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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-1468
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No. 16-1469
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No. 16-1474
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and
LOUIS M. DUKE; CHARLES M. GRAY; ASGOD BARRANTES; JOSUE E.
BERDUO; BRIAN M. MILLER; NANCY J. LUND; BECKY HURLEY MOCK;
MARY-WREN RITCHIE; LYNNE M. WALTER; EBONY N. WEST,
Intervenors/Plaintiffs,
v.
STATE OF NORTH CAROLINA; JOSHUA B. HOWARD, in his official
capacity as a member of the State Board of Elections; RHONDA
K. AMOROSO, in her official capacity as a member of the
State Board of Elections; JOSHUA D. MALCOLM, in his official
capacity as a member of the State Board of Elections; PAUL
J. FOLEY, in his official capacity as a member of the State
Board of Elections; MAJA KRICKER, in her official capacity
as a member of the State Board of Elections; PATRICK L.
MCCRORY, in his official capacity as Governor of the State
of North Carolina,
Defendants - Appellees.
---------------------------CONSTITUTIONAL ACCOUNTABILITY CENTER; STACEY STITT; MARIA
DIAZ; ROBERT GUNDRUM; MISTY TAYLOR; SERVICE EMPLOYEES
INTERNATIONAL UNION; DEMOCRACY NORTH CAROLINA; UNC CENTER
FOR CIVIL RIGHTS; PEARLEIN REVELS; LOUISE MITCHELL; ERIC
LOCKLEAR; ANITA HAMMONDS BLANKS,
Amici Supporting Appellants,
JUDICIAL WATCH, INCORPORATED; ALLIED EDUCATIONAL FOUNDATION;
THOM TILLIS; LINDSEY GRAHAM; TED CRUZ; MIKE LEE; JUDICIAL
EDUCATION PROJECT; LAWYERS DEMOCRACY FUND; MOUNTAIN STATES
LEGAL FOUNDATION; AMERICAN CIVIL RIGHTS UNION; STATE OF
INDIANA; STATE OF ALABAMA; STATE OF ARIZONA; STATE OF
ARKANSAS; STATE OF GEORGIA; STATE OF KANSAS; STATE OF
MICHIGAN; STATE OF NORTH DAKOTA; STATE OF OHIO; STATE OF
OKLAHOMA; STATE OF SOUTH CAROLINA; STATE OF TEXAS; STATE OF
WEST VIRGINIA; STATE OF WISCONSIN; PACIFIC LEGAL FOUNDATION;
CENTER FOR EQUAL OPPORTUNITY; PROJECT 21,
Amici Supporting Appellees.
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No. 16-1529
CAROLINA
STATE
BOARD
OF
Defendants - Appellees,
and
CHRISTINA
KELLEY
INCORPORATED,
GALLEGOS-MERRILL;
JUDICIAL
WATCH,
Intervenors/Defendants.
---------------------------CONSTITUTIONAL ACCOUNTABILITY CENTER; STACEY STITT; MARIA
DIAZ; ROBERT GUNDRUM; MISTY TAYLOR; SERVICE EMPLOYEES
INTERNATIONAL UNION; DEMOCRACY NORTH CAROLINA; UNC CENTER
FOR CIVIL RIGHTS; PEARLEIN REVELS; LOUISE MITCHELL; ERIC
LOCKLEAR; ANITA HAMMONDS BLANKS,
Amici Supporting Appellant,
JUDICIAL WATCH, INCORPORATED; ALLIED EDUCATIONAL FOUNDATION;
THOM TILLIS; LINDSEY GRAHAM; TED CRUZ; MIKE LEE; JUDICIAL
EDUCATION PROJECT; LAWYERS DEMOCRACY FUND; MOUNTAIN STATES
LEGAL FOUNDATION; AMERICAN CIVIL RIGHTS UNION; STATE OF
INDIANA; STATE OF ALABAMA; STATE OF ARIZONA; STATE OF
ARKANSAS; STATE OF GEORGIA; STATE OF KANSAS; STATE OF
MICHIGAN; STATE OF NORTH DAKOTA; STATE OF OHIO; STATE OF
OKLAHOMA; STATE OF SOUTH CAROLINA; STATE OF TEXAS; STATE OF
WEST VIRGINIA; STATE OF WISCONSIN; PACIFIC LEGAL FOUNDATION;
CENTER FOR EQUAL OPPORTUNITY; PROJECT 21,
Amici Supporting Appellees.
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Appeals from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge.
(1:13-cv-00658-TDS-JEP; 1:13-cv-00660-TDS-JEP;
1:13-cv-00861-TDS-JEP)
Argued:
Decided:
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DIANA GRIBBON MOTZ, Circuit Judge, writing for the court except
as to Part V.B.:
These consolidated cases challenge provisions of a recently
enacted
North
Carolina
election
law.
The
district
court
in
this
findings.
We
thoroughness.
for
many
facts.
case,
the
court
appreciate
and
issued
commend
extensive
the
court
factual
on
its
of
its
findings;
indeed,
many
rest
on
uncontested
district
court
legislature
fundamentally
did
not
enact
erred.
the
In
challenged
holding
that
provisions
the
with
carefully
surveying
the
many
trees.
This
failure
of
in
many
areas
of
North
Carolina
is
racially
Thornburg v.
In
Gingles and other cases brought under the Voting Rights Act, the
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for
them.
mechanisms
and
Americans
will
In
North
procedures
Carolina,
that
predictably
most
redound
restriction
heavily
to
the
of
voting
affect
African
benefit
of
one
As the
2013
African
American
registration
and
turnout
rates
had
African
electoral force.
Americans
were
poised
to
act
as
major
obligations,
leader
of
the
party
that
newly
Before enacting
registration
in
five
different
ways,
10
all
of
which
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In
response
discrimination
meager
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to
animated
claims
its
justifications.
African
Americans
Pg: 11 of 83
that
action,
Although
with
the
the
almost
intentional
State
new
racial
offered
provisions
surgical
only
target
precision,
they
American
(2006),
the
Citizens
State
took
Perry
away
(LULAC),
[minority
548
U.S.
voters]
399,
440
opportunity
As in LULAC, [t]his
Id.
Faced with this record, we can only conclude that the North
Carolina General Assembly enacted the challenged provisions of
the law with discriminatory intent.
I.
The
Voting
Rights
Act
of
1965
employed
Ct.
at
Amendments
2618.
to
discrimination
the
in
Although
United
the
the
States
11
Fourteenth
Constitution
regulation
of
extraordinary
and
Fifteenth
prohibit
racial
elections,
state
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See id. at
minority
substantially
right
to
voting
moved
vote
to
from
more
power
direct,
as
jurisdictions
over[t]
impediments
sophisticated
devices
have
to
the
(alteration
in
Congress
identified
particular
had
literacy
turnout.
maintained
tests,
jurisdictions
and
suspect
had
less
Id. at 2619-20.
prerequisites
than
50%
voter
to
voting,
like
registration
or
As a
12
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the
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procedures
or
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qualifications
for
voting
statewide
or
in
42 U.S.C. 1973c).
During
the
period
in
which
North
Carolina
jurisdictions
when the law provided for the voting mechanisms at issue here
and
did
not
registration
require
swelled
by
photo
ID,
51.1%.
African
J.A.
804 1
American
(compared
voter
to
an
J.A. 1196-97.
in
late
June
coverage
2013,
the
Supreme
Court
issued
its
formula,
finding
it
based
on
outdated
Consequently, as of
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single-issue
bill
into
omnibus
legislation,
enacting
it
as
to
show
certain
photo
IDs,
beginning
in
2016,
which
registration
and
voting
access
tools
that
African
Id. at *136-38.
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Id.
J.A. 2114-15.
After
As amended, the
bill retained only the kinds of IDs that white North Carolinians
were more likely to possess.
legislators
also
requested
data
as
to
Id. at *136-37.
the
racial
Early voting
Id. at *4-5.
vote
for
those
who
difficulty
getting
to
their
polling
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and
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49.39%
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of
whites).
In
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particular,
African
Americans
Id.
eliminated
African
at
one
*15,
of
American
*136.
two
As
result,
souls-to-the-polls
churches
provided
SL
2013-381
Sundays
transportation
in
to
also
which
voters.
Id. at *55.
The
district
court
found
that
legislators
similarly
at
*137.
Prior
to
SL
2013-381,
same-day
registration
in
the
incomplete
registration
attempting to register.
provided
an
easy
Id. at *65.
avenue
to
queue
after
previously
re-register
for
those
who
moved
legislatures
racial
See id.
data
demonstrated
that,
as
the
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African
Id. at *61.
American
disproportionate
queue.
registration
percentage
Id. at *65.
of
applications
the
constituted
incomplete
registration
are more likely to move between counties, and thus are more
likely to need to re-register.
Id.
would
disproportionately
benefit
African
additionally
requested
Americans.
Id. at *15.
racial
breakdown
of
Id. at
Id. at *5-6.
Id.
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found
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that
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of
those
registered
Pg: 18 of 83
voters
who
happened
to
vote
disproportionately
Id. at *138.
high
percentage
African
American.
Americans
preregistration.
17-year-olds,
mandatory
were
also
Id. at *69.
when
high
Id. at *15.
used
obtaining
school
disproportionately
drivers
registration
licenses
or
attending
drives,
to
identify
Id.
at
*7.
Although
preregistration
increased
district
court
found
or
restrict
that
these
not
only
voting
did
SL
2013-381
mechanisms
used
Americans
disproportionately
lacked,
but
also
that
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Id. at
Carolina,
move,
African
be
Americans
poor,
less
are
disproportionately
educated,
have
less
likely
access
to
to
Id. at *89.
Id. at *9-13.
was of the same political party as the party that controlled the
General Assembly, promptly signed the bill into law on August
12, 2013.
That
Id. at *13.
along
with
Id.
at *16.
voting
same
day,
the
League
of
Women
Voters,
precinct
elimination
voting
were
of
same-day
motivated
by
registration
discriminatory
and
out-of-
intent
in
provisions
burdened
the
right
to
vote
generally,
in
See id.
Id.
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Id.
Id.
of
the
2014
midterm
general
Id.
election,
Plaintiffs
case
Id.
at 383.
with
instructions
to
issue
an
order
staying
the
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on certiorari.
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of
N.C.,
135
S.Ct.
1735
(2015)
(mem.).
This
denial
registration
and
out-of-precinct
voting
pending
the
However, on
June 18, 2015, the General Assembly ratified House Bill 836,
enacted as Session Law (SL) 2015-103.
This
acceptable
completed
impediment
ID
to
stating
acquiring
acceptable
to
court
Beginning
in
challenges
requirement.
to
declaration
impediment exception).
district
cast
all
Id.
2015,
of
In
that
Id. at *13.
bifurcated
July
provisional
trial
the
the
of
court
photo
had
ID
if
he
reasonable
(the
reasonable
case.
conducted
provisions
January
he
ballot
2016,
except
the
Id.
a
at
trial
the
court
on
*18.
the
photo
conducted
ID
a
21
Id.
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On
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April
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25,
2016,
the
Pg: 22 of 83
district
court
entered
judgment
provisions.
Id.
at
*171.
The
court
found
no
See id. at
Id. at *167.
The photo
of
same-day
preregistration,
registration,
alleging
out-of-precinct
discrimination
against
voting,
African
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regarding
Hispanics,
Americans.
381
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confine
our
analysis
to
African
were
enacted
violation
we
Pg: 23 of 83
of
the
with
Equal
racially
Protection
discriminatory
intent
Clause
Fourteenth
of
the
in
II.
A.
An appellate court can reverse a district courts factual
findings
only
if
clearly
erroneous.
United
States
v.
U.S.
Hunt
v.
Cromartie
(Cromartie
I),
526
U.S.
541,
549
entire record leaves the appellate court with the definite and
firm conviction that the [d]istrict [c]ourts key findings are
mistaken.
243
(citation
(2001)
and
internal
quotation
marks
omitted).
documents
and
expert
testimony
23
Id.
and
[c]redibility
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issue
of
discriminatory
purpose,
then
an
appellate
Pullman-
remanding,
racial
intent
redistricting
(1985)
three-judge
predominated
plan);
(affirming
Hunter
Court
of
courts
in
v.
factual
creation
Underwood,
Appeals
471
reversal
finding
of
U.S.
that
challenged
222,
without
229
remand
Village
Development
of
Corp.,
Arlington
Heights
429
252
U.S.
v.
Metropolitan
(1977),
the
Supreme
Housing
Court
that a facially neutral law, like the one at issue here, can be
motivated by invidious racial discrimination.
Id. at 264-66.
just
as
unconstitutional,
24
as
laws
that
expressly
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neutral
law,
court
must
undertake
sensitive
may
be
available.
Arlington
Heights,
429
U.S.
at
266.
did
the legislature enact a law because of, and not in spite of,
its discriminatory effect.
decision;
the
[d]epartures
legislative
history
from
of
the
normal
procedural
decision;
and
of
it
bears
more
heavily
on
one
race
than
another.
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In
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instructing
courts
Pg: 26 of 83
to
consider
the
broader
context
infrequent
evidence.
such
as
and
plaintiffs
often
must
the
one
here,
where
the
rely
upon
other
plaintiffs
allege
that
the
H.R.
neutral,
may
nonetheless
(Ginsburg,
J.,
dissenting)
be
motivated
by
(cataloguing
ways
in
which
racial
substantial
or
discrimination
motivating
is
shown
factor
behind
to
have
enactment
been
of
a
the
the
law
would
have
been
enacted
without
this
factor.
Arlington Heights,
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accorded
to
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legislators
Pg: 27 of 83
when
balancing
numerous
Id.
competing
Instead, courts
429 U.S. 274, 287 (1977); cf. Miss. Univ. for Women v. Hogan,
458 U.S. 718, 728 (1982) (describing inquiry into the actual
purposes underlying a statutory scheme that classified based on
gender (emphasis added) (internal quotation marks omitted)).
If
law.
See,
e.g.,
Hunter,
471
U.S.
at
231;
Anderson
v.
is
whether
voting
is
racially
polarized.
Indeed,
to
refers
to
the
situation
where
concept
incorporates
neither
Racial
different
Id. at 62.
causation
nor
races
This
intent
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that
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difference
discriminatory
--
laws
that
to
Pg: 28 of 83
results
have
their
in
the
intended
opportunity
political
for
effect.
Id. at 62-63.
While the Supreme Court has expressed hope that racially
polarized voting is waning, it has at the same time recognized
that racial discrimination and racially polarized voting are
not ancient history.
(2009).
following
country
President
formerly
increase
in
Obamas
subject
racially
to
election
in
2008,
preclearance
polarized
areas
have
voting.
See
of
seen
the
an
Stephen
in
Racial
Polarization
in
the
2012
Presidential
of
polarized
racial
Id.
voting
is
not,
in
and
of
itself,
discrimination.
But
it
does
provide
an
In
reauthorizing
the
Voting
Rights
Act
in
2006,
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environments
great.
take
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characterized
by
Pg: 29 of 83
racially
many
challenges
forms.
centered
One
on
common
vote
polarized
voting
is
way
it
dilution,
has
where
surfaced
is
in
manipulation
of
548
U.S. at 427.
provided
impetus
the
for
the
discriminatory
vote
dilution
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Id.
at 440.
The LULAC Court addressed a claim of vote dilution, but its
recognition
that
politicians
to
election
laws
context.
racially
polarized
entrench
applies
voting
themselves
with
equal
through
force
in
may
motivate
discriminatory
the
vote
denial
cases like that at hand, where the State has restricted access
to the franchise.
See
an
election.
But
intentionally
targeting
particular
party,
in
discriminatory purpose.
predictable
manner,
constitutes
legislature
acting
on
such
30
motivation
engages
A
in
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III.
With these principles in mind, we turn to their application
in the case at hand.
A.
Arlington Heights directs us to consider [t]he historical
background
of
discriminatory.
the
429
decision
U.S.
at
challenged
267.
as
Examination
racially
of
North
these facts.
Unquestionably, North Carolina has a long history of race
discrimination
particular.
generally
Although
we
and
race-based
recognize
its
vote
suppression
limited
weight,
in
see
For
[i]t was in the South that slavery was upheld by law until
uprooted by the Civil War, that the reign of Jim Crow denied
AfricanAmericans the most basic freedoms, and that state and
31
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Id. at 2628.
and
because
the
legislation
came
into
Due to this
being
literally
Failure to so
where
it
left
off
in
1965
to
considering
Plaintiffs
the
detriment
of
African
results
claim
Conf.,
2016
WL
1650774,
at
*83-86.
But
the
N.C.
court
Plaintiffs
discriminatory
intent
claim.
Rather,
when
dismissing
discrimination.
examples
of
more
recent
official
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reveal[ing]
invidious purposes.
series
of
official
actions
taken
for
In
evidence,
about
discriminatory
A historical
pattern
of
important
of
course,
laws
producing
context
for
proves
less
The
discriminatory
determining
results
whether
provides
the
same
Cir.
relevant,
in
law,
letters
DOJ
July
intentional
and
20,
2016)
(en
discrimination
previous
court
banc)
(considering
analysis
cases
about
of
voter
results
as
ID
and
intent).
The record reveals that, within the time period that the
district court found free of official discrimination (1980 to
2013), the Department of Justice issued over fifty objection
letters to proposed election law changes in North Carolina -33
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https://www.justice.gov/crt/voting-determination-letters-
laws
originated
that
either
in
the
General
Assembly
or
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During the same period, private plaintiffs brought fiftyfive successful cases under 2 of the Voting Rights Act.
J.A.
Ten
Cty.,
preliminary
594
F.
Supp.
injunction).
161
(E.D.N.C.
Forty-five
1984)
cases
(granting
were
settled
No.
5:87-cv-00353
(E.D.N.C.
1989);
United
States
v.
of
course,
the
case
in
which
the
Supreme
Court
Gingles
--
was
brought
by
35
class
of
African
American
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478
U.S.
at
35.
There
the
Supreme
Court
affirmed
official
discrimination
in
voting
matters,
education,
African
American
political process.
voters
to
participate
equally
in
the
Id. at 80.
And only a few months ago (just weeks before the district
court issued its opinion in the case at hand), a three-judge
court addressed a redistricting plan adopted by the same General
Assembly that enacted SL 2013-381.
in
two
drawing
congressional
districts,
in
violation
of
the
Contrary to
at
impermissibly
*143
relied
n.223,
holding
on
race
that
certainly
legislature
provides
relevant
36
Appeal: 16-1468
Doc: 150
Filed: 07/29/2016
Pg: 37 of 83
efforts
to
restrict
or
dilute
African
American
voting
Only the
of
the
succeeding.
Voting
Rights
Act
prevented
those
efforts
from
This fact
evidence
here.
The
district
court
failed
to
But
court
again
recognized
this
reality
when
analyzing
In
Id. at *86.
one
North
of
the
States
African-American
race
experts
is
conceded,
better
37
in
predictor
As
Carolina,
for
voting
Appeal: 16-1468
Doc: 150
Filed: 07/29/2016
Pg: 38 of 83
J.A. 21400.
For example,
N.C.
In comparison, in those
Id.
certainly
likely,
and
knew
that
that
African
white
voters
American
were
voters
unlikely,
were
to
highly
vote
for
Democrats.
had
registering
begun
and
voting
in
unprecedented
numbers.
as entirely appropriate.
relatively
recently,
almost
entirely
along
party
was
similarly
ratified
38
along
party
lines
after
Appeal: 16-1468
Doc: 150
Filed: 07/29/2016
Pg: 39 of 83
Id. at *2-7,
*12.
Thus, the district court apparently considered SL 2013-381
simply
success
an
appropriate
by
another
means
party.
for
We
one
party
recognize
to
that
counter
recent
elections
have
When a
politics
as
usual
does
not
allow
legislature
locations
of
early
voting
centers.
J.A.
22348.
As
State
offered
purported
inconsistencies
in
voting
hours
across counties, including the fact that only some counties had
decided to offer Sunday voting.
Id.
in
2014
were
disproportionately
disproportionately Democratic.
J.A. 22348-49.
black
and
In response,
SL 2013-381 did away with one of the two days of Sunday voting.
39
Appeal: 16-1468
Doc: 150
Filed: 07/29/2016
Pg: 40 of 83
Thus, in what
African
Americans,
who
had
overwhelmingly
voted
for
contextual
undercurrents
facts,
influencing
which
North
reveal
Carolina
the
politics,
powerful
must
be
Indeed,
the
laws
purpose
cannot
be
properly
Rather,
the
immediate
aftermath
of
participation
in
General
Assembly
unprecedented
state
with
enacted
African
troubled
them
American
racial
in
the
voter
history
and
Appeal: 16-1468
Doc: 150
Filed: 07/29/2016
Pg: 41 of 83
B.
Arlington
specific
Heights
sequence
decision.
of
also
instructs
events
leading
us
up
to
to
consider
the
the
challenged
Id.
that,
Id.
immediately
Shelby
County,
Indeed,
The record
the
General
the
legislative
process
the
most
restrictive
voting
draw
the
obvious
Id.
inference
that
this
sequence
that
prior
of
events
district
court
found
to
Shelby
County,
As the
Id. at *8.
For this
[f]ive
Appeal: 16-1468
Doc: 150
Filed: 07/29/2016
Pg: 42 of 83
Id.
Id.
Id.
For the next two months, no public debates were had, no public
amendments made, and no action taken on the bill.
Then,
on
June
25,
of
the
Senate
2013,
the
Supreme
Id. at *9.
Rules
Court
issued
its
Committee
proclaimed
that
the
legislature would now move ahead with the full bill, which he
recognized would be omnibus legislation.
Id. at *9.
After
Id.
Id. at
*144.
The new bill -- now fifty-seven pages in length -- targeted
four voting and registration mechanisms, which had previously
expanded
access
to
the
franchise,
County,
the
and
provided
much
more
change
42
in
accepted
photo
IDs
is
of
Appeal: 16-1468
Doc: 150
particular note:
Filed: 07/29/2016
Pg: 43 of 83
Id. at *142.
the
legislative
process.
The
new
SL
2013-381
moved
public hearing, two days in the Senate, and two hours in the
House.
Id. at *9-12.
on
concurrence
in
the
Senates
Id. at *12.
version,
Id. at *12.
The House
rather
than
Appeal: 16-1468
Doc: 150
suggests
an
Filed: 07/29/2016
attempt
to
avoid
Pg: 44 of 83
in-depth
scrutiny.
See,
e.g.,
legislature
--
nor,
as
far
as
we
can
Indeed, neither
tell,
any
other
the
court
acknowledging
court
focused
the
on
whole
specifically
certain
picture.
found
the
minor
For
facts
example,
above
facts,
To do
instead
of
although
it
the
dismissed
[of
its]
procedural
rules.
N.C.
State
Conf.,
2016
WL
1650774, at *145.
its
engage
own
rules
to
in
unusual
procedures.
Even
just
the
district
court
accused
Plaintiffs
of
bill
received
in
the
spring.
Id.
at
*146.
But
because the pre-Shelby County bill did not contain any of the
provisions challenged here, that debate hardly seems probative.
The district court also quoted one senator who opposed the new
44
Appeal: 16-1468
full
Doc: 150
bill
Filed: 07/29/2016
as
saying
thorough debate.
that
Pg: 45 of 83
the
legislators
had
good
and
*12
(citations
omitted).
Republican
senators
Id.
strongly
denied such claims, while at the same time linking the bill to
partisan goals:
Id.
found
that
the
General
Assembly
would
not
have
The
been
avoid
the
hassle
of
the
Id. at *144.
preclearance
Although desire
process
could,
in
For
here, the General Assembly did not simply wait to enact changes
to
its
election
laws
that
might
require
the
administrative
Rather, after
Appeal: 16-1468
Doc: 150
Filed: 07/29/2016
Pg: 46 of 83
from
the
list
the
IDs
held
disproportionately
by
to,
issuance,
rush
at
the
through
historic
the
moment
of
legislative
Shelby
process
Countys
the
most
restrictive voting law North Carolina has seen since the era of
Jim Crow -- bespeaks a certain purpose.
Heights
leading
to
also
recognizes
challenged
that
provision
the
may
legislative
be
highly
Appeal: 16-1468
Doc: 150
or reports.
Filed: 07/29/2016
Pg: 47 of 83
And, as
legislation
[legislative] privilege.
frequently
Id.
will
be
barred
by
See N.C.
Appeal: 16-1468
Doc: 150
We
do
Filed: 07/29/2016
find
worthy
of
Pg: 48 of 83
discussion,
however,
the
General
and
precinct voting).
provisional
voting
(which
includes
out-of-
data
revealed
that
African
Americans
3084-3119.
Not
only
that,
it
also
revealed
that
African
these
other
forms
access
to
the
franchise,
but
In sum,
relying
enacted
on
legislation
this
racial
restricting
data,
all
the
--
General
and
only
the
unpersuasive
non-racial
Assembly
--
practices
When juxtaposed
explanations
the
State
48
Appeal: 16-1468
Doc: 150
Filed: 07/29/2016
Pg: 49 of 83
Arlington
Heights
instructs
that
courts
also
(internal
quotation
marks
omitted).
The
429 U.S. at
district
court
Nevertheless,
disproportionate[]
use[]
the
court
did
not
court
clearly
erred.
concluded
that
significantly
Id. at *143.
Apparently,
the
this
favor
In doing so,
district
court
on
the
legislation.
options
Id. at *136.
remaining
after
enactment
of
the
of the kind.
The Arlington Heights Court recognized that [t]he impact
of
[a
governmental]
decision
not
to
rezone
for
low-income
269.
In
concluding
that
the
zoning
decision
429 U.S.
had
Appeal: 16-1468
Doc: 150
Filed: 07/29/2016
Pg: 50 of 83
Instead, it
impact,
even
though
the
extent
of
the
the
required
standard
too
much
discrimination claim.
motivated
by
the
district
in
the
court
context
used
of
an
discriminatory
242.
measure
intentional
proof
of
disproportionate
to
Rather,
plaintiffs
asserting
such
Davis, 426
claims
must
to
impact,
establish
even
one
of
if
the
Id. at 239-42.
not
Showing
overwhelming
circumstances
impact,
evidencing
discriminatory intent. 8
Appeal: 16-1468
Doc: 150
Filed: 07/29/2016
Accordingly,
Americans
the
district
disproportionately
Pg: 51 of 83
courts
used
findings
each
of
that
African
the
removed
by
SL
2013-381,
if
supported
by
the
evidence,
analysis.
As
outlined
above,
the
record
evidence
See
(A
when
effect
competition.).
panoply
considered
of
of
alone,
severely
For
regulations,
may
the
apparently
nevertheless
restricting
example,
each
have
the
participation
and
photo
ID
requirement
Appeal: 16-1468
Doc: 150
Filed: 07/29/2016
on Election Day. 9
polls
on
Pg: 52 of 83
Election
Day,
and
absent
out-of-precinct
voting,
unable
to
cumulatively,
travel
the
to
panoply
disenfranchisement
their
of
correct
restrictions
than
any
of
court
discounted
the
precincts.
results
laws
Thus,
in
greater
provisions
individually.
The
district
provisions
burden
African
the
Americans,
claim
citing
the
that
fact
these
that
ID),
registration),
(preregistration).
*46
*66
(early
voting),
(out-of-precinct
But
the
sheer
number
*57
(same-day
voting),
of
*69
restrictive
Appeal: 16-1468
Doc: 150
Filed: 07/29/2016
Pg: 53 of 83
U.S.
at
223
disenfranchisement
(challenging
law);
only
Veasey,
felon
2016
WL
and
misdemeanant
3923868,
at
*1
Moreover, removing
Emblematic of this
Appeal: 16-1468
Doc: 150
Filed: 07/29/2016
Pg: 54 of 83
See
are
more
probative
election,
particularly
one
than
held
the
during
result
of
pending
single
litigation).
As the States
with
greater
economic
resources.
J.A.
23801-02;
cf.
J.,
dissenting)
(noting
that
midterm
primary
by
uncounted.
although
1.8%
As
in
the
disproportionately
aggregate
2014,
many
district
cast
African
African
court
provisional
American
American
found,
out-of-precinct
were
would
disenfranchised
have
been
the
went
Americans
ballots,
See N.C.
because
same-day
votes
African
turnout
they
registered
registration
during
period
but
increase
in
voting
actually
54
represents
significant
Appeal: 16-1468
Doc: 150
Filed: 07/29/2016
Pg: 55 of 83
J.A. 1197.
The court
But
move,
be
poor,
less
educated,
have
socioeconomic
led
disparities
African
Americans
less
to
Id. at *89.
establish
to
access
that
no
mere
disproportionately
use
disparities
it
Carolina experienced.
found
many
African
Americans
in
North
55
Appeal: 16-1468
Doc: 150
Filed: 07/29/2016
Pg: 56 of 83
E.
In
sum,
assessment
of
the
Arlington
Heights
factors
intent
motivated
provisions in SL 2013-381.
holding otherwise.
the
enactment
of
the
challenged
than
engaging
in
the
totality
can
seem
innocuous
when
of
the
circumstances
viewed
alone,
but
gains
an
-the
North
surge
Carolinas
in
African
history
American
of
voting
voting;
the
Even if
Appeal: 16-1468
Doc: 150
Filed: 07/29/2016
Pg: 57 of 83
IV.
Because Plaintiffs have established race as a factor that
motivated enactment of the challenged provisions of SL 2013-381,
the burden now shifts to the laws defenders to demonstrate
that
the
law
would
have
been
enacted
without
this
factor.
Once
the
burden
shifts,
court
must
carefully
alone
can
explain
enactment
of
the
legislatures
justified.
A
challenged
law.
[J]udicial deference
justifications
is
no
longer
been
enacted
Id.
court
without
stated
the
assesses
racially
whether
law
discriminatory
would
motive
have
by
considering
the
were
sufficiently
strong
10
to
cancel
out
any
Appeal: 16-1468
Doc: 150
Filed: 07/29/2016
Pg: 58 of 83
this
case,
despite
finding
that
race
was
not
2013-381,
the
district
court
addressed
the
States
rational-basis-like
lens.
General
decision
Assemblys
the
For
to
example,
the
eliminate
court
same-day
legislative
are
plausible
and
not
As the
Appeal: 16-1468
Doc: 150
Filed: 07/29/2016
wholly inappropriate.
(explaining
that
Pg: 59 of 83
because
racial
discrimination
is
not
just
action
would
add
anything
essential
to
the
25,000
pages
WL 1650774, at *2.
of
evidence.
N.C.
State
Conf.,
2016
foundational
findings
as
to
justifications
for
SL
Appeal: 16-1468
Doc: 150
that law.
Filed: 07/29/2016
Pg: 60 of 83
381.
the
These
interests
echo
those
Crawford
The
reliance
State
is
relies
misplaced
heavily
because
of
on
that
the
Court
held
holding.
fundamental
But
that
differences
Crawford,
Given
Appeal: 16-1468
that
Doc: 150
limited
burden,
legislatures
interests.
Filed: 07/29/2016
choice
the
of
Pg: 61 of 83
Court
how
to
deferred
best
to
serve
the
its
Indiana
legitimate
SL
2013-381s
photo
ID
requirement
if
it
had
no
The record
620,
U.S.
633
(1996);
see
Anderson,
460
at
805
(rejecting
First, the
On the
one
single
hand,
the
State
has
failed
to
identify
even
On the other,
absentee
voter
fraud.
J.A.
61
1678,
6802.
Notably,
the
Appeal: 16-1468
Doc: 150
legislature
Filed: 07/29/2016
also
had
disproportionately
evidence
used
by
Pg: 62 of 83
that
African
absentee
voting
Americans;
was
indeed,
not
whites
J.A. 1796-97.
The
require
photo
ID
for
absentee
voting,
N.C.
Gen.
Assemb.
Proposed Amend. No. A2, H589-AST-50 [v.2] (April 24, 2013), and
the bipartisan State Board of Elections 11 specifically requested
that
the
General
Assembly
remedy
the
potential
for
mail-in
photo
ID
requirement
irrational
combating fraud.
is
restrictions
also
too
unrelated
broad,
to
the
enacting
goal
of
of
Americans.
state-issued
ID
disproportionately
held
by
African
The
Appeal: 16-1468
Doc: 150
Filed: 07/29/2016
Pg: 63 of 83
voters
who
lack
qualifying
ID
under
This is so
SL 2013-381
may
apply for a free voter card using two of the very same forms of
ID excluded by the law.
at *26.
creating
hoops
through
which
certain
citizens
must
inconsistencies
among
counties
put
some
consistency
into
the
locations
in
the
12
and
See, e.g.,
process
and
allow
for
the
Appeal: 16-1468
Doc: 150
Filed: 07/29/2016
Pg: 64 of 83
to
eliminate
inconsistencies
between
counties
in
the
Rather,
the
Boards
discretion,
whether
to
provide
Sunday
hours
(A
county
board
may
conduct
[early
voting]
discussed
above,
the
State
explicitly
and
during
Moreover,
problematically
J.A. 22348-49.
Appeal: 16-1468
offer
Doc: 150
at
Filed: 07/29/2016
least
the
same
Pg: 65 of 83
number
of
aggregate
hours
of
early
See
county
lines,
inconsistencies
by
SL
2013-381
requiring
those
in
effect
same
codifies
those
county-specific
hours
in
of
its
early
quest
for
voting,
the
consistency
General
in
Assembly
the
again
early
turnout
mean
voting
might
elections,
that
North
accommodated.
ease
doing
administrative
so
for
Carolina
J.A. 1700.
burdens
high-turnout
voters
needs
for
lower
elections
would
will
not
be
65
Appeal: 16-1468
Doc: 150
Filed: 07/29/2016
Pg: 66 of 83
as
means
to
avoid
administrative
burdens
that
so,
the
complete
elimination
of
same-day
registration
objectives.
alternative
The
proposals
that
General
would
Assembly
have
remedied
State
Board
registration
of
Elections
success.
was
had
had
before
the
it
problem
J.A.
that
1529.
same-day
The
Board
J.A.
were
registration,
6826,
not
J.A.
and
caused
that
by
6827.
undeliverable
the
Indeed,
nature
over
verification
of
97%
same
of
day
same-day
J.A. 6826.
J.A. 6826-28.
Appeal: 16-1468
Doc: 150
Filed: 07/29/2016
Pg: 67 of 83
In other
of
mechanisms
SL 2013-381s
multiple
disproportionately
used
restrictions
by
African
on
voting
Americans,
we
registration
entirely
but-for
its
disproportionate
J.A. 3307.
Recognizing the
voting
elections
in
to
a
permit[]
timely
and
election
efficient
officials
manner.
to
J.A.
States
recited
justification
was
the
actual
purpose
Appeal: 16-1468
Doc: 150
Finally,
Filed: 07/29/2016
the
Pg: 68 of 83
General
Assemblys
elimination
of
Assembly
solution.
contrived
problem
in
order
to
impose
J.A. 3317. 13
But, as
the district court itself noted, that explanation does not hold
water.
The
court
found
that
pre-registrations
removal
[]
N.C.
sum,
the
array
of
electoral
reforms
the
General
The only
Appeal: 16-1468
Doc: 150
Filed: 07/29/2016
Pg: 69 of 83
the
ways
African
Americans
vote
Identifying and
was
an
easy
and
and
statutory
prohibitions
on
intentional
discrimination.
V.
As relief in this case, Plaintiffs ask that we declare the
challenged
violative
provisions
of
of
in
SL
the
2013-381
Voting
unconstitutional
Rights
Act,
and
that
and
we
We address each
in turn.
A.
When
discriminatory
intent
impermissibly
motivates
the
If a court finds
Appeal: 16-1468
only
Doc: 150
part
of
Filed: 07/29/2016
the
law
Pg: 70 of 83
unconstitutional,
it
may
sever
the
Id.
State
In North Carolina,
on
others
that
they
cannot
be
enforced
without
As an
remainder
challenged
of
the
law
provisions.
can[]
Fulton
be
enforced
Corp.,
481
Further,
without
S.E.2d
at
the
9.
regarding
photo
ID,
early
voting,
same-day
70
registration,
Appeal: 16-1468
Doc: 150
Filed: 07/29/2016
Pg: 71 of 83
Circuit
Judge,
joins,
B.
As to the appropriate remedy for the challenged provisions,
once
plaintiff
constitutional
or
has
established
statutory
right
in
the
the
violation
civil
of
rights
area,
Smith v.
Town of Clarkton, 682 F.2d 1055, 1068 (4th Cir. 1982); see Green
v. Cty. Sch. Bd., 391 U.S. 430, 43739 (1968) (explaining that
once
court
rules
that
an
official
act
purposefully
and
branch).
In
other
words,
courts
are
tasked
with
Supreme
Court
has
established
that
official
actions
proper
discriminatory
remedy
intent
for
is
legal
provision
invalidation.
71
See
enacted
id.
at
City
Thus,
with
37879
Appeal: 16-1468
Doc: 150
Filed: 07/29/2016
Pg: 72 of 83
credentials
whatsoever;
for
[a]cts
generally
lawful
may
163-182.1B,
163-227.2).
72
Our
dissenting
colleague
Appeal: 16-1468
Doc: 150
Filed: 07/29/2016
contends
that
even
though
Assembly
unconstitutionally
we
Pg: 73 of 83
all
enacted
agree
that
1)
the
photo
the
ID
General
requirement
prior
consider
law,
we
whether
should
the
remand
reasonable
for
the
district
impediment
court
exception
to
has
But,
challenged
provisions
were
motivated
by
an
impermissible
We
cannot discern any basis upon which this record reflects that
the reasonable impediment exception amendment fully cures the
harm
from
the
photo
ID
provision.
Thus,
remand
is
not
necessary.
While remedies short of invalidation may be appropriate if
a provision violates the Voting Rights Act only because of its
discriminatory
effect,
laws
passed
with
discriminatory
intent
Appeal: 16-1468
and
Doc: 150
the
Filed: 07/29/2016
more
flexible
range
Pg: 74 of 83
of
remedies
that
should
be
the
amendment
does
requirement.
not
creating
invalidate
the
or
reasonable
repeal
impediment
the
photo
ID
518
U.S.
at
547
(noting
that
the
defendant
See
was
relate[d]
to
the
violation
(alterations
in
original)
American
voters.
To
the
contrary,
the
record
that
was
originally
enacted
with
discriminatory
intent.
74
Appeal: 16-1468
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Filed: 07/29/2016
Pg: 75 of 83
to
process.
lack
--
the
voter
must
undertake
multi-step
First, the
the
must
present
one
of
In
several
alternative
Id. 163-
166.15(c).
voter
Id. 163-182.1B.
that
the
reasonable
impediment
14
exception
amendment
While
declaring
that
a
reasonable
impediment
prevent[ed] her from obtaining an acceptable photo ID, the
voter must heed the forms warning that fraudulently or falsely
completing this form is a Class I felony under North Carolina
law. J.A. 10368.
75
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completely cures the harm in this case, nor could it given the
requirements of the reasonable impediment exception as enacted
by the General Assembly.
imposed
by
the
impermissible
enactment
of
SL
2013-381,
we
1973a).
remedies
[are]
rarely
used
and
are
not
in
authority
such
under
way.
the
The
North
Constitution
Carolina
to
legislature
determine
the
has
times,
76
Appeal: 16-1468
Doc: 150
Filed: 07/29/2016
Pg: 77 of 83
minorities.
Our
holding,
and
the
injunction
Assembly
finds
that
we
issue
legitimate
justifications
counsel
***
It
is
beyond
fundamental
structure.
Party,
440
dispute
that
significance
voting
under
is
of
our
the
most
constitutional
173,
184
(1979).
For
[n]o
right
is
more
of
those
who
if
the
right
make
the
laws
under
which,
to
vote
is
undermined.
Wesberry
record
legislature
enacted
evidence
one
of
v.
good
ignore
as
that,
the
because
largest
of
We cannot
race,
restrictions
of
the
the
remand
the
case
for
entry
77
of
an
order
enjoining
the
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78
Appeal: 16-1468
Doc: 150
Filed: 07/29/2016
Pg: 79 of 83
The record,
and
Supreme
Court
precedent
as
to
In view of these
the
propriety
of
to
Milliken
cure
v.
the
condition
Bradley,
433
that
U.S.
offends
267,
282
the
Constitution.
(1977)
(internal
will
not
be
repeated,
court
will
properly
deny
an
Appeal: 16-1468
Grant,
Doc: 150
345
Filed: 07/29/2016
U.S.
894,
896-97
Pg: 80 of 83
(1953);
see
Kohl
by
Kohl
v.
Woodhaven Learning Ctr., 865 F.2d 930, 934 (8th Cir. 1989) (A
change
in
circumstances
injunction.).
destroy
the
need
for
an
unconstitutional
law
can
practice
unconstitutional
question
of
whether
City
Aladdins
the
an
on
of
court
Mesquite
bears
amendment
of
fundamentally
or
Castle,
Inc.,
455
U.S.
283,
288-89
(1982).
The remedy for an unconstitutional law must completely cure
the harm wrought by the prior law.
can have that effect.
See id.
Lines, Inc. v. United States, 368 U.S. 324, 331 (1961) ([S]ound
discretion
withholds
the
remedy
where
it
appears
that
sought,
undergoing
significant
modification
so
that
its
but
prior
to
its
implementation,
the
General
requirement.
See
2015
N.C.
80
Sess.
Laws
103
8.
The
Appeal: 16-1468
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Filed: 07/29/2016
Pg: 81 of 83
provisional
ballot
after
declaring
under
penalty
of
prevents
[him]
identification.
(internal
N.C.
quotation
from
State
marks
obtaining
Conf.,
2016
omitted).
No
acceptable
WL
1650774,
party
in
photo
at
this
*36
case
majority
maintains,
however,
that
the
reasonable
totally
requirement. 1
Perhaps not.
excuses
the
photo
ID
But on
the
reasonable
impediment
exception
cures
the
Appeal: 16-1468
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Filed: 07/29/2016
Pg: 82 of 83
as
amended
in
2015,
voters
enough
to
sustain
*122,
*156.
Of
course,
this
is
not
the
standard
Id.
that
an
unconstitutional
racially
discriminatory,
but
additional
information
now
exists
that
goes
in
March
2016
primary
election,
poll
workers
gave
Appeal: 16-1468
of
Doc: 150
Elections
Filed: 07/29/2016
were
inconsistent
reasonable impediment.
North
Carolina
in
Pg: 83 of 83
about
what
they
deemed
Support
of
Appellants
at
8-32,
N.C.
State
In response,
report
before
the
State
conducted
its
final
vote
count.
83