Harsh Lessons For Students

By GENE NICHOL

North Carolina’s new voter ID law, presently being litigated in federal court in Winston-Salem, is an election lawyer’s dream. Ending same-day registration, cutting early voting from 17 days to 10, eliminating a popular high school program encouraging students to register before they turn 18, expanding poll “observers,” and instituting the country’s toughest photo ID requirement, the statute is a cornucopia of voter restriction. Small wonder we’ve been sued by the federal government.

The voter ID bill changes election law in dozens of disparate ways. The principal features have only this in common: each makes it harder to vote than it was before.

One of the challenges to the statute hasn’t been seen in our voting rights jurisprudence. Seven college students, from across the state, argue that the oddly constructed identification measure violates the 26th Amendment to the US Constitution, the provision that reduced the voting age from 21 to 18 and says the right to vote “shall not be denied or abridged … on account of age.”

Marc Elias, the students’ attorney, claims, straightforwardly, the “changes to the election law were intended to make it more difficult for young people to vote.” Indeed they were. As of 2016, a government photo ID is mandated. Approved state-issued identification cards, however, don’t include university IDs, even those of public universities. Nor are out-of-state drivers licenses accepted for qualified voters, even though they’d settle any purported identity question. As one plaintiff put it, many students don’t have a state identification card and “they’ll arrive at the polling place carrying out of state licenses and student IDs.”

North Carolina’s present leaders don’t like the way young people vote. Nationally, those under 30 cast more than 20 million ballots in the 2012 presidential election. North Carolina had one of the highest under-30 turnout rates in the country. And they opted for President Obama by massive margins. As with blacks and Latinos, the sin unforgivable. But the students won’t be limited to circumstantial claims of impact and motivation. The legislature explicitly ended programs designed to pre-register teens. Despite several silly attempts, they’ve been unable to come up with any plausible explanation for the change. They also decided to allow military and veteran IDs, while rejecting university ones. Local decisions to close university polling places intensify the burden. The record, as it’s said, speaks for itself.

The 26th Amendment claim triggers particular irony in the Tar Heel State. On July 1, 1971, we celebrated becoming the pivotal 38th state to ratify the proposed amendment giving 18-year-olds the right to vote – taking it over the top. One wonders if our leaders now regret the vote. Dwight D. Eisenhower, a Republican of some note, was the first sitting president to ask that the voting age be lowered to 18. When Richard Nixon signed the newly ratified amendment, he said: “young voters will provide a spirit of moral courage … (recognizing) the America dream can never be fulfilled until everyone has an equal chance to fulfill it.” Different times. Different Republicans.

A couple weeks ago, the Bipartisan Policy Center – founded by Bob Dole, George Mitchell, Howard Baker and Tom Daschle – published a report entitled “Governing in a Polarized America”. It recommended changes in the electoral process, congressional governance and civic involvement. The Center urged: “colleges and universities [to] reaffirm their missions to develop engaged and active citizens [and] political parties [to] ensure all efforts are made to engage (those) under-30.” We’ve chosen a different path. Many North Carolina Republicans are convinced that the lawsuits, allegations of unconstitutionality, and assertions of transgression pressed in response to their voting moves are markedly unfair. Democrats used their legislative powers to expand access to the electoral process. Republicans now use similar authorities to do the opposite. Turnabout, surely, is fair play. But the Constitution doesn’t consider the expansion and the contraction of electoral participation as legal equivalents. The text contains a half dozen explicit limitations on state authority to abridge voting rights. It lists no constraint on states being too generous in offering political access. Government violates the American promise by diminishing voter participation, not by enlarging it. And, as the 26th Amendment reminds, making it harder for students to vote sins against the past, sins against the present, and sins against the future.

Gene Nichol is Boyd Tinsley Distinguished Professor of law and director of the Center on Poverty, Work and Opportunity at the University of North Carolina and President Emeritus of College of William & Mary.

From The Progressive Populist, August 15, 2014