The inside story

Apr. 12, 2014 @ 01:53 AM

This editorial appeared in the News & Record, Greensboro

The Republicans who passed sweeping voting law changes last year said the measures were meant to prevent fraud and improve the election process.

Critics alleged more sinister motives. They claimed many, if not all, of the measures put in place were designed to reduce voting by minorities or Democrats in general.

The evidence to support that claim, which also was asserted in lawsuits filed by the U.S. Justice Department, the state NAACP and the League of Women Voters of North Carolina, was circumstantial. Early voting, Sunday voting, same-day registration, preregistration for 16- and 17-year-olds, provisional ballots and straight-party voting typically have been utilized a little more by minority and Democratic voters than by white Republican voters. Minority voters also are more likely to lack an acceptable photo ID, which the law also will require in 2016.

Suspicions don't amount to proof. Evidence of intent is necessary to successfully challenge the voting laws. That's why plaintiffs asked for the communications among Republican legislators, their consultants and lawyers as they crafted last year's legislation.

If these communications portrayed a desire to achieve the stated purposes -- improving ballot security and voting efficiency, ensuring more trustworthy election outcomes -- the plaintiffs might be proven wrong. On the other hand, if they revealed hopes of putting minority voters at a disadvantage, the case would be easier to win.

Legislators refused to turn over these communications, citing legislative immunity and attorney-client privilege. Both principles are valid in some instances, but motive also matters.

U.S. Magistrate Judge Joi Elizabeth Peake ruled March 27 that there is no absolute legislative immunity in this case.

This was not a total victory for the plaintiffs, and Peake left some issues still to be resolved. But, she recognized that Congress, in passing the Voting Rights Act, put "legislative motive directly at issue."

It is. Just as literacy tests were really intended, not to make sure voters could read, but to limit voting by blacks, so might similar motives underlie newer forms of voting restrictions. Since federal courts have jurisdiction over state voting laws, they can compel the release of evidence that otherwise might be protected by legislative immunity. Many of the documents sought are communications between legislators and outside parties that normally would be considered public under the state's open records law. Greater protection can be allowed for communications between legislators and their lawyers or those circulated only among legislators and their staffs.

The judge directed plaintiffs and defendants to confer in more detail about specific documents and issue a status report. A final decision will follow eventually -- the case isn't scheduled to go to trial until next year -- but Peake indicated she will order legislators to turn over at least some of the documents requested.

The way to get to the truth of the matter is to see what legislators were saying among themselves about the new voting laws.