useful tool for the left.
Derrick Wilburn, a descendant of slaves, delivered the following comments to the Colorado Springs Board of Education on August 21, 2021 regarding the teaching of CRT at his daughter’s school:
“The problem with the education system is that it isn’t teaching our children the truth. The truth is that we ended slavery. We’ve had two consecutive Black secretaries of state, two consecutive Black attorneys general, Black billionaires, Black mayors, and a black US president. Where this oppression is coming from I’m not sure, but personally, I live inside of my skin and I don’t believe that I walk around in an oppressed country. I can think of nothing more damaging to a society than to tell a baby born today, that she has grievances against another baby born today, simply because of what their ancestors may have done two centuries ago…… Racism in America would by and large be dead today if it were not for certain people and institutions keeping it on life support Sadly one of those institutions is the American education system. Putting CRT in our classrooms is taking our country in the wrong direction….
There’s simply no point in doing that to our children, and putting critical race theory into our classrooms in part does that. Putting critical theory into our classrooms is not combating racism. It’s fanning the flames of what little embers are left. Let racism die the death it deserves.” [Derrick Wilburn is the founder of the Rocky Mountain Black Conservatives and has 3 children in Colorado Springs School District 49. His full remarks can be viewed here: https://www.youtube.com/watch?v=L2fGVbMYp54 ]
WHAT IS THE SOLUTION?
Perhaps we, as American citizens, should demand that an explicit right to vote (an individual right to vote) be enshrined in the US Constitution and in state constitutions, along with an ‘equal protection’ clause to demonstrate our commitment to equality. This might give our courts greater ammunition to fight bogus voter discrimination claims.
SUMMARY, SO FAR:
We talked about the right to vote and where that right comes from. And we talked about the history whereby the right to vote has been enlarged so that every American citizen has that right recognized and protected.
I took you through our history – from slavery, to Reconstruction, to Jim Crow, and finally to the dismantling of segregation laws and into the Civil Rights era. I have been stressing and emphasizing our racist past for one important reason….. because all of the challenges that have been made to our voter identification laws, to our district maps, and to our voter identification constitutional amendment (voted on and approved in 2018) have been based on North Carolina’s racist history or on Republican legislators’ racial intent in passing voter ID laws.
So now let’s look at the right to vote and how it’s protected. First, let’s start with the Voting Rights Act of 1965 – passed, in large part, because of the efforts and activism of Martin Luther King Jr. who sought to make sure that blacks were not disenfranchised at the polls.
A. THE VOTING RIGHTS ACT of 1965
The Voting Rights Act of 1965 is a landmark piece of federal legislation in the United States enacted “to enforce the fifteenth amendment to the Constitution.” It prohibits / outlaws the discriminatory voting practices adopted in many southern states after the Civil War, including literacy tests and poll taxes, as a prerequisite to voting. In short, it outlaws racial discrimination in voting. It was signed into law by President Lyndon B. Johnson during the height of the civil rights movement on August 6, 1965, and Congress later amended the Act five times to expand its protections. Designed to enforce the voting rights guaranteed by the Fourteenth and Fifteenth Amendments to the United States Constitution, the Act sought to secure the right to vote for racial minorities throughout the country, especially in the South. According to the U.S. Department of Justice, the Act is considered to be the most effective piece of federal civil rights legislation ever enacted in the country and it is also “one of the most far-reaching pieces of civil rights legislation in U.S. history.”
I will briefly discuss three of its most important sections – Sections 2, 4, and 5.
Section 2 generally prohibits voting practices or procedures that discriminate on the basis of race, color, or membership in one of the language minority groups.
When Congress enacted the Voting Rights Act of 1965, it determined that racial discrimination in voting had been more prevalent in certain areas of the country. Section 4(a) of the Act provides guidance in order to identify those areas and to provide for more stringent remedies where appropriate. The first of these targeted remedies was a five-year suspension of “a test or device,” such as a literacy test or poll tax as a prerequisite to register to vote. The second was the requirement for review, under Section 5, of any change affecting voting and voting laws made by a covered area either by the United States District Court for the District of Columbia or by the Attorney General. The third was the ability of the Attorney General to certify that specified jurisdictions also required the appointment of federal examiners. The final remedy under the special provisions is the authority of the Attorney General to go head and send federal observers to those jurisdictions that have been certified for federal examiners. So, as you can see, there is a lot of federal oversight over jurisdictions that have historically engaged in racial discrimination in voting and thus are jurisdictions specifically “covered” by the Voting Rights Act.
Section 4(b), in particular, laid out the “pre-clearance” formula for determining which jurisdictions were subjected to this Section 5 scrutiny. It applied the requirement to any jurisdiction that had voting tests and other discriminatory voting schemes in place as of November 1, 1964. In 2006, Congress reauthorized the Act for another 25 years, again without changing the “pre-clearance” or “coverage” formula under Section 4, and Congress also amended Section 5 to prohibit more conduct than the Act previously covered.
While North Carolina is not identified as a “whole state” under Section 4(a), forty of its one hundred (40/100) counties are considered “covered” under that section, including Pitt County and most of its neighboring counties. [See Appendix below for a full list of North Carolina’s “covered” jurisdictions]. In “fully covered” states (“whole state”), the state itself and all political subdivisions of the state are subject to the special provisions. In “partially covered” states, the special provisions applied only to the identified counties. Voting changes adopted by or to be implemented in covered political subdivisions, including changes applicable to the state as a whole, are subject to review under Section 5.
In 1975, the Act’s special provisions were extended for another seven years and were broadened to address voting discrimination against members of “language minority groups,” which were defined as persons who are American Indian, Asian American, Alaskan Natives or of Spanish heritage.” As before, Congress expanded the coverage formula. And in 1982, the coverage formula was extended again, this time for 25 years, but no changes were made to it. In 2006, the coverage formula was again extended for 25 years.
The coverage formula in Section 4(b) was struck down in the 2013 Supreme Court case Shelby v. Holder because, as the justices noted, it was based on 40-year-old data which is outdated and therefore unworkable, and no longer relates to current situations. Also, it places an impermissible federal burden on certain states as well as an impermissible burden on federalism and State’s Rights (the equal sovereignty of the States as they relate to the federal government).
THE TAKE-HOME MESSAGE for the Voting Rights Act:
(i) It prohibits and outlaws discriminatory voting practices and it targets, especially, those states or jurisdictions that have historically engaged in such practices.
(ii) Section 2 prohibits voting practices or procedures that discriminate on the basis of race, color, or membership in one of the language minority groups.
(iii) Section 4(a) provides guidance as to which states and jurisdictions need to be targeted.
(iv) Section 5 requires that all such states and jurisdictions need to apply to the federal government whenever they intend to change or amend their voting laws and practices and must get its approval to do so.
(v) Section 4(b) was a companion provision to Section 4(a). It laid out a specific formula which applied outdated data on disenfranchisement of black voting rights for the government to use when assessing changes to the election laws by the targeted (or “covered”) states and jurisdictions. Luckily, the Supreme Court realized the injustice of relying on grossly-outdated data, ignoring all the advances in race relations, and struck down the section.
(vi) Forty of North Carolina’s one hundred counties are “covered” by the Voting Rights Act, including Pitt County and her surrounding counties.
B. THE COMMISSION ON FEDERAL ELECTION REFORM (aka, “The Carter-Baker Commission”)
The Commission on Federal Election Reform was a private, bipartisan organization founded in 2004 by former US President Jimmy Carter and James A. Baker, III, a top official under presidents Ronald Reagan and George H.W. Bush. They put together a bipartisan commission, including leaders from the major political parties, academic, as well as non-partisan civil groups and its purpose was to study the electoral process in general, examine the inconsistencies of the 2000 and 2004 presidential elections, and to bring to light the flaws and processes that lead to voter and election fraud. The Commission’s ultimate mandate was to identify the flaws in the election process and to make recommendations to maximize both ballot access and ballot integrity.
A major point was the commission’s call for nonpartisan professional and state oversight over elections. The panel noted that both the 2000 and 2004 elections were marred by gross conflicts of interest.
The panel made a variety of other recommendations, including the most significant one – that states need to establish a photo identification mandate to match the voter to the voting roll, while establishing more offices to make it easier for all non-drivers to more easily register and acquire photo IDs. Importantly, the Supreme Court, in 2008, declared that a photo identification (especially one that is provided for free to those who can’t afford one) poses no substantial burden on one’s fundamental right to vote. That case was Crawford v. Marion County, and it will be important for us in North Carolina. (In that case, the Court upheld an Indiana Voter ID which required a form of photo identification when a person shows up in person to vote).
A total of 35 states (or so) have laws requesting or requiring voters to show some form of identification at the polls. The remaining 15 states and D.C. use other methods to verify the identity of voters. Most frequently, other identifying information provided at the polling place, such as a signature, is checked against information on file.
Before the Crawford v. Marion County Board of Elections ruling (2008), there were 25 states that had passed voter ID laws (meaning that some form of identification must be produced before the individual could vote), In the wake of the decision, proponents of voter ID stepped up legislative efforts in several states – 10 of them. . From 2008, when the Crawford ruling was handed down, until 2021, voter ID laws have become more commonplace. As of 2021, thirty-five states have passed laws requiring some form of identification before an individual is allowed to vote. Florida, Georgia and Indiana require photo identification. Louisiana, Michigan, and South Dakota request it, but will accept other forms of identity. North Carolina is the only state in the southeast that doesn’t have any form of voter identification in place for elections.
C. WHY DO WE NEED SOME FORM OF VOTER IDENTIFICATION in NORTH CAROLINA FOR ELECTIONS?
First, the Carter-Baker Commission recommended that all States enact some form of voter identification in order to cast a ballot. It studied the irregularities of previous elections and concluded they were marred by fraud. Furthermore, those states that have implemented voter ID laws also understand that the United States has an unfortunate history of voter fraud and that requiring individuals to authenticate their identity at the polls is a fundamental and necessary component of ensuring the integrity of the election process.
Furthermore, studies have shown that voter identification requirements do NOT burden a person’s fundamental right to vote, nor do they depress voter turn-out, including minority, poor, and elderly voters. On the other hand, those who can vote fraudulently (cast multiple votes, assume the identity of another, etc) will undermine and cancel (nullify) the votes of legitimate voters.
D. THE HISTORY OF OUR VOTER ID INITIATIVE IN NORTH CAROLINA
North Carolina is the ONLY state in the Southeast without some form of voter ID provision in place. That was supposed to change when the Republicans took over the majority in both houses of the state legislature, which occurred with the 2010 election. From 2011 until present, Republicans have held the majority in both the state House and the state Senate, with a trifecta of Republicans from 2013-2016 when Pat McCrory was the Governor. Yet our state continues to be the only state in the Southeast without such a law.
NORTH CAROLINA PARTY CONTROL: 1992-2022
Fourteen years of Democratic trifectas • Four years of Republican trifectas
| Year | 92 | 93 | 94 | 95 | 96 | 97 | 98 | 99 | 00 | 01 | 02 | 03 | 04 | 05 | 06 | 07 | 08 | 09 | 10 | 11 | 12 | 13 | 14 | 15 | 16 | 17 | 18 | 19 | 20 | 21 | 22 |
| Governor | R | D | D | D | D | D | D | D | D | D | D | D | D | D | D | D | D | D | D | D | D | R | R | R | R | D | D | D | D | D | D |
| Senate | D | D | D | D | D | D | D | D | D | D | D | D | D | D | D | D | D | D | D | R | R | R | R | R | R | R | R | R | R | R | R |
| House | D | D | D | R | R | R | R | D | D | D | D | D | D | D | D | D | D | D | D | R | R | R | R | R | R | R | R | R | R | R | R |
THE HISTORY OF VOTER ID LAWS in NORTH CAROLINA
1. THE 2013 NC VOTER ID LAW – House Bill 589 (HB 589)
Acting in accordance with the wishes of voters in the 2010 and 2012 elections, the Republicans in the NC General Assembly, in 2013, enacted the state’s first Voter ID requirement into law. It was the first state voter identification law to pass since the U.S. Supreme Court struck down part of the Voting Rights Act [the “preclearance Formula” provision in Section 4(b)] in the case Shelby v. Holder (2013). Repealing this provision made it easier for states like North Carolina to pass a Voter ID law, which it quickly did.
The day after the Shelby County decision was handed down, the Republican legislative leader announced an intention to pass a new “omnibus” election law bill, which resulted in HB 589 – the so-called NC “Voter ID law.” HB 589 required a photo identification for in-person voting and reduced early voting from 17 days to 10 days. (These two provisions would be the ones challenged by Democrats and the NC NAACP). Proponents of the bill claimed the new law was needed to address voter fraud concerns.
Using poor judgement, Republican lawmakers requested data on the use of early voting practices and IDs by race, as they were drafting the Voter ID bill. It showed African Americans disproportionally lack IDs, especially the most common form of identification: a driver’s license. According to opponents of the bill (most notably, the NC NAACP), the forms of allowable ID that made it into the bill were ones African Americans tended to hold in lower percentages. In addition, data shows that African Americans disproportionally used early voting, especially the first 7 of the 17 days of early voting that existed pre-HB 589. The General Assembly proceeded to cut early voting to 10 days. In other words, the NC NAACP alleged that the bill was drafted with racial motivation and was intended to discriminate against African American voters.
In announcing the Voter ID law, Governor Pat McCrory said: “This new law brings our state in line with a healthy majority of other states throughout the country. This common-sense safeguard is commonplace.” Unfortunately, the excitement and satisfaction would not last long. The North Carolina state and local chapters of the NAACP filed suit to have the law declared unconstitutional.
On the day the bill was signed into law, the North Carolina chapter of the NAACP (NC NAACP) sued the state over the ID requirement (NC NAACP v. McCrory). On April 25, 2016, federal District Court Judge Thomas Schroeder of the Middle District of North Carolina upheld the law. Judge Schroeder found the justifications for the law, such as the desire to protect against voter fraud, to be “not unreasonable” and “plausible.” In other words, they were sufficient to justify the bill. However, on November 11, 2016, the 4th Circuit Court of Appeals overturned this ruling. Judge Diana Motz, writing for the court, stated that the law was “the most restrictive voting law North Carolina has seen since the era of Jim Crow.” The Court found that the North Carolina General Assembly acted with discriminatory intent and that HB 589 violated the 14th and 15th Amendments, which prohibit racial discrimination in the regulation of elections. In other words, Judge Motz struck the law down as being unconstitutional. As a result of the General Assembly’s alleged racial motivation in passing the law, HB 589 was ruled to be in violation of constitutional and statutory prohibitions on intentional discrimination. The 4th Circuit Court of Appeals found that the appropriate remedy was to strike down each of those provisions.
But Republicans, determined to make good on their promised to voters to enact a photographic identification requirement to vote, went back to work – this time, strategizing more intelligently.
2. THE 2018 VOTER ID CONSTITUTIONAL AMENDMENT —
After losing its battle for the 2013 Voter ID law, Republican lawmakers placed a proposed constitutional amendment for a voter identification requirement to vote on the 2018 ballot. By enshrining a voter ID requirement in the state constitution, they hoped it would make it less likely to be overturned in federal court and would help protect it from challenges in state court. By making voter ID a voter-initiative (rather than a legislative one), it would be more likely to survive legal challenges.
In 2018, there were six (6) statewide ballot measures (ballot initiatives) that were certified for voters on the ballot on November 6, 2018 and voters approved four of them, one being the Voter ID amendment.
On the ballot
| Type | Title | Subject | Description | Result |
| LRCA | Right to Hunt and Fish Amendment | Hunting | Creates a constitutional right to hunt and fish | |
| LRCA | Marsy’s Law Amendment | Law Enforcement | Expands the constitutional rights of crime victims | |
| LRCA | Income Tax Cap Amendment | Taxes | Changes cap on income tax from 10 percent to 7 percent | |
| LRCA | Voter ID Amendment | Elections | Requires a photo ID to vote in person | |
| LRCA | Legislative Appointments to Elections Board and Commissions Amendment | Legislature | Makes the legislature responsible for appointments to election board | |
| LRCA | Judicial Selection for Midterm Vacancies Amendment | Judiciary | Creates a process, involving a commission, legislature, and governor to appoint to vacant state judicial seats |
Voters approved the Voter ID amendment by a 56 to 44 percent margin (ie, by 56%). Approximately two-thirds of white voters supported the voter ID amendment while only one-third of non-whites supported it. NC voters indeed approved a Voter ID amendment to the state constitution but there were no details as to how it would be implemented. And so, as will be discussed below, the General Assembly followed up in December by passing Senate Bill 824 with the necessary details.
The NC chapter of the NAACP, along with Clean Air Carolina, filed a lawsuit in Wake County Superior Court the day after the Voter ID law was enacted because, in their opinion, it violated the state’s constitution and the federal Voting Rights Act. They alleged that voting districts had been unconstitutionally racially gerrymandered and therefore, the state legislature was illegally constituted, which means that their official acts were null and void. The specific issue at the center of their lawsuit was whether legislators elected from unconstitutionally racially gerrymandered districts possess authority to initiate the process of changing the North Carolina Constitution.
Justice Phil Berger Jr. wrote for dissenting Republicans: “At issue today is not what our constitution says. The people of North Carolina settled that question when they amended the constitution to include the Voter ID and Tax Cap Amendments. These amendments were placed on the November 2018 ballot by the constitutionally required three-fifths majority in the legislature.”
In February 2019, Wake Superior Court Judge Bryan Collins rejected both constitutional amendments, citing racial motivation. Senate President Phil Berger (R-30) responded to the court’s decision with disgust: “We predicted Democratic activists would launch absurd legal attacks to keep the voters from deciding on their own Constitution, but this one really takes the cake. This absurd argument – which has already been rejected in federal court – is a sad and desperate attempt to stop North Carolina voters from joining 34 other states in requiring identification when casting a ballot.”
Here’s the kicker — Judge Collins’ ruling characterizing the law as having been racially motivated came despite the fact that an African-American senator sponsored bill S.824 and two other African-American senators initially supported it. [Sen. Joel Ford (D) co-sponsored the bill with Sen. Joyce Krawiec (R), and Senators Ben Clarke and Don Davis initially voted in favor of it at various phases of the legislative process, that is, up until the vote to over-ride Governor Cooper’s veto]. Senator Ford, a former senator from Mecklenburg County, said that he didn’t see the bill as being racist. As he explained: “My motivation was purely to protect the vote and to help people who did not have an ID to secure one.” Senator Clark admitted: “The way I saw it, we had a constitutional mandate as determined by the election, to establish a voter ID law. I thought I had an obligation to work across the aisle to support my constituents.” Senator Davis admitted: “For me, the broader case of fraud justified this bill.”
NOTE: S.824 was the bill passed by the NC General Assembly in 2018 to implement the Voter ID amendment. It was known as the “NC 2018 Voter ID law.”
On August 19, 2022, with a straight 4-3 party-line vote, Democrat justices sitting on the state’s Supreme Court agreed that two voter-approved state constitutional amendments could be thrown out. They sent the case back to a trial judge to make that decision. Republican justices dissented. They say Democrat’s willingness to toss out voter-approved amendments means “the court majority nullifies the will of the people and precludes governance by the majority.” In my opinion, the justices committed judicial activism by substituting their version of the legislative body’s intent for the actual intent of the legislators in passing the amendment’s proposal bill. That is a judicial no-no.
In his dissenting opinion, Justice Phil Berger Jr. wrote:
“At issue today is not what our constitution says. The people of North Carolina settled that question when they amended the constitution to include the Voter ID and Tax Cap Amendments…. These amendments were placed on the November 2018 ballot by the constitutionally required three-fifths majority in the legislature. On November 6, 2018, the citizens of North Carolina voted overwhelmingly to approve the North Carolina Voter ID Amendment and the North Carolina Income Tax Cap Amendment. More than 2,000,000 people, or 55.49% of voters, voted in favor of Voter ID, while the Tax Cap Amendment was approved by more than 57% of North Carolina’s voters.”
Instead, the majority engages in an inquiry that is judicially forbidden — what should our constitution say? This question is designated solely to the people and the legislature… The majority concedes that constitutional procedures were followed, yet they invalidate more than 4.1 million votes and disenfranchise more than 55% of North Carolina’s electorate. Unwilling to accept the results of a procedurally sound election that enshrined the Voter ID and Tax Cap Amendments in our state constitution, the majority nullifies the will of the people and precludes governance by the majority. In so doing, my colleagues extend the reach of their judicial power beyond mere judicial review of actions under our constitution; instead, they have determined that certain provisions of the constitution itself are objectionable.” (They have violated the time-honored principle of democracy).
Notice how this is the typical mindset of activist judges who see constitutions as “living, breathing documents” which need to evolve with the changing times (the activist judges being the ones to “evolve” them).
It should be noted that the attorney who represented the NC NAACAP in 2018-19, Anita Earls, a notorious progressive idealogue, was on the NC Supreme Court bench for this case. The four justices who discredited the voter-approved amendments – Anita Earls, Sam Ervin, Michael Morgan, and Robin Hudson – are guilty of voter suppression.
Resources: NC NAACP v. Moore, Judicial Timeline – https://www.southernenvironment.org/wp-content/uploads/2021/11/2021-11-4-Timeline-NCNAACP-v-Moore.pdf
“N.C. Supreme Court rules against ‘gerrymandered’ legislature, punts on fate of voter ID and tax cap amendments,” The Carolina Journal, September 27, 2022. Referenced at: https://www.carolinajournal.com/n-c-supreme-court-rules-against-gerrymandered-legislature-punts-on-fate-of-voter-id-and-tax-cap-amendments/
3. THE 2018 NC VOTER ID LAW –
The constitutional Voter ID amendment was to provide the legal foundation for a state voter ID law, and that was the clear intention of our Republican state legislators. Voters went on to approve that amendment by 56%. While the amendment was finally adopted to the state constitution, there were no details as to how it would be implemented. And so, the General Assembly followed up in December by passing Senate Bill 824 with the necessary details. Democratic Gov. Roy Cooper, of course, vetoed the bill, but Republicans were able to override the veto before their supermajority ended due to the “blue wave” midterm election held the previous month. According to an analysis of every state’s voter ID law by the National Conference of State Legislatures, North Carolina’s law was considered to be “non-strict.” [There are typically 4 categories of voter ID laws – “strict photo ID,” strict non-photo ID,” and “non-strict, photo ID requested,” and “ID requested but photo not required.”]
On the same day that the General Assembly enacted S.824, the NC chapter of the NAACP, along with Clean Air Carolina (“plaintiffs”), filed a lawsuit in Wake County Superior Court (Holmes v. Moore) alleging that because the law disproportionately harms black and Hispanic voters, it violates both the state’s constitution (Article I, Section 19 – “equal protection under the laws”) and Section 2 of the federal Voting Rights Act (which bars racial discrimination in voting). They demanded injunctive relief (meaning, they demanded that the law, S.824, the “NC Voter ID law,” be prevented from being enforced.
They put forth six reasons: (1) that the General Assembly violated Article I, Section 19 by intentionally enacting a racially discriminatory law (Claim I); (2) that the Voter ID law significantly burdens a “fundamental right to vote” (Claim II); (3) that the law unconstitutionally creates different classes of voters (Claim III); (4) that it infringes on their Article I, Section 10 right to participate in free elections (Claim IV); (6) that it violates their assembly, petition, and speech rights under Article I, Sections 12 and 14 (Claim VI). Claim V makes no sense.
The Wake County Superior Court denied the plaintiffs’ request for injunctive relief. The plaintiffs appealed the decision. On September 17, 2021, following a trial earlier that year (in April), a 3-judge panel of the Court of Appeals for North Carolina issued its decision… The panel concluded that the voter photo ID law violated the North Carolina Constitution. Judge Hampson wrote: “We reverse the trial court’s decision to deny Plaintiffs’ Preliminary Injunction Motion and remand to the trial court with instructions to grant Plaintiff’s Motion and preliminarily enjoin Defendants from implementing or enforcing the voter-ID provisions of S.B. 824 – including, specifically, Parts I and IV of 2018 N.C. Sess. Law 144 – until this case is decided on
the merits.”
In the meantime, the US Supreme Court, granted NC Republican Legislative leaders the right to intervene in court to defend the NC Voter ID law. On June 23 (this year), the Supreme Court ruled that our two leading Republican legislators in North Carolina (House Majority Leader Tim Moore and Senate Pro Tempore Phil Berger) can join a lawsuit to defend the constitutionality of the state’s voter-identification law. Two lower courts had rejected the legislators’ request, reasoning that the state’s Democratic attorney general, Josh Stein, and the board of elections were already defending the law, but the justices reversed those rulings. In an 8-1 opinion by Justice Neil Gorsuch, the Supreme Court ruled that the Republican legislators have a right to intervene in the lawsuit. In his majority opinion, he wrote: “The 4th Circuit was wrong to presume that the state’s attorney general, Josh Stein, had adequately represented the state’s interests…. Supreme Court cases have made clear that would-be intervenors generally have to meet only a relatively low bar. But such a presumption is inappropriate when a duly authorized state agent seeks to intervene to defend a state law. Normally, a State’s chosen representatives should be greeted in federal court with respect, not adverse presumptions.” Furthermore, Gorsuch wrote: “The legislative leaders bring a distinct state interest to the case.”
The bottom line is that the status of both our Voter ID constitutional amendment and our Voter ID law are still up in the air. The future will likely see both issues back in court or back on the ballot, especially now that the Supreme Court has given the green light for both Senate leader Phil Berger and House Majority Leader Tim Moore to intervene in litigation to promote and defend the law.
“IF WE DO NOT CHANGE DIRECTION, WE JUST MIGHT END UP WHERE WE ARE HEADING.”
References:
Patrick Cash, East Carolina University, “The Process of Desegregation in Greenville/Pitt County – file:///C:/Users/Diane%20Rufino%20Surface/Downloads/The%20Process%20of%20School%20Desegregation%20in%20Greenville_9_17.pdf
Sharon McCloskey, “Fifty Years Later, Segregation Battles Are Still in the Courts,” NC Policy Watch, July 18, 2013. Referenced at: https://ncpolicywatch.com/2013/07/18/fifty-years-later-segregation-battles-still-in-the-courts/
Section 4 of the Voting Rights Act of 1965 – https://www.justice.gov/crt/section-4-voting-rights-act#:~:text=Section%204(e)%20provides%20that,a%20language%20other%20than%20English.
Brown v. Board of Education of Topeka I, 37 U.S. 483(1954) – https://www.oyez.org/cases/1940-1955/347us483
Brown v. Board of Education of Topeka II, 37 U.S. 483 (1955) – https://www.oyez.org/cases/1940-1955/349us294
Everett v. Pitt County Board of Education (1971) – https://law.justia.com/cases/federal/district-courts/north-carolina/ncedce/6:1969cv00702/92986/93/
Sharon McCloskey, “In a Split Decision, Fourth Circuit Releases Pitt County Schools from Desegregation Orders,” NC Policy Watch, June 4, 2015. Referenced at: https://ncpolicywatch.com/2015/06/04/in-a-split-decision-fourth-circuit-releases-pitt-county-schools-from-desegregation-orders/
Matthew Lynch, “What the End of Desegregation Really Means in Pitt County,” The Advocate, June 10, 2015. Referenced at: https://www.theedadvocate.org/fourth-circuit-ends-desegregation-in-pitt-county-nc-signaling-a-more-troubling-trend/
NC NAACP v. Moore, Judicial Timeline – https://www.southernenvironment.org/wp-content/uploads/2021/11/2021-11-4-Timeline-NCNAACP-v-Moore.pdf
Jonathan Drew and Gary R. Robertson, “Court Opens Dorr to Voiding North Carolina Voter ID Amendment,” AP News, August 19, 2022. Referenced at: https://apnews.com/article/north-carolina-constitutions-constitutional-amendments-supreme-court-government-and-politics-b7f91cdc8dd7ee1ed80cc50e0fe91382
Lynn Bonner, “One Thing is Certain After the State’s Supreme Court Ruling on Constitutional Amendments – More Court Hearings,” NC Policy Watch, August 25, 2022. Referenced at: https://ncpolicywatch.com/2022/08/25/one-thing-is-certain-after-the-state-supreme-court-ruling-on-constitutional-amendments-more-court-hearings/print/
“N.C. Supreme Court Rules Against ‘Gerrymandered’ Legislature, Punts on Fate of Voter ID and Tax Cap amendments,” The Carolina Journal, September 27, 2022. Referenced at: https://www.carolinajournal.com/n-c-supreme-court-rules-against-gerrymandered-legislature-punts-on-fate-of-voter-id-and-tax-cap-amendments/
“North Carolina State Court Strikes Down Voter ID Law,” Democracy Docket, September 17, 2021. Referenced at: https://www.democracydocket.com/news-alerts/north-carolina-state-court-strikes-down-voter-id-law/
Court Opinion, Holmes v. Moore, Wake County Superior Court (September 17, 2021) – https://www.democracydocket.com/wp-content/uploads/2021/09/2021.09.17-Holmes-v.-Moore-Final-Judgment-18-CVS-15292.pdf
Court Opinion, Holmes v. Moore, Appellate Court of North Carolina (2021) – https://appellate.nccourts.org/opinions/?c=2&pdf=38774
NC Supreme Court Opinion, NC NAACP v. Moore, August 19, 2022 – https://appellate.nccourts.org/opinions/?c=1&pdf=41699
Senate Bill S.824 – https://www.ncleg.net/Sessions/2017/Bills/Senate/HTML/S824v7.html
Legislative history of S.824 – https://www.ncleg.gov/BillLookUp/2017/S824
Amy Cole, “North Carolina Republican Lawmakers Win the Right to Intervene in Court and Defend State’s Voter ID Law,” ScotusBlog, Jun3 23, 2022. Referenced at: https://www.scotusblog.com/2022/06/north-carolina-republican-lawmakers-win-right-to-intervene-in-court-and-defend-states-voter-id-law/
Will Doran and Danielle Battaglia, “Fact Check: Here’s What You Need to Know About NC Voter ID and Voter Fraud,” News & Observer, January 18, 2020. Referenced at: https://www.newsobserver.com/news/politics-government/article238913033.html
“Party Control of North Carolina State Government,” Ballotpedia – https://ballotpedia.org/Party_control_of_North_Carolina_state_government
“Voter ID Laws,” NCSL (National Conference of State Legislatures) – https://www.ncsl.org/research/elections-and-campaigns/voter-id.aspx
Text of Martin Luther King Jr’s “I Have a Dream Speech (August 28, 1963) – https://www.npr.org/2010/01/18/122701268/i-have-a-dream-speech-in-its-entirety#:~:text=sisters%20and%20brothers.-,I%20have%20a%20dream%20today.,flesh%20shall%20see%20it%20together.
“Techniques of Racial Disenfranchisement,” University of Michigan. Referenced at: http://websites.umich.edu/~lawrace/disenfranchise1.htm
Martin Luther King Jr. “Letters From a Birmingham Jail,” The Atlantic, February 18, 2018. Referenced at: https://www.theatlantic.com/magazine/archive/2018/02/letter-from-a-birmingham-jail/552461/
APPENDIX
A. TRANSCRIPT OF MARTIN LUTHER KING’S “I HAVE A DREAM SPEECH” (August 28, 1963)
Five score years ago, a great American, in whose symbolic shadow we stand today, signed the Emancipation Proclamation. This momentous decree came as a great beacon light of hope to millions of Negro slaves who had been seared in the flames of withering injustice. It came as a joyous daybreak to end the long night of their captivity.
But 100 years later, the Negro still is not free. One hundred years later, the life of the Negro is still sadly crippled by the manacles of segregation and the chains of discrimination. One hundred years later, the Negro lives on a lonely island of poverty in the midst of a vast ocean of material prosperity. One hundred years later the Negro is still languished in the corners of American society and finds himself in exile in his own land. And so we’ve come here today to dramatize a shameful condition. In a sense we’ve come to our nation’s capital to cash a check.
When the architects of our republic wrote the magnificent words of the Constitution and the Declaration of Independence, they were signing a promissory note to which every American was to fall heir. This note was a promise that all men — yes, Black men as well as white men — would be guaranteed the unalienable rights of life, liberty and the pursuit of happiness.
It is obvious today that America has defaulted on this promissory note insofar as her citizens of color are concerned. Instead of honoring this sacred obligation, America has given the Negro people a bad check, a check which has come back marked insufficient funds.
But we refuse to believe that the bank of justice is bankrupt.
We refuse to believe that there are insufficient funds in the great vaults of opportunity of this nation. And so we’ve come to cash this check, a check that will give us upon demand the riches of freedom and the security of justice.
We have also come to his hallowed spot to remind America of the fierce urgency of now. This is no time to engage in the luxury of cooling off or to take the tranquilizing drug of gradualism.
Now is the time to make real the promises of democracy. Now is the time to rise from the dark and desolate valley of segregation to the sunlit path of racial justice. Now is the time to lift our nation from the quick sands of racial injustice to the solid rock of brotherhood. Now is the time to make justice a reality for all of God’s children.
It would be fatal for the nation to overlook the urgency of the moment. This sweltering summer of the Negro’s legitimate discontent will not pass until there is an invigorating autumn of freedom and equality. 1963 is not an end, but a beginning. Those who hope that the Negro needed to blow off steam and will now be content will have a rude awakening if the nation returns to business as usual.
There will be neither rest nor tranquility in America until the Negro is granted his citizenship rights. The whirlwinds of revolt will continue to shake the foundations of our nation until the bright day of justice emerges.
But there is something that I must say to my people who stand on the warm threshold which leads into the palace of justice. In the process of gaining our rightful place, we must not be guilty of wrongful deeds. Let us not seek to satisfy our thirst for freedom by drinking from the cup of bitterness and hatred.
We must forever conduct our struggle on the high plane of dignity and discipline. We must not allow our creative protest to degenerate into physical violence. Again and again, we must rise to the majestic heights of meeting physical force with soul force. The marvelous new militancy which has engulfed the Negro community must not lead us to a distrust of all white people, for many of our white brothers, as evidenced by their presence here today, have come to realize that their destiny is tied up with our destiny.
And they have come to realize that their freedom is inextricably bound to our freedom. We cannot walk alone. And as we walk, we must make the pledge that we shall always march ahead. We cannot turn back.
There are those who are asking the devotees of civil rights, when will you be satisfied? We can never be satisfied as long as the Negro is the victim of the unspeakable horrors of police brutality. We can never be satisfied as long as our bodies, heavy with the fatigue of travel, cannot gain lodging in the motels of the highways and the hotels of the cities.
We cannot be satisfied as long as the Negro’s basic mobility is from a smaller ghetto to a larger one. We can never be satisfied as long as our children are stripped of their selfhood and robbed of their dignity by signs stating: for whites only.
We cannot be satisfied as long as a Negro in Mississippi cannot vote and a Negro in New York believes he has nothing for which to vote.
No, no, we are not satisfied, and we will not be satisfied until justice rolls down like waters, and righteousness like a mighty stream.
I am not unmindful that some of you have come here out of great trials and tribulations. Some of you have come fresh from narrow jail cells. Some of you have come from areas where your quest for freedom left you battered by the storms of persecution and staggered by the winds of police brutality. You have been the veterans of creative suffering. Continue to work with the faith that unearned suffering is redemptive. Go back to Mississippi, go back to Alabama, go back to South Carolina, go back to Georgia, go back to Louisiana, go back to the slums and ghettos of our Northern cities, knowing that somehow this situation can and will be changed.
Let us not wallow in the valley of despair, I say to you today, my friends.
So even though we face the difficulties of today and tomorrow, I still have a dream. It is a dream deeply rooted in the American dream. I have a dream that one day this nation will rise up and live out the true meaning of its creed: We hold these truths to be self-evident, that all men are created equal.
I have a dream that one day on the red hills of Georgia, the sons of former slaves and the sons of former slave owners will be able to sit down together at the table of brotherhood.
I have a dream that one day even the state of Mississippi, a state sweltering with the heat of injustice, sweltering with the heat of oppression will be transformed into an oasis of freedom and justice.
I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character. I have a dream today.
I have a dream that one day down in Alabama with its vicious racists, with its governor having his lips dripping with the words of interposition and nullification, one day right down in Alabama little Black boys and Black girls will be able to join hands with little white boys and white girls as sisters and brothers. I have a dream today.
I have a dream that one day every valley shall be exalted, every hill and mountain shall be made low, the rough places will be made plain, and the crooked places will be made straight, and the glory of the Lord shall be revealed, and all flesh shall see it together.
This is our hope. This is the faith that I go back to the South with. With this faith, we will be able to hew out of the mountain of despair a stone of hope. With this faith we will be able to transform the jangling discords of our nation into a beautiful symphony of brotherhood. With this faith we will be able to work together, to pray together, to struggle together, to go to jail together, to stand up for freedom together, knowing that we will be free one day.
This will be the day when all of God’s children will be able to sing with new meaning: My country, ’tis of thee, sweet land of liberty, of thee I sing. Land where my fathers died, land of the pilgrims’ pride, from every mountainside, let freedom ring.
And if America is to be a great nation, this must become true. And so let freedom ring from the prodigious hilltops of New Hampshire. Let freedom ring from the mighty mountains of New York. Let freedom ring from the heightening Alleghenies of Pennsylvania. Let freedom ring from the snowcapped Rockies of Colorado. Let freedom ring from the curvaceous slopes of California. But not only that, let freedom ring from Stone Mountain of Georgia. Let freedom ring from Lookout Mountain of Tennessee. Let freedom ring from every hill and molehill of Mississippi. From every mountainside, let freedom ring.
And when this happens, and when we allow freedom ring, when we let it ring from every village and every hamlet, from every state and every city, we will be able to speed up that day when all of God’s children, Black men and white men, Jews and Gentiles, Protestants and Catholics, will be able to join hands and sing in the words of the old Negro spiritual: Free at last. Free at last. Thank God almighty, we are free at last.
B. CONSTITUTIONAL PROVISIONS RELATED to ELECTIONS
ARTICLE I (LEGISLATIVE POWER):
Article I, Section 4: (“Elections Clause”)
The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of choosing Senators.
The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day.
ARTICLE IV
Article IV, Section 4: (“Republican Form of Government”):
The United States shall guarantee to every State in this Union a Republican Form of Government and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.
C. RECONSTRUCTION ERA CONSTITUTIONAL AMENDMENTS and OTHERS THAT RELATE TO VOTING RIGHTS –
The Reconstruction Era constitutional amendments include the 13th, 14th, and 15th amendments, which, taken together, abolish slavery, recognize freed slaves and other persons of color as American citizens and recognize that they have the same, equal rights as every other American citizen, including the right to vote.
13th Amendment – Section 1: “Neither slavery nor involuntary servitude, except as punishment for crime whereof the party shall have been duly convicted, shall exist within the United States or any place subject to its jurisdiction.
Section 2: Congress shall have power to enforce this article by appropriate legislation.” (December 8, 1965)
14th Amendment – Section 1 (Due Process): “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Section 2 (Apportionment of Representation): “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.” (July 9, 1868)
15th Amendment – Section 1: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
Section 2: “The Congress shall have power to enforce this article by appropriate legislation. (February 3, 1870)
19th Amendment – “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.
Congress shall have power to enforce this article by appropriate legislation.” (June 4, 1919)
26th Amendment – Section 1: “The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.
Section 2: The Congress shall have power to enforce this article by appropriate legislation.” (July 1, 1971)
D. THE SUPREME COURT UPHOLDS AN INDIANA VOTER ID LAW in the Case CRAWFORD v. MARION COUNTY ELECTION BOARD (2008)
FACTS: In 2005, the Indiana legislature passed a law that requires that a voter present ID at the precinct on election day, with absentee voters and residents of state-licensed nursing homes exempted. The requirement does not apply to absentee ballots submitted by mail, and the statute contains an exception for persons living and voting in a state-licensed facility such as a nursing home. A voter who is indigent or has a religious objection to being photographed may cast a provisional ballot that will be counted only if she executes an appropriate affidavit before the circuit court clerk within 10 days following the election. A voter who has photo identification but is unable to present that identification on election day may file a provisional ballot that will be counted if she brings her photo identification to the circuit county clerk’s office within 10 days. No photo identification is required in order to register to vote, and the State offers free photo identification to qualified voters able to establish their residence and identity.
State Representative William Crawford, the Democratic Party of Indiana and other plaintiffs argued that the law violated the right to vote as protected by the First Amendment and Fourteenth Amendment’s equal protection clause as well as Article 2 of the Indiana constitution. They said that the law substantially burdens the “fundamental” right to vote, discriminates between and among different classes of voters, and disproportionately affects disadvantaged and minority voters.
Indiana’s Attorney General defended the law saying it reflected a legitimate legislative concern for in-person voting fraud, it reflected the findings of the Carter-Baker Commission, and was a reasonable exercise of the state’s constitutional authority to regulate the time, place and manner of elections under Article 1, Sec. 4 of the US Constitution. The state also asserted that plaintiffs lacked standing to challenge the statute because they could produce no eligible voter that the law had kept from actually voting.
ISSUE POSED TO THE COURT: The issue before the Court was whether Indiana’s law requiring voters to present a government-issued photo identification before casting a ballot, with certain exemptions, violated the U.S. Constitution.
OPINION: (of the Roberts Court) The established rule, established by the Supreme Court, is that a state election law that unreasonably discriminates on the basis of a particular class of individuals is unconstitutional, under the 14th Amendment. However, a state law’s burden on a political party, an individual voter, or a discrete class of voters must be justified by compelling, relevant, and legitimate state interests.
Because Indiana’s cards are free, the inconvenience of going to the Bureau of Motor Vehicles, gathering required documents, and posing for a photograph does not qualify as a substantial burden on most voters’ right to vote, or represent a significant increase over the usual burdens of voting. The severity of the somewhat heavier burden that may be placed on a limited number of persons – ie, elderly persons born out-of-state, who may have difficulty obtaining a birth certificate—is mitigated by the fact that eligible voters without photo identification may cast provisional ballots that will be counted if they execute the required affidavit at the circuit court clerk’s office. Even assuming that the burden may not be justified as to a few voters, that
conclusion is by no means sufficient to establish petitioners’ right to the relief they seek. Unfortunately, the evidence presented at trial (the district court) does not provide any concrete evidence of the burden imposed on voters who currently lack photo identification. In fact, there was no testimony presented by any voter who was overly burdened by the photo ID requirement.
In summing up, the Court concluded that on the basis of the record in this case, it could not conclude that the statute imposes “excessively burdensome requirements” on any class of voters. At most, it “imposes only a limited burden on voters’ rights.” The opinion, it should be noted, was written by Justice Stephen Breyer, probably the most liberal member of the Court.
As to the remedy that the Democrat organizations were seeking – an invalidation of the law – the Court noted that it would be wrong to do so. When evaluating a neutral, nondiscriminatory regulation of voting procedure, as the Court did in this case, it must “keep in mind that ‘a ruling of unconstitutionality frustrates the intent of the elected representatives of the people.’ Indiana’s state interests identified as justifications for the law are both neutral and sufficiently strong to require us to uphold it and to reject the petitioner’s remedy. The application of the statute to the vast majority of Indiana voters is amply justified by the valid interest in protecting “the integrity and reliability of the electoral process.”
Justice Scalia, joined by Justices Thomas and Alito, joined the majority and defended the delegation of election administration powers to the states under Article 1, Section 4: “It is for state legislatures to weigh the costs and benefits of possible changes to their election codes except when it imposes a severe and unjustified overall burden upon the right to vote or is intended to disadvantage a particular class.”
E. NORTH CAROLINA COUNTIES “COVERED” UNDER SECTION 4(a) of the VOTING RIGHTS ACT of 1965
40 of North Carolina’s 100 counties are “covered” under Section 4(a) of the federal Voting Rights Act of 1965 for their past history of racial disenfranchisement of black voting rights:
Anson County Hoke County
Beaufort County Jackson County
Bertie County Lee County
Bladen County Lenoir County
Camden County Martin County
Caswell County Nash County
Chowan County Northampton County
Cleveland County Onslow County
Craven County Pasquotank County
Cumberland County Perquimans County
Edgecombe County Person County
Franklin County Pitt County
Gaston County Robeson County
Gates County Rockingham County
Granville County Scotland County
Greene County Union County
Guilford County Vance County
Halifax County Washington County
Harnett County Wayne County
Hertford County Wilson County
F. THE REQUIREMENTS FOR AMENDING THE NC STATE CONSTITUTION
According to Article II of the North Carolina state Constitution: “Amendments to Constitution of North Carolina. Every bill proposing a new or revised Constitution or an amendment or amendments to this Constitution or calling a convention of the people of this State, and containing no other matter, shall be submitted to the qualified voters of this State after it shall have been read three times in each house and signed by the presiding officers of both houses.” Proposed constitutional amendments need three-fifths votes in both the House and Senate in order to be placed on the ballot for voters. Republican supermajorities in 2018 helped get the most controversial constitutional changes to voters. Republicans that year had a 75-45 advantage in the House and a 35-15 advantage in the Senate. The voter ID amendment passed the House by two votes over the minimum three-fifths and passed the Senate with three votes over the minimum.
G. HISTORY OF RACIAL DISCRIMINATION & SEGREGATION IN NORTH CAROLINA & SPECIFICALLY, GREENVILLE (PITT COUNTY)
North Carolina had a history of racial desegregation. The Supreme Court decided the landmark education case – Brown v. Board of Education (I) and (II) in 1954 and then in 1955. The first case identified the problem, which was legal, or de facto, racial segregation in violation of the Equal Protection Clause of the 14thAmendment.
This case was the consolidation of cases arising in Kansas, South Carolina, Virginia, Delaware, and Washington D.C. relating to the segregation of public schools on the basis of race. In each of the cases, African-American students had been denied admittance to certain public schools based on laws allowing public education to be segregated by race. They argued that such segregation violated the Equal Protection Clause of the Fourteenth Amendment. The plaintiffs were denied relief in the lower courts based on Plessy v. Ferguson, which held that racially segregated public facilities were legal so long as the facilities for blacks and whites were equal. (This was known as the “separate but equal” doctrine).
Chief Justice Earl Warren delivered the opinion of the unanimous Court. The Supreme Court held that “separate but equal” facilities are inherently unequal and violate the protections of the Equal Protection Clause of the Fourteenth Amendment, but the case specifically addressed the segregation in public education systems. The Court reasoned that the segregation of public education based on race instilled a sense of inferiority that had a hugely detrimental effect on the education and personal growth of African American children. Warren based much of his opinion on information from social science studies rather than court precedent (He based his assessment on a “doll study”).
After its decision in Brown v. Board of Education of Topeka (Brown I), which declared racial discrimination in public education unconstitutional, the Court convened to issue the directives which would help to implement its newly announced constitutional principle. The cases stemmed from many different regions of the United States with distinctive conditions and problems. The Court ordered that the Brown I decision shall be implemented “with all deliberate speed” and local school authorities were tasked with such implementation.
So, in 1955, with Brown I and Brown II, schools were to be desegregated. From 1957-1958, there was what was called “token integregation.” A total of 11 black students state-wide were enrolled in previously all-white schools – 4 students in Charlotte, 6 in Greensboro, and only 1 in Winston-Salem. That was it.
Pitt County, located in the eastern part of the state, is a microcosm of a multiracial and class-stratified population growing in North Carolina. In 2013, 59% of its approximately 170,000 residents were white, 34% black, and 5%, Latino. Nearly 24% were living in poverty – higher than the state’s 15% average. That includes the more than one in four children, and some 64% of those enrolled in public schools qualify for free or reduced meals. Unemployment in Pitt County hovers at around 10%. In its 35 public schools, African-American students made up the majority, according to district records. In 2012-13, close to 48% of its students were black, 38% white, and 10% Latino.
A report that came out in November 1960 confirmed that North Carolina was failing when it came to integrating African-American students in previously all white schools. By that time, only 75 African-Americans students were enrolled in these previously all-white schools. Absolutely dismal. Furthermore, the report also noted how the state’s most populated school districts, Raleigh and Charlotte, were lacking significant numbers of integrated students. Raleigh had only 1 case while Charlotte showed only 2.
In 1961, The NAACP filed several lawsuits against several North Carolina school districts that they believed had failed at desegregating their facilities at a reasonable pace. In one particular case, Wheeler v. The Durham City Board of Education, the federal district court stated that students and their families must follow the dictates of Brown and the procedures set forth by state legislation, known as the Pupil Assignment Act. It concluded that the district had practiced blatant racial discrimination due to its low numbers of approved African-American student transfers. And so, the court ordered the Durham School Board to abide by Brown and state procedures. After the Durham City School Board failed to follow through on the court order, the case was appealed to the 4th Circuit Court of Appeals, which overturned the lower court’s decision. Instead, the School Board was ordered to submit a plan that would end racial segregation and discrimination in the district. A proposed time limit was given. As it turned out, such “school district integration plans” would be ordered by the federal courts. Pitt County was one such school district.
By 1963, of North Carolina’s estimated 346,746 African-American students, 1,865 were enrolled in a previously all white school (which amounts to 0.538%). Of the 171 school districts in the state, 40 were integrated (but only 38 were integrated voluntarily; 2 were court-ordered),
By 1964, of North Carolina’s estimated 349,282 African-American students, only 4,949 were enrolled in a previously all-white school (1.42%). Of the 171 school districts in North Carolina, 84 were integrated.
Also in 1964, a petition dated November 16, 1964 called for the reassignment of the 272 African-American students enrolled in Pitt County Schools. The petition claimed that Pitt County knowingly operated a racially-biased (desegregated) system both before and after the 1954 Brown decision. A civil lawsuit was filed in federal court in December 1964 by Moses Teel, calling for the complete racial desegregation of the Pitt County school system. He wanted his children to be transferred to an all-white school. The federal court found that the district was operating racially-segregated, dual and unconstitutional school systems, and required it to submit plans which would achieve balanced enrollment similar to the school age population in the district and “eradicate the vestiges of the dual school system and eliminate the effects of segregation.” Unfortunately, when Mr. Teel’s application to an all-white school was denied, his children were placed in an all-black school that was further from their home.
In 1965, as a result of the lawsuit, Pitt County adopted a desegregation plan which it called its “Freedom of Choice” Plan. Under that plan, parents of all children would be given the opportunity to choose their choice of school before the board makes assignments. If more requests were submitted than a particular school could hold, preference would be given to those living closest to the school. Those parents who were denied would be allowed to identify a second choice.
Note: the “Freedom of Choice” plan would not be approved for the 1966-67 school year if it did not address the
desegregation of faculty and the ending of segregated athletic and extracurricular activities.
Following the approval of the U.S. Department of Education, Pitt County operated their schools under the “Freedom of Choice” plan as well as a Plan adopted in 1968 that reorganized the school system. This all changed when a Judge (John Larkins) rejected the ongoing approach and ordered the district to deliver a new plan that would “end the dual school system and effectively establish a single, non-racial unitary school
system by the fall of 1970.” Judge Larkins ordered the district to present a timetable for completion as
well as a report that detailed the exact use of each facility in the system, which schools might be paired with others and which might be closed.
As of March 1969, of the 7,145, African American students enrolled in Pitt County schools 2,464 were assigned to a school on a nonracial basis. (34.4%) and 159 of 549 teachers are assigned to a school on a nonracial basis.
The “Freedom of Choice” Plan that was finally and officially adopted by the Pitt County Board of Education Adopted on May 6, 1965 allowed all students in grades 1st, 9th-12th, and all new students the choice of which
school they would attend for the 1965-66 school year. For the 1966-67 school year, students in all grades except 7thand 8th would be given the choice on which school to attend and by the 1967-68 school year, schools for students of all grades would be assigned by choice.
In March, 1968, the U.S. Department of Health, Education, and Welfare (DHHW) stated that school districts had a duty to eliminate the historic dual system of schools across the south and that districts should adopt a plan of compliance that would completely desegregate their schools for the 1969-70 school year. In 1969-70, in response to the DHHW, Greenville City Schools submitted a plan for approval that shifted away from the “Freedom of Choice” model in favor of a geographic zoning model. The plan was rejected by the DHHW
due to Sadie Saulter Elementary School remaining an “all-black” school. Despite the rejection, however, Greenville continued forward with the plan, believing it was the best plan that would satisfy the needs of their
students with the demands of the federal government.
On October 24, 1969: a physical dispute erupted at Rose High School when African-American students accused the administration of removing two of their fellow students from the school even though they apparently had done nothing wrong. The dispute evolved into a fight during the lunch hour that saw one student injured and taken to the hospital and the school closed for the remainder of the day as well as the following Monday. In the days that followed, several African-American students presented a set of demands to administration which included the teaching of a Black History course, the removal of police from campus, and the re-admittance
of students suspended because of the October 24th fight.
Four days later, on October 28, the Greenville City School Board responded to the demands of those students. Its official response included several clauses, including the following:
1. The school board agreed to address transportation issues that resulted in overcrowding and tardiness;
2. The school board agreed to ensure fair treatment for all students regardless of race;
3. A survey regarding the offering of a Black History course would be used to gauge if there was sufficient interest in the course;
4. Board members agree that there must be an increased effort when it comes to ensuring that problems presented by African-American students receive equal interest and concern;
5. All school activities must be planned in a way in which all students can participate.
6. Any charges of discrimination made against a staff member will be fully investigated and if found true, will be properly dealt with.
On March 3, 1970, a motion was submitted asking that “Greenville City Board of Education be required to immediately adopt and implement a plan of desegregation for its schools and for its faculty.” It was filed in federal court. The motion also requested that any new school construction be halted until the district adopts such a plan and can prove that any new construction would help further desegregate the school system. The motion accused Greenville City Schools of using construction as a means of ensuring a system that would remain fully segregated.
The district court judge, John Larkins, ordered that the Greenville City School Board must present a new plan for the 1970-71 school year. Larkins ordered the board must “submit to the court within 24 days a plan utilizing paring, grouping, rezoning or other facility or planning method for the achievement of racial integration of student and faculty.” Larkins stated that the board’s previous plan was” deficient of teachers and school personnel…”
One week after Judge Larkins’ ruling, the Greenville City School Board debated 4 different plans desegregation before adopting Plan 4 (for the 1970-71 school year) with a 5-2 vote. Plan 4 maintained the geographic zones as they had been with only slight variations, converted Agnes Fullilove Elementary into a kindergarten and school for special programs, and accomplished the required ratios of desegregation by bussing students to each school.
An estimated total of 1044 elementary students would need to be bused to school for the academic year 1970-71.
Larkins’ court order finally forced Pitt County/Greenville to racially integrate its public schools. The school district was the last major district to desegregate in a state that was the nation’s second-to-last to desegregate (a little-known fact). About 58,000 black and white children began attending classes side by side when the order was implemented on Feb. 17, 1970, when 60% of Greenville’s black students were assigned to new schools while 10% of white students were required to switch.
On August 13, 1970, a complaint against the Greenville City School Board was filed by student Barry Christopher Henderson and his parents. The complaint was filed on behalf of a group of students who resided
in the Hillsdale, Greenbrier, and Carolina Heights sub-divisions that would be forced to be bused to Sadie Saulter Elementary School. The group requested an injunction that prevented Plan 4 from being implemented.
In 2006, the Greenville Parents Association filed a complaint with the U.S. Department of Education, contending that the district’s 2006-07 assignment plan discriminated against white students because it used race to balance some of its elementary school population. A settlement followed in November 2009, with the court reiterating the district’s continued desegregation obligations under earlier orders. In late 2010, the district approved a school assignment plan for 2011-12 which the parents Rhonda Everett, Melissa Grimes, and Caroline Sutton claimed left some schools with high minority, low-achieving student bodies, in violation of prior court orders, thereby resulting in a drop in student proficiency rates. The percentage of white students at the district’s C.M. Eppes Middle School dropped to 25%; at Elmhurst Elementary, to 23%; and at South Greenville Elementary, to 17%. The district also opened a new elementary school, Lakeforest, with only 12% white students. Each of those schools likewise had a corresponding drop in student proficiency rates. Those parents filed suit in federal court, requesting that the school assignment plan for 2011-12 be enjoined (not allowed to go into effect) because it would create a racially-identifiable non-Caucasian student body at Lakeforest Elementary and would increase racial isolation of non-Caucasian students at two other schools – Elmhurst Elementary and South Greenville Elementary. They filed suit against the Pitt County Board of Education, which sought to defend the assignment plan.
In writing the court’s opinion, Judge Malcolm Howard wrote: “In its order approving the settlement, the court questions whether the 1970 desegregation orders should be lifted. Consequently, the court ordered the parties to ‘work toward unity status so that the court could relinquish jurisdiction over this case and restore to the School Board full responsibility to the operation of its schools.’ The court ordered the parties to submit “a report detailing the School Board’s efforts and progress in achieving unity status and eliminating the vestiges of past discrimination to the extent possible,’ on or before December 31, 2012.”
The court denied the parents’ (plaintiffs) motion for injunctive relief, commenting: “The fact that the 2011-12 assignment plan results in schools that do not reflect the racial composition of the school system as a whole does not mean that the plan is unconstitutional.” The parents appealed the ruling.
The Fourth Circuit Court of Appeals affirmed the district court’s ruling. In its 2-1 majority opinion, Judge Albert Diaz wrote: “We need look no further for proof than the fact that the desegregation orders remained administratively closed for over thirty-five years, during which time the Board undertook the task of integrating the schools relatively undisturbed. Until 2008, no party came before the district court accusing the Board of neglecting or disregarding its obligations under the desegregation orders…. From the date the district court entered its desegregation orders, school administrators took immediate steps to effectively integrate their schools and move them toward unitary status. In very short order, both school districts had almost completely eliminated racially identifiable schools. While racial imbalance returned over the succeeding years, the respective boards consistently took measures to bring their schools back into balance.”
In other words, Pitt County schools had finally fulfilled their obligations under desegregation orders first entered more than 40 years ago and need no longer remain subject to federal oversight.
Tenth Amendment Keepers 