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How North Carolina's next attorney general could impact voting rights

After the 2020 election, U.S. Rep. Dan Bishop of North Carolina became an outspoken proponent of the lie that Democrats rigged the results. He accused the rival party of waging a nationwide campaign to block the courts and disrupt election administration and announced he would run in the Electoral College votes in four states crucial to Joe Biden's victory .

“Democrats’ goals were to weaken election security, undermine positive voter identification and create opportunities for post-election ballot box stuffing,” Bishop said at the time. “This was a nationwide, partisan attack on the constitutional delegation of authority to regulate elections specifically to state legislatures.”

Bishop expressed skepticism about the outcome of elections in other states, but not the final results in North Carolina, which Donald Trump won in 2016 and 2020. But just before Election Day 2020, Bishop criticized North Carolina's governor, attorney general and “national Democratic activists” for what he saw as partisan attacks on the integrity of the election.

Now Bishop is running for attorney general, an office that would give him enormous power in protecting North Carolina's “election integrity” and determining its future on voting rights.

Prof. Irv Joyner (Photo: NCCU)

“There will continue to be efforts to challenge people's right to vote, the requirement to use voter ID, the counting and security of ballots when voting, and how this should be handled at the state level,” said Irving Joyner. Professor of Law at North Carolina Central University School of Law. “Whoever is elected Attorney General in 2024 will determine what positions the Attorney General’s Office and the State of North Carolina take on these challenges and how these challenges are handled in court.”

That means an elected official who tried to overturn the results of an election four years earlier could lead an office originally intended to expand North Carolinians' access to the ballot.

“We’re in some uncharted territory here,” said Christopher Cooper, a political science professor at Western Carolina University. “We're talking about electing someone to office who would enforce voting rights laws, who doesn't believe the election was free and fair, even though it clearly was.”

“A crucial role in protecting voting rights”

A century and a half before Bishop voted against certifying the 2020 election, North Carolinians adopted a new state constitution as a condition of rejoining the Union after the South lost the Civil War. Among the provisions was a requirement that North Carolina's attorney general win the election in a statewide race, an attempt to make the state's top lawyer more responsive to the needs of the electorate – a situation that changed virtually overnight when thousands of newly freed, formerly enslaved men were given the right to vote.

Robyn Sanders
Robyn Sanders (Photo: Brennan Center for Justice)

That Reconstruction Constitution of 1868 also expanded the attorney general's role in protecting voting rights, allowing him to prosecute violations of election laws, said Robyn Sanders, counsel for the Democracy Program's Voting Rights and Elections Team at the Brennan Center for Justice.

“These changes were made with the goal of protecting the voting rights of those newly enfranchised, formerly enslaved African Americans,” Sanders said. “This was an important step to ensure that the voting rights of all citizens, especially those who have recently gained the right to vote, are protected and upheld.”

For decades after Reconstruction ended, poll taxes and literacy tests were used to suppress black voting rights, but the attorney general's powers to protect voting rights remain intact today. North Carolina's attorney general could take action against attempts to suppress the vote and intimidate voters, Sanders said. They can investigate and prosecute voter fraud, file lawsuits to challenge restrictive voting laws that disproportionately affect certain groups, and play a role in monitoring elections to ensure they comply with voting rights laws.

“The state AG really plays a critical role in protecting voting rights,” Sanders said.

By contrast, Sanders said an attorney general who is more hostile to voting rights could decline to enforce voting rights protections or propose creating a task force to investigate alleged mass voter fraud.

“Maybe this particular attorney general would manipulate information to suggest that voter fraud is this widespread problem when all the evidence from scientists and academics and lawyers has refuted that time and time again,” Sanders said.

The attorney general can also resist legislative efforts to restrict access to the ballot box, as Attorney General Josh Stein has done.

“Given the history of the country and the state, I think it is particularly important that the attorney general send this signal to all voters, but especially to those who are African American and from other marginalized communities continue to be disenfranchised, past and present, and face obstacles and hurdles to voting,” Sanders said. “I think this can help strengthen democracy and ensure that all citizens are heard.”

Chris Cooper
Prof. Chris Cooper (Photo: wcu.edu)

Standard Republican versus standard Democrat

Bishop's opponent is a congressman, Democrat Jeff Jackson. For Cooper, the candidates couldn't be more different.

“Do you want a regular Republican or a regular Democrat?” Cooper asked. “Both candidates are an integral part of the party brand.”

When it comes to election administration, Cooper says there is a spectrum. On one side are security measures, things like voter ID — which research shows has a disproportionate impact on communities of color — and combating voter fraud. On the other hand, there are methods to expand access to the ballot, such as expanding early voting and expanding mail-in voting rules.

“If you think of the conversation about elections as the tension between security and access, you can imagine that with Bishop and Jackson, of course, it's much more on the access side,” Cooper said.

The first bill Jackson introduced during his time in the General Assembly would have ended gerrymandering in North Carolina by creating an independent redistricting commission. It didn't pass.

“It's not that he wants an insecure election or anything like that, but he's much more likely to advocate for voter access issues or what he would call 'fair representation,'” Cooper said.

Bishop is unlikely to challenge the General Assembly if the Republican supermajority passes more legislation restricting access to the voting booth.

“I can’t imagine Dan Bishop trying to defend the duration of early voting or impinge on the Legislature’s authority in any way,” Cooper said.

While North Carolina's attorney general doesn't make election laws, he can dedicate his office's resources to supporting voting rights and combating voter suppression tactics and unrepresentative campaign schemes, said Bob Phillips, executive director of Common Cause North Carolina.

“My fear is working hand-in-hand with a legislature that may not be friendly to voting rights either. This could be a real disaster for our state,” Phillips said.

Anna Harden

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