There is nothing in the world like sitting in a room, watching as some of the most brilliant lawyers in America duke it out like some sort of UFC smack down. Even so, it was surprising to see how much energy they spent arguing back and forth over the meaning of the term, “status quo.”
At issue is whether or not it would be a good idea for the federal courts to enact a temporary injunction, around 40 days before Election Day, in order to stop several aspects of North Carolina’s election reform law until after the election.
The plaintiffs (represented by attorneys from the NAACP, League of Women Voters, Eric Holder and a few hand-picked citizens) want to derail this law immediately and return to the “status quo.” By that, they mean what we had before the governor signed House Bill 589, enacting it into law. The defendant (represented by attorneys from the Legislature, NC Attorney General and the Governor) want the status quo to mean the moment and governor signed the bill. They argue that the law was in effect during this year’s primary election, and are the new “status quo.” The Judges were enjoying the banter and even throwing in a few zingers along the way.
Semantics aside, the real issue boiled down to a term known as “irreparable harm.” The plaintiffs argued that if this election law remains in force for the November elections, then people will be irreparably harmed. And since those people would disproportionately be the poor and the minority community, they further reason, this law is discriminatory under Section 2 of the US Civil Rights Act.
Their biggest problem is that silly concept known as, “burden of proof.” Other than with a hypothetical situation about an old lady who cannot vote at the precinct next door to her and instead has to get a ride to a precinct that’s a mile or two away, the opponents of open and honest elections brought no evidence.. Judge Wynn conceded that a situation like that is perfectly normal for school assignments, but insisted it was improper for voting purposes.
According to arguments by the attorney representing the Legislature, Tom Farr, the other side never even bothered to conduct any statistical analysis that would normally be conducted in matters of this nature, suggesting they knew the hard evidence played against their sob stories. The plaintiff seemed to concede the point and just kept charging ahead with hypotheticals.
While that all looked encouraging for those of us who want open and honest elections, the state had a burden to prove too! They claimed that it would be too disruptive to change the election law this close (approx 40 days) before the November election. From a non-attorney persepective (i.e. mine), it seemed the state did not make a very clear case of the huge burdens if the injunction were ordered.
The state’s legal team kept returning to the late changes “this close to the election.” The plaintiffs said it would be no big deal. Of course this is debatable. Kim Strach, Executive Director of the North Carolina State Board of Elections, gave a thumbs up, can do testimony during the District Court hearing. In short, she said her organization will faithfully execute whatever laws the Legislature makes. The Wake County Director of Elections, Cheri Poucher, said it would be a major disruption this late in the game.
But the plaintiffs called on players from Kim’s bench to refute Poucher’s assertion. Bartlett holdover, Mark Burris, the BOE’s head IT guy, testified at the earlier trial that it would be as easy as flipping a switch. The state’s attorney’s disagreed vehemently with that over simplification today and the final decision comes down to three Federal Judges and how froggy they feel about overturning the will of the popularly elected Legislature and Governor.
A ruling is expected very soon, but just like the US Supreme Court verdicts, it only comes out after three judges have argued it among themselves and written their decision.
Someone smarter than I once said, “democracy is two wolves and a sheep voting on what to have for lunch,” and that rule applies in this trial as well. The only unanswered question we all have after the court was adjourned, involved the numbers: How many of these three Federal Judges will turn out to be sheep and how many will be wolves?