“What looks good on paper may fall apart in practice.”

Are ‘reasonable impediment’ affidavits the answer for voters who don’t have ID?

It was meant to be a safety net.

Any North Carolina voter who couldn’t produce one of eight state-approved photo IDs required at the polls in 2016 could ask for an affidavit stating that a “reasonable impediment” kept them from getting an ID.

They would be handed a form listing eight pre-approved impediments, such as “lack of transportation” or “lost or stolen ID.”

They could select one of the listed impediments or check “other” and write in one of their own.

No official could question the voter’s self-described ‘impediment’ unless it was “factually false, merely denigrated the photo identification requirement, or made obviously nonsensical statements.”

After declaring their impediment, the voter would be asked to supply the last four digits of their social security number, or a voter registration card (which no longer qualifies as acceptable voter ID in North Carolina) or a non-photo document like a utility bill or bank statement.

After signing the affidavit they would be given a provisional ballot.

It was supposed to be the ultimate safety net — not just for the voter, but for a law still in litigation as North Carolina’s presidential primary got underway in March 2016.

The reasonable impediment affidavit option was not included in the original text of the Voter Information Verification Act (VIVA)that landed on Governor Pat McCrory’s desk on August 12, 2013.

The bill he signed simply required in-person voters to present one of the approved photo IDs. It also required the state government to provide free IDs through the Department of Motor Vehicles.

Absentee ballots were exempt, as were disabled voters using curbside voting.

VIVA’s ID requirement was just one provision in an omnibus bill that created such a sweeping overhaul of all North Carolina’s election rules it is frequently ranked among “the strictest in the nation.”

By the end of September 2013 three separate lawsuits to overturn VIVA had been filed in federal court by the Department of Justice, the North Carolina chapter of the NAACP, the League of Women Voters and a collection of civil rights groups and individual plaintiffs.

Together, the three lawsuits charged VIVA’s overhaul of North Carolina’s election rules violated the 14th, 15th and 26th amendments of the U.S. Constitution and Section 2 of the Voting Rights Act by “denying or abridging the right to vote on account of race, color, or membership in a language minority.”

The three lawsuits were rolled together for trial purposes and the long process of litigation began, grinding slowly through discovery, subpoenas, and various hearings, until a trial date was set for July 13, 2015.

Then, on June 18, just three weeks before trial, the North Carolina General Assembly abruptly passed House Bill 836, which added the reasonable impediment affidavit option to VIVA.

Republican lawmakers called H.B. 836 a “fail-safe” and a response to public feedback on the new voting law.

Democratic lawmakers framed the amendment as a Hail Mary pass.

“There’s a lawsuit on this law next month in Winston-Salem,” Democratic Senator Josh Stein told his Republican colleagues.“Your lawyers have clearly told you that your voter ID law is clearly unconstitutional.”

Gov. McCrory signed the bill on June 22.

H.B. 836 landed on the approaching trial like a stun grenade. By June 23 attorneys for both sides began a series of conferences with federal district Judge Thomas Schroeder. Lawyers for the state of North Carolina said all claims against the voter ID provision of VIVA were now moot. Plaintiff’s attorneys asked for time to assess the impact of the new affidavit option.

On June 26, Judge Schroeder ordered the trial split into two parts. The July trial would go forward as scheduled, but would not include the photo ID provision. It would consider claims related to VIVA’s many other provisions, such as changes to the early voting calendar and same-day registration.

After months of negotiations and a failed attempt at a settlement, a trial covering claims against the VIVA’s voter ID provisions was set for January 25, 2016.

The idea of offering a reasonable impediment affidavit to voters without a photo ID was not invented by the North Carolina General Assembly. It was borrowed from South Carolina’s Act R54, one of the last voter ID laws to pass preclearance before the Supreme Court’s Shelby decision effectively ended the preclearance process.

According to court documents, the reasonable impediment affidavit was first proposed by South Carolina Democratic Senator John C. Land III in a January 2010 meeting during the creation of the law.

The affidavit option would prove crucial to securing preclearance for Act R54.

The October 2012 opinion granting preclearance to Act R54 is 41 pages long; nearly half those pages contain some reference to the reasonable impediment affidavit, praising it as “sweeping,” “expansive,” and “central to our resolution of the case.”

“At first blush,” wrote Judge Brett Kavanaugh, “one might have thought South Carolina had enacted a very strict photo ID law…But that rhetoric was based on a misunderstanding of how the law would work.”

The opinion contained a lot of instructions for implementing the new provision, but no data proving it would actually succeed.

Because there wasn’t any.

No other state had ever proposed anything like the reasonable impediment affidavit before, let alone tried it. South Carolina would be the first.

During the preclearance process, lawyers representing the state of South Carolina called Dr. M.V. Hood, Professor of Political Science at the University of Georgia, as an expert witness.

Dr. Hood testified that Act R54 wouldn’t disproportionately burden minority voters.

When challenges to VIVA’s ID provision were heard in court in January 2016, Dr. Hood again testified — this time for the state of North Carolina.

As part of his testimony, Dr. Hood produced a report documenting how many reasonable impediment affidavits had been executed during South Carolina’s 2014 general election. He reported a total of 131 affidavits spread over 45 counties (no data was available for Spartanburg County).

Marci Andino, the Executive Director of the South Carolina State Election Commission, gave a video deposition as part of the January trial. Her remarks seemed to indicate South Carolina was tracking affidavit use:

Q. Does the State Election Commission have any power to require counties to track and tally the use of reasonable impediment affidavits?

A. We do now, but we didn’t in 2014.

Q. Tell me about, “we do now”.

A.Well, actually in — in 2014, in June of 2014, the State Election Commission did get supervisory authority over the counties.

Dr. Hood’s report only documented affidavit use during the 2014 election cycle. On March 22, four weeks after South Carolina’s presidential preference primaries, I called the South Carolina State Election Commission and asked for the affidavit figures from the 2016 primaries.

I was told the Commission didn’t collect that data. I asked where I might find it.

I heard a small chuckle.

“I suppose you could call all the counties.”

South Carolina has 46 counties. I searched online, found a list of numbers for the county boards, and started dialing.

Some county employees insisted I could only get affidavit data from the State Election Commission(SEC). Others said they weren’t keeping an official count, but since the primary ballots were “all bagged up” or in boxes “in the back,” they would look through them, count the affidavits, and call me back.

Some counties asked me to request the data via email to a specific commission employee. Others told me how to find the information in the online minutes from their canvass meetings.

When I called Dorchester County an employee simply sat down, opened a computer file and gave me the number.

Despite some initial confusion, no one ever denied or even questioned my request. In county after county, commission employees were universally professional and polite. Boxes and bags of ballots were opened and counted without complaint. Phone calls were returned —often the next day. Emails got responses, usually including an apology for asking me to wait.

I also called Dr. Hood, who agreed to discuss his report with me. I was surprised to learn he had also gathered his data by calling one county commission at a time.

He told me the State Commission is “really dependent upon the counties to report up to them. That’s the reason I had to go to the county level and you’re having to, because a lot counties just, for whatever reason, are not reporting up to that level.”

I asked Dr. Hood if he was aware of any other studies of affidavit use, other than his own.

“Not that I know of,” he said.

I mentioned the list of pre-approved impediments on South Carolina’s affidavit: Transportation. Lack of birth certificate.

Were South Carolina officials collecting this data and using it to improve access to the polls?

“Not that I’m aware of,” he said. “And they’re really dependent on the counties to report up to them.”

He said the affidavit option “seems to be operating effectively in South Carolina.” He called affidavit use in South Carolina “pretty rare.”

“There’s a very small subset of people who don’t have an ID that’s valid under state voter ID law and can make some impediment to getting one,” he said.

He expects the number of affidavits used to decline in future elections.

“So the idea is that, over time, you’re going to hopefully have fewer and fewer people that might be adversely affected because they’re going to get in compliance with the law,” he said.

As I continued down the list of counties Dr. Hood’s prediction seemed to be playing out. The total number of affidavits was dropping. But another pattern emerged. Counties reporting the most reasonable impediment affidavits in 2014 were again reporting higher numbers in 2016.

I looked for some common thread in those counties. Poverty? Large populations student voters?

When I finished collecting data from all 46 county boards I contacted the SEC a second time. I asked to speak to Chris Whitmire, the Director of Public Information and Training.

Mr. Whitmire has been with the SEC for 11 years and was working there when Act R54 was implemented.

Like the three-judge panel who granted the law preclearance in 2012, Mr. Whitmire regards the reasonable impediment option as the ultimate fail-safe.

“And sort of a bottom line is that if you’re a registered voter in the right precinct, there’s no circumstance under which a South Carolina voter should not be offered opportunity to vote,” he told me.

He said no reasonable impediment affidavits had ever been discarded or even challenged.

“So no one has ever come to the voter registration board ballot hearing and tried to proved someone’s affidavit is false,” he said.

He said he knew this because the SEC kept data on the affidavits.

I asked Mr. Whitmire if the SEC collected statistics on the most frequently cited ‘impediments.’ He said no. I asked if there had been any studies to determine why some counties had higher rates of affidavit use.

“I don’t know,” he said. “So the answer’s ‘no.’ I don’t have a guess as to why that might be, either.”

I told him that I had been instructed to call the counties myself because the SEC didn’t collect affidavit statistics.

He immediately confirmed my email address and began sending me 2016 election data as we spoke.

“I’m sorry you got that message from this office,” he said. “Maybe the person at the front desk didn’t realize we had that information.”

When I opened the spreadsheet Mr. Whitmire had sent, I couldn’t find any affidavit data. I saw columns labelled “signature did not match” and “return envelope not witnessed,” but nothing that seemed related to reasonable impediment affidavits.

I contacted Mr. Whitmire a second time via email. He responded that the spreadsheet didn’t specifically list the number of reasonable affidavits but was a breakdown of total provisional ballot use. He said he would pull some numbers “from a different source” to look at the number of reasonable affidavits submitted in the 2016 primary.

He came up with 25.

I had 72.

After another exchange of emails failed to clear up the discrepancies, we again spoke by phone.

Mr. Whitmire told me that the raw numbers from the first election to use the affidavit in 2014 were gathered using a simple survey. The 2016 primaries were the first time the counties were asked to record affidavit numbers using the state’s online system.

It was not a popular decision. In the current online system, each voter’s record had to be updated individually, including the voter’s registration number, the type of ballot cast and the status of that ballot.

“What we found and what counties were telling us is that, ‘Hey, guys, some of us have hundreds of these [provisional ballots]or more than a thousand of them, and you don’t have a way for us to mass-update this?’” he explained.

As a result, data on reasonable impediments was often left blank.

Mr. Whitmire said the SEC was in the process of improving online data collection and hoped to have more complete numbers for South Carolina’s upcoming June primary.

In the end, he advised me to rely on the data I had collected by phone.

“I would defer to the information that the person gave you on the phone as obviously more accurate than this,” he said, “because [the counties] are not even giving me that information.”

North Carolina’s 2016 presidential primary was the first election to implement VIVA’s photo ID requirement — including the reasonable impediment declaration.

Over 40,000 provisional ballots were cast, more than twice the number cast in the 2012 election. Included in that number were over 1,000 reasonable impediment declarations.

In Durham County, over 1900 provisional ballots were mishandled. Some went missing; others were counted twice.

Software purchased by Forsyth County officials did not print a signature line at the bottom of provisional ballots. Over 160 provisional ballots were rejected when voters did not sign them.

During the primary, Democracy North Carolina, a voting rights group, conducted what it called “ largest nonpartisan poll monitoring project in the history of North Carolina,” deploying 700 volunteer monitors to more than 50 counties.

Poll monitors reported many voters who were entitled to a reasonable impediment affidavit under the new law were not told about the option by poll workers. When reasonable impediment declarations were submitted, whether or not they were accepted varied from county to county.

Voters who checked “other” on the form and wrote in their own impediment ran the greatest risk of having their ballot rejected. Despite assurances from lawyers and lawmakers that the “reasonableness” of their impediment could never be questioned, affidavits with nearly identical impediments were accepted in one county and rejected in another.

Poll monitors also reported that at least four different versions of the affidavit form were being used. One version required voters to sign the affidavit twice on the same page. Voters who signed only once had their ballots discarded.

Bob Hall is the Executive Director of Democracy North Carolina. He calls the affidavit option “absurd” and “cumbersome.”

“It adds another pathway in a bureaucratic maze,” he said.

“We’ve got a hundred different [county] systems and within that there’s many different ways that different things are being interpreted.”

Democracy North Carolina reported problems to the State Board of Elections and worked with state and local officials to retrieve wrongly rejected ballots.

“It can’t be uniformly enforced,” Hall said.

After Election Day on March 15, the North Carolina State Board of Elections launched a statewide audit. Twenty counties were forced to recanvass — essentially recount — their ballots. The official state canvass certifying North Carolina’s primary results was delayed until May 31.

On April 25, three months after the conclusion of the January trial, Federal District Judge Thomas Schroeder issued a ruling upholding VIVA.

His opinion was 479 pages long.

The opinion leaned heavily on South Carolina v United States, the 2012 ruling that granted Act R54 preclearance.

“…the three judge panel’s examination of the burden imposed by South Carolina’s very similar voter-ID law is useful to this court’s examination…” he wrote.

He also relied on Dr. Hood’s report of 131 reasonable impediment affidavits executed in South Carolina’s 2014 general election.

Judge Schroeder predicted “…the data suggest that poll workers are not likely to encounter an overwhelming number of such voters.”

He expressed confidence in the effectiveness of the affidavit as a safety net, citing Marci Andino’s testimony.

“Tellingly, despite also permitting the rejection of “factually false” impediments, the Executive Director of the South Carolina State Election Commission was not aware of a single reasonable impediment affidavit being challenged, much less rejected,” he wrote.

He dismissed the testimony of an expert witness who warned the affidavit process might cause problems for some voters as “heavy on theory and light on facts.”

Meanwhile, in North Carolina, state and local officials would spend another five weeks sifting through rejected ballots, trying to certify the 2016 primary results.

At the time I spoke to Dr. Hood, North and South Carolina were the only two states experimenting with reasonable impediment affidavits.

“Other states may adopt this, actually,” he said. “I think that’s quite possible.”

On April 12 another three-judge panel — this time from the 7th Circuit Court of Appeals — ruled that opponents of Wisconsin’s voter ID law could return to federal district court to fight for an affidavit option as a “safety net” for voters unable to get acceptable IDs.

That sounded familiar. I contacted the American Civil Liberties Union of Wisconsin and they put me in touch with Sean Young, a Senior Staff Attorney with the ACLU’s Voting Rights Project.

He called the affidavit option “the lesser of two evils.”

“And so, I don’t want anyone to mistake our advocacy for this affidavit option as an endorsement of it, that it can cure all ills — because it can’t,” he said.

He emphasized that the ACLU was demanding that Wisconsin voters using the affidavit option be given regular ballots, not provisional ballots.

“Provisional ballots are confusing,” he told me. “Election officials don’t like dealing with them. Voters are confused by them, poll workers are confused by them and many of them just don’t get counted for some unclear reasons.”

He told me the ACLU had identified three groups of voters who needed the affidavit: those with no birth certificates, those whose birth certificates had been lost or destroyed, and voters whose personal records had clerical errors that made seeking an ID a “kafkaesque kind of bureaucratic nightmare.”

He said evidence gathered by the ACLU “shows that these folks number in at least the thousands. So we’re not talking about a handful of people here.”

He quoted the panel’s ruling:

“The right to vote is personal and is not defeated by the fact that 99% of the population may be able to vote.”

“Our democracy is for all eligible voters and we shouldn’t stand for having a single person disenfranchised for an illegitimate reason,” he said.

Later, while reviewing court documents, I discovered a single line of warning in the 2012 South Carolina v United States opinion, the decision that precleared Act R54 and made reasonable impediment affidavits a reality:

“We are fully aware, moreover, that what looks good on paper may fall apart in practice.”