The recent U.S. Fourth Circuit Court of Appeals ruling that North Carolina’s Voter Information Verification Act (VIVA) was unconstitutional has its roots in partisan efforts to reshape North Carolina elections. While the press has not reported it, an important member of the panel that made this (and other rulings against our state) is Judge James Wynn, Jr. He has a long history of partisan political activity in North Carolina and actively worked with the people who instigated the case against North Carolina.
While most judges with these obvious conflicts would recuse themselves from hearing the case, Wynn had no such scruples and used the case to help his partisan friends win in federal court what they couldn’t achieve at the ballot box.
Prior to his appointment by President Obama to the federal court and his confirmation in August 2010, Judge Wynn served on the NC Court of Appeals and briefly on the NC Supreme Court. He was appointed to the state’s high court in 1998 by Democratic Gov. Jim Hunt, but lost the 1998 election to George Wainwright. He was reappointed to the State Court of Appeals by Hunt and served there until his appointment to the federal bench.
While serving on the state Court of Appeals, he also lost an election for the NC Supreme Court in 2004. While officially it was a non-partisan election, Wynn lost to Republican Paul Newby. Wynn benefited from appointments to judicial office in the state as voters mostly rejected his attempts to win office through election.
Did this record of losing elections in the state to Republicans influence his decision to reject state laws? His antipathy to NC elected officials was made clear in the original hearing on this issue last September. Here is an account of his comments from that hearing:
Wynn proclaimed, “Why does the State of North Carolina not want people to vote?” This nonsense came after he made it clear that he didn’t like the bill, he didn’t like the way it was passed and he blamed the state (namely the legislature) for being in court because they passed the bill in the first place. He also made an aside comment to the state that “you” wouldn’t have changed the law if “you” only had primaries.
Wynn also went on a rant about out-of-precinct voting. He decried the fact that the state wouldn’t let “Grandma vote anywhere she wanted to.” He talked about his own personal proximity to a polling place that is not in his precinct but he would have to drive a couple of miles to his correct polling place. That’s right – the judge is upset that he has to drive a couple of miles to exercise his right to vote in the correct polling place in his precinct.
Wynn also has a close working relationship with the head of one of the organizations challenging the VIVA law – the Rev. William Barber, president of the NC NAACP. On one of Barber’s resumes, he lists organizing a “Get Out to vote Rally and Radio-Thon” that included Judge Jim Wynn and only Democrat candidates and politicians, hardly a non-partisan “get out the vote” affair. At the time Wynn was running for Supreme Court, the race he lost to Republican Newby.
Wynn has not confined his efforts to election law. He also was the dissenting vote in a March decision on North Carolina’s pro-life license plate. He again wanted to invalidate the actions of the NC legislature. The majority of the panel upheld the law.
The VIVA decision by the 4th Circuit overruled the decision by U.S. District Court Judge Thomas Schroeder upholding the law in a 485-page written opinion. In their decision, the Fourth Circuit panel did not refute Schroeder’s facts, nor did they find evidence of anyone actually being denied the ability to vote.
They also have not explained how finding that there is a constitutional right to 17 days of early voting squares with the 28 states (including Virginia, in the Fourth Circuit Court of Appeals), which do not offer what NC does. On registering 16-year-olds to vote – only 10 other states offer that option. North Carolina has always allowed 17-year-olds who will be 18 by Election Day to register and vote in primaries.
Ordering the state to return to allowing same-day voter registration will also put North Carolina in the minority of about a dozen states that have such laws. If it was unconstitutional for our state to end it, what about the other states?
What we see in the Fourth Circuit Court of Appeals’ VIVA decision is an activist court that wants to substitute its judgments for the will of the people. In our federal system, elections are administered by the states. Most the elements of VIVA have previously been tested and found constitutional. The Fourth has decided to go for broke and throw out important election safeguard provisions in VIVA, in hopes that the current Supreme Court deadlock keeps the high court from intervening, thus allowing the Fourth Circuit to interfere in the 2016 NC election.
As one knowledgeable lawyer told me, “Fourth Circuit has performed a judicial coup d’état.”
Wynn is not unlike Wake County Superior Court Judge Mike Morgan, who is running for Supreme Court in North Carolina, when it comes to conflicts of interest and not recusing themselves in a court case dealing with North Carolina election law. You can read about his conflicts and problems in this article and in this article.
Judge Wynn, unable to win elections in his own state, has found a lifetime appointment where he has more power to impose his will than he ever would have as an elected official in NC. He is using that newfound position to implement a liberal/progressive agenda that has been repeatedly rejected by North Carolina Voters.
As a follow-up to this article, Attorney General Roy Cooper announced on August 3, 2016 he would not appeal the above ruling to the US Supreme Court. If you want to let AG Cooper know what you think, go to www.cooperdoyourjob.com and sign the petition.
Francis X. De Luca is the President of the Civitas Institute.