Filed: Oct. 01, 2014
Latest Update: Mar. 02, 2020
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-1845 LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA; A. PHILIP RANDOLPH INSTITUTE; UNIFOUR ONESTOP COLLABORATIVE; COMMON CAUSE NORTH CAROLINA; GOLDIE WELLS; KAY BRANDON; OCTAVIA RAINEY; SARA STOHLER; HUGH STOHLER, Plaintiffs, 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 – Appellants,
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-1845 LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA; A. PHILIP RANDOLPH INSTITUTE; UNIFOUR ONESTOP COLLABORATIVE; COMMON CAUSE NORTH CAROLINA; GOLDIE WELLS; KAY BRANDON; OCTAVIA RAINEY; SARA STOHLER; HUGH STOHLER, Plaintiffs, 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 – Appellants, v..
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-1845
LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA; A. PHILIP
RANDOLPH INSTITUTE; UNIFOUR ONESTOP COLLABORATIVE; COMMON
CAUSE NORTH CAROLINA; GOLDIE WELLS; KAY BRANDON; OCTAVIA
RAINEY; SARA STOHLER; HUGH STOHLER,
Plaintiffs,
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 – Appellants,
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.
-------------------------------------
UNITED STATES OF AMERICA,
Amicus Curiae,
BRENNAN CENTER FOR JUSTICE AT NYU SCHOOL OF LAW,
Amicus Supporting Appellants,
JUDICIAL WATCH, INCORPORATED; ALLIED EDUCATIONAL FOUNDATION;
CHRISTINA KELLEY GALLEGOS-MERRILL,
Amici Supporting Appellees.
No. 14-1856
NORTH CAROLINA STATE CONFERENCE OF BRANCHES OF THE NAACP;
ROSANELL EATON; EMMANUEL BAPTIST CHURCH; BETHEL A. BAPTIST
CHURCH; COVENANT PRESBYTERIAN CHURCH; CLINTON TABERNACLE AME
ZION CHURCH; BARBEE'S CHAPEL MISSIONARY BAPTIST CHURCH,
INC.; ARMENTA EATON; CAROLYN COLEMAN; JOCELYN FERGUSON-
KELLY; FAITH JACKSON; MARY PERRY; MARIA TERESA UNGER PALMER,
Plaintiffs – Appellants,
and
NEW OXLEY HILL BAPTIST CHURCH; BAHEEYAH MADANY; JOHN DOE 1;
JANE DOE 1; JOHN DOE 2; JANE DOE 2; JOHN DOE 3; JANE DOE 3,
Plaintiffs,
v.
PATRICK L. MCCRORY, in his official capacity as Governor of
the 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,
Defendants – Appellees.
2
------------------------------------
UNITED STATES OF AMERICA,
Amicus Curiae,
BRENNAN CENTER FOR JUSTICE AT NYU SCHOOL OF LAW,
Amicus Supporting Appellants,
JUDICIAL WATCH, INCORPORATED; ALLIED EDUCATIONAL FOUNDATION;
CHRISTINA KELLEY GALLEGOS-MERRILL,
Amici Supporting Appellees.
No. 14-1859
LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA; A. PHILIP RANDOLPH
INSTITUTE; UNIFOUR ONESTOP COLLABORATIVE; COMMON CAUSE NORTH
CAROLINA; GOLDIE WELLS; OCTAVIA RAINEY; HUGH STOHLER; KAY
BRANDON; SARA STOHLER,
Plaintiffs – Appellants,
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.
3
MCCRORY, in his official capacity as Governor of the state
of North Carolina,
Defendants – Appellees.
−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−-------
UNITED STATES OF AMERICA,
Amicus Curiae,
BRENNAN CENTER FOR JUSTICE AT NYU SCHOOL OF LAW,
Amicus Supporting Appellants,
JUDICIAL WATCH, INCORPORATED; ALLIED EDUCATIONAL FOUNDATION;
CHRISTINA KELLEY GALLEGOS-MERRILL,
Amici Supporting Appellees.
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-00861-TDS-JEP;
1:13-cv-00660-TDS-JEP)
Argued: September 25, 2014 Decided: October 1, 2014
Before MOTZ, WYNN, and FLOYD, Circuit Judges.
Reversed in part, affirmed in part, and remanded with
instructions by published opinion. Judge Wynn wrote the
majority opinion, in which Judge Floyd joined. Judge Motz wrote
a dissenting opinion.
ARGUED: Allison Jean Riggs, SOUTHERN COALITION FOR SOCIAL
JUSTICE, Durham, North Carolina; Penda Denise Hair, ADVANCEMENT
PROJECT, Washington, D.C.; Marc Erik Elias, PERKINS COIE LLP,
Washington, D.C., for Appellants. Alexander McClure Peters,
NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina;
Thomas A. Farr, OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C.,
Raleigh, North Carolina, for Appellees. Holly Aiyisha Thomas,
4
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Amicus United States of America. ON BRIEF: Anita S. Earls,
George E. Eppsteiner, SOUTHERN COALITION FOR SOCIAL JUSTICE,
Durham, North Carolina; Dale Ho, Julie A. Ebenstein, Sean Young,
New York, New York, Laughlin McDonald, ACLU VOTING RIGHTS
PROJECT, Atlanta, Georgia; Christopher Brook, ACLU OF NORTH
CAROLINA LEGAL FOUNDATION, Raleigh, North Carolina, for
Appellant League of Women Voters of North Carolina. Elisabeth
C. Frost, Washington, D.C., Joshua L. Kaul, PERKINS COIE LLP,
Madison, Wisconsin; Edwin M. Speas, Jr., John W. O’Hale,
Caroline P. Mackie, POYNER SPRUILL LLP, Raleigh, North Carolina,
for Appellant Louis M. Duke. Edward A. Hailes, Jr., Denise D.
Lieberman, Donita Judge, Caitlin Swain, ADVANCEMENT PROJECT,
Washington, D.C.; Irving Joyner, Cary, North Carolina; Adam
Stein, TIN FULTON WALKER & OWEN, PLLC, Chapel Hill, North
Carolina; Daniel T. Donovan, Susan M. Davies, Bridget K.
O’Connor, K. Winn Allen, Kim Knudson, Jodi Wu, KIRKLAND & ELLIS
LLP, Washington, D.C., for Appellant North Carolina State
Conference of Branches of the NAACP. Robert C. Stephens, OFFICE
OF THE GOVERNOR OF NORTH CAROLINA, Raleigh, North Carolina; Karl
S. Bowers, Jr., BOWERS LAW OFFICE LLC, Columbia, South Carolina,
for Appellee Governor Patrick L. McCrory. Katherine A. Murphy,
NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina;
Phillip J. Strach, Michael D. McKnight, OGLETREE, DEAKINS, NASH,
SMOAK & STEWART, P.C., Raleigh, North Carolina, for Appellees
State of North Carolina and North Carolina State Board of
Election. Molly J. Moran, Acting Assistant Attorney General,
Diana K. Flynn, Civil Rights Division, UNITED STATES DEPARTMENT
OF JUSTICE, Washington, D.C.; Ripley Rand, United States
Attorney, Greensboro, North Carolina, Gill P. Beck, Special
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Asheville, North Carolina, for Amicus United States of
America. Samuel Brooke, SOUTHERN POVERTY LAW CENTER,
Montgomery, Alabama; Michael C. Li, Jennifer L. Clark, Tomas
Lopez, THE BRENNAN CENTER FOR JUSTICE AT N.Y.U. SCHOOL OF LAW,
New York, New York, for Amicus The Brennan Center for Justice at
N.Y.U School of Law. Chris Fedeli, JUDICIAL WATCH, INC.,
Washington, D.C.; H. Christopher Coates, LAW OFFICE OF H.
CHRISTOPHER COATES, Charleston, South Carolina; Bradley J.
Schlozman, HINKLE LAW FIRM LLC, Wichita, Kansas; Gene B.
Johnson, JOHNSON LAW FIRM, P.A., Arden, North Carolina, for
Amici Judicial Watch, Incorporated, Allied Educational
Foundation, and Christina Kelley Gallegos-Merrill.
5
WYNN, Circuit Judge:
The right to vote is fundamental. “No right is more
precious in a free country than that of having a voice in the
election of those who make the laws under which, as good
citizens, we must live. Other rights, even the most basic, are
illusory if the right to vote is undermined.” Wesberry v.
Sanders, 376 U.S. 1, 17 (1964). And a tight timeframe before an
election does not diminish that right.
“In decision after decision, [the Supreme] Court has made
clear that a citizen has a constitutionally protected right to
participate in elections on an equal basis with other citizens
in the jurisdiction.” Dunn v. Blumstein, 405 U.S. 330, 336
(1972). Congress sought to further ensure equal access to the
ballot box by passing the Voting Rights Act, which was aimed at
preventing “an inequality in the opportunities enjoyed by black
and white voters to elect their preferred representatives.”
Thornburg v. Gingles,
478 U.S. 30, 47 (1986).
On June 25, 2013, the Supreme Court lifted certain Voting
Rights Act restrictions that had long prevented jurisdictions
like North Carolina from passing laws that would deny minorities
equal access. See Shelby Cnty., Ala. v. Holder, 133 S. Ct. 2612
(2013). The very next day, North Carolina began pursuing
sweeping voting reform—House Bill 589—which is at the heart of
this appeal.
6
With House Bill 589, North Carolina imposed strict voter
identification requirements, cut a week off of early voting,
prohibited local election boards from keeping the polls open on
the final Saturday afternoon before elections, eliminated same-
day voter registration, opened up precincts to “challengers,”
eliminated pre-registration of sixteen- and seventeen-year-olds
in high schools, and barred votes cast in the wrong precinct
from being counted at all.
In response, various Plaintiffs and the United States
Government sued North Carolina, alleging that House Bill 589
violates equal protection provisions of the United States
Constitution as well as the Voting Rights Act. Plaintiffs
sought to prevent House Bill 589 from taking effect by asking
the district court for a preliminary injunction. Such an
injunction would maintain the status quo to prevent irreparable
harm while the lawsuit plays itself out in the courts.
But the district court refused. In so doing, the district
court laid out what it believed to be the applicable law.
Notably, however, the district court got the law plainly wrong
in several crucial respects. When the applicable law is
properly understood and applied to the facts as the district
court portrayed them, it becomes clear that the district court
abused its discretion in denying Plaintiffs a preliminary
injunction and not preventing certain provisions of House Bill
7
589 from taking effect while the parties fight over the bill’s
legality. Accordingly, we reverse the district court’s denial
of the preliminary injunction as to House Bill 589’s elimination
of same-day registration and prohibition on counting out-of-
precinct ballots.
However, we affirm the district court’s denial of
Plaintiffs’ request for a preliminary injunction with respect to
the following House Bill 589 provisions: (i) the reduction of
early-voting days; (ii) the expansion of allowable voter
challengers; (iii) the elimination of the discretion of county
boards of elections to keep the polls open an additional hour on
Election Day in “extraordinary circumstances”; (iv) the
elimination of pre-registration of sixteen- and seventeen-year-
olds who will not be eighteen years old by the next general
election; and (v) the soft roll-out of voter identification
requirements to go into effect in 2016. With respect to these
provisions, we conclude that, although Plaintiffs may ultimately
succeed at trial, they have not met their burden of satisfying
all elements necessary for a preliminary injunction. We
therefore affirm in part, reverse in part, and remand to the
district court with specific instructions to enter, as soon as
8
possible, an order granting a preliminary injunction enjoining
enforcement of certain provisions of House Bill 589. 1
I. Background 2
In spring 2013, the North Carolina General Assembly began
working on a voter identification law. The House Committee on
Elections, chaired by Representative David R. Lewis, held public
hearings, and an initial version of House Bill 589 was
introduced in the House on April 4. In April, House Bill 589
was debated, amended, and advanced; it ultimately passed the
House essentially along party lines, with no support from any
African American representatives.
In March 2013, before the bill was introduced to the house,
the various sponsors of House Bill 589 sent an e-mail to the
1
While the separate opinion is styled as a dissent, it
concurs with the majority opinion in affirming the district
court’s decision to deny an injunction as to multiple House Bill
589 provisions. We agree with a number of the concerns the
separate opinion raises as to all but two of the challenged
provisions—the elimination of same-day registration and out-of-
precinct voting.
2
As an appellate court, we neither re-weigh evidence nor
make factual findings. And though we may, in this procedural
posture, call out clear error if the district court “ma[de]
findings without properly taking into account substantial
evidence to the contrary[,]” United States v. Caporale, 701 F.3d
128, 140 (4th Cir. 2012), we are taking the facts as they have
been depicted by the district court in North Carolina State
Conference of Branches of the NAACP v. McCrory,
997 F. Supp. 2d
322 (M.D.N.C. 2014).
9
State Board of Elections asking for a “cross matching of the
registered voters in [North Carolina] with the [DMV] to
determine a list of voters who have neither a [North Carolina]
Driver’s License nor a [North Carolina] Identification Card.”
Id. at 357. The legislators also wanted “that subset broken
down into different categories within each county by all
possible demographics that [the State Board of Elections]
typically captures (party affiliation, ethnicity, age, gender,
etc.).”
McCrory, 997 F. Supp. 2d at 357. The State Board of
Elections sent the data in a large spreadsheet the next day.
Later in March 2013, Representative Lewis sent a ten-page
letter to State Board of Elections Director Gary Bartlett asking
about the State Board of Elections’ conclusion that 612,955
registered voters lacked a qualifying photo identification. He
asked the State Board of Elections to “provide the age and
racial breakdown for voters who do not have a driver’s license
number listed.” Id. In April, Bartlett sent a nineteen-page
response along with a spreadsheet that included the requested
race data. That same day, Speaker of the House Thom Tillis’s
general counsel e-mailed the State Board of Elections, asking
for additional race data on people who requested absentee
ballots in 2012; that data, too, the State Board of Elections
provided.
10
In late April 2013, House Bill 589 made its way to the
North Carolina Senate, passed first reading, and was assigned to
the Senate Rules Committee. That committee took no action on
the bill for three months, until July 23. “The parties do not
dispute that the Senate believed at this stage that [House Bill]
589 would have to be submitted to the United States Department
of Justice . . . for ‘pre-clearance’ under Section 5 of the
[Voting Rights Act], 42 U.S.C. § 1973c(a), because many North
Carolina counties were ‘covered jurisdictions’ under that
Section. However, at that time the United States Supreme Court
was considering a challenge to the . . . ability to enforce
Section 5.” McCrory, 997 F. Supp. 2d at 336. 3
On June 25, the Supreme Court issued its decision in Shelby
County, declaring the formula used to determine the Section 5
covered jurisdictions unconstitutional. The very next day,
Senator Thomas Apodaca, Chairman of the North Carolina Senate
Rules Committee, publicly stated, “So, now we can go with the
full bill.” Id. at 336. The contents of the “full bill” were
not disclosed at the time.
3
Under Section 5’s preclearance requirement, no change in
voting procedures in covered jurisdictions could take effect
until approved by federal authorities. A jurisdiction could
obtain such preclearance only by proving that the change had
neither “the purpose [nor] the effect of denying or abridging
the right to vote on account of race or color.” 52 U.S.C.
§ 10304(a).
11
A meeting of the Rules Committee was subsequently scheduled
for July 23. The night before the Rules Committee meeting, the
new bill, by then fifty-seven pages in length, was posted for
the members on the Rules Committee website. Unlike the original
bill, which focused mainly on voter identification, the amended
House Bill 589 expanded the list of restrictive provisions to
include (1) the reduction of early-voting days; (2) the
elimination of same-day registration; (3) a prohibition on
counting out-of-precinct ballots; (4) an expansion of allowable
poll observers and voter challenges; (5) the elimination of the
discretion of county boards of elections to keep the polls open
an additional hour on Election Day in extraordinary
circumstances; and (6) the elimination of pre-registration of
sixteen- and seventeen-year-olds who will not be eighteen years
old by the next general election.
After debate on July 23, the amended bill passed the
committee and proceeded to the floor. On July 25, the Senate
began its session with the third reading of the substantially
amended House Bill 589. Proponents and opponents of the bill
debated its provisions and various proposed amendments for four
hours. “Several Senators characterized the bill as voter
suppression of minorities.” McCrory, 997 F. Supp. 2d at 337.
Nevertheless, at the close of debate, a party-line vote sent
House Bill 589, as amended, back to the House for concurrence.
12
That same day, after the bill had been modified and passed
by the Senate, a State Board of Elections employee e-mailed data
to Representative Lewis, one of the bill’s House sponsors. The
data contained verification rates for same-day registration in
the 2010 and 2012 elections and information about the type of
identifications presented by same-day registrants.
On the evening of July 25, the House received the Senate’s
version of House Bill 589. During debate, opponents
characterized the measure “variously as voter suppression,
partisan, and disproportionately affecting” African Americans,
young voters, and the elderly. McCrory, 997 F. Supp. 2d at 337.
At 10:39 p.m. that night, the House voted–again along party
lines–to concur in the Senate’s version of House Bill 589.
The bill was ratified the next day, July 26, and presented
to Governor Patrick McCrory on July 29. The Governor signed
House Bill 589 into law on August 12, 2013.
That very same day, Plaintiffs filed lawsuits challenging
certain House Bill 589 provisions in the federal district court
for the Middle District of North Carolina. Plaintiffs alleged
that the challenged provisions violated both the United States
Constitution and the Voting Rights Act. Soon thereafter, in
September 2013, the United States filed a lawsuit challenging
certain House Bill 589 provisions exclusively under the Voting
13
Rights Act. And finally, a group of young voters intervened,
also asserting constitutional claims.
The lawsuits were consolidated, the parties undertook
discovery, and Plaintiffs moved for a preliminary injunction.
House Bill 589 contains numerous provisions, only some of which
Plaintiffs challenge. Specifically, Plaintiffs challenge the
legality of, and asked the court to enjoin: the elimination of
same-day voter registration; the elimination of out-of-precinct
voting; the reduction of early-voting days; an increase in at-
large observers at the polls and the deputizing of any resident
to challenge ballots at the polls; the elimination of the
discretion of county boards of elections to extend poll hours
under extraordinary circumstances; and the soft roll-out of
voter identification requirements to go into effect in 2016.
A. Same-Day Registration
In 2007, the General Assembly passed legislation permitting
same-day registration at early-voting sites. The law provided
that “an individual who is qualified to register to vote may
register in person and then vote at [an early-voting] site in
the person’s county of residence during the period for [early]
voting provided under [Section] 163-227.2.” 2007 N.C. Sess.
Laws 253, § 1 (codified at N.C. Gen. Stat. § 163-82.6A(a)
(2008)). The law required a prospective voter to complete a
14
voter-registration form and produce a document to prove his or
her current name and address. Id. (codified at N.C. Gen. Stat.
§ 163-82.6A(b) (2008)).
If the registrant wanted to vote immediately, he or she
could “vote a retrievable absentee ballot as provided in
[Section] 163-227.2 immediately after registering.” Id.
(codified at N.C. Gen. Stat. § 163-82.6A(c) (2008)). Within two
business days, both the pertinent county board of elections and
the State Board of Elections were required to verify the voter’s
driver’s license or social security number, update the database,
proceed to verify the voter’s proper address, and count the vote
unless it was determined that the voter was not qualified to
vote.
Id. (codified at N.C. Gen. Stat. § 163-82.6A(d) (2008)).
House Bill 589 eliminated same-day registration. A voter’s
registration must now be postmarked at least twenty-five days
before Election Day or, if delivered in person or via fax or
scanned document, received by the county board of elections at a
time established by the board. N.C. Gen. Stat. § 163-
82.6(c)(1)-(2).
Plaintiffs’ expert presented unrebutted testimony that
African American North Carolinians have used same-day
registration at a higher rate than whites in the three federal
elections during which it was offered. Specifically, in 2012,
13.4% of African American voters who voted early used same-day
15
registration, as compared to 7.2% of white voters; in the 2010
midterm, the figures were 10.2% and 5.4%, respectively; and in
2008, 13.1% and 8.9%. The district court therefore concluded
that the elimination of same-day registration would “bear more
heavily on African-Americans than whites.” McCrory, 997 F.
Supp. 2d at 355.
B. Out-of-Precinct Voting
In 2002, Congress passed the Help America Vote Act, 42
U.S.C. §§ 15301-15545. Under the Help America Vote Act, states
are required to offer provisional ballots to Election Day voters
who changed residences within thirty days of an election but
failed to report the move to their county board of elections.
See 42 U.S.C. § 15482(a). However, such provisional ballots are
only required to be counted “in accordance with State law.” Id.
§ 15482(a)(4).
In response, the North Carolina General Assembly passed
Session Law 2005-2, removing the requirement that voters appear
in the proper precinct on Election Day in order to vote. 2005
N.C. Sess. Law 2, § 2 (codified at N.C. Gen. Stat. § 163-55(a)
(2006)). The law provided that “[t]he county board of elections
shall count [out-of-precinct provisional ballots] for all ballot
items on which it determines that the individual was eligible
16
under State or federal law to vote.” Id. § 4 (codified at N.C.
Gen. Stat. § 163-166.11(5) (2006)).
The General Assembly made a finding when it adopted the
mechanism in SL 2005-2 that “‘of those registered voters who
happened to vote provisional ballots outside their resident
precincts on the day of the November 2004 General Election, a
disproportionately high percentage were African-American.’”
McCrory, 997 F. Supp. 2d at 368 (citation omitted).
The district court found that (1) between the years 2006
and 2010, an average of 17.1% of African Americans in North
Carolina moved within the State, as compared to only 10.9% of
whites; and (2) 27% of poor African Americans in North Carolina
lack access to a vehicle, compared to 8.8% of poor whites.
Also, the court accepted the determinations of Plaintiffs’
experts that “the prohibition on counting out-of-precinct
provisional ballots will disproportionately affect black
voters.” Id. at 366. According to calculations the district
court accepted, the total number of African Americans using out-
of-precinct voting represents 0.342% of the African American
vote in that election. The total share of the overall white
vote that voted out-of-precinct was 0.21%.
Id. House Bill 589
bars county boards of elections from counting such ballots.
17
C. Early Voting
“No-excuse” early voting was established for even-year
general elections in North Carolina beginning in 2000. 1999
N.C. Sess. Law 455, § 1 (codified at N.C. Gen. Stat. §§ 163-
226(a1), 163-227.2(a1) (2000)). At that point, a registered
voter could present herself at her county board of elections
office “[n]ot earlier than the first business day after the
twenty-fifth day before an election . . . and not later than
5:00 p.m. on the Friday prior to that election” to cast her
ballot. N.C. Gen. Stat. § 163-227.2(b) (2000).
After the 2000 election cycle, the General Assembly
expanded no-excuse early voting to all elections. 2001 N.C.
Sess. Law 337, § 1. It also amended the early-voting period so
that voters could appear at the county board of elections office
to vote “[n]ot earlier than the third Thursday before an
election . . . and not later than 1:00 P.M. on the last Saturday
before that election.” 2001 N.C. Sess. Law 319, § 5(a)
(codified at N.C. Gen. Stat. § 163-227.2(b) (2002)). Under this
law, county boards of elections were required to remain open for
voting until 1:00 p.m. on that final Saturday, but retained the
discretion to allow voting until 5:00 p.m. Id. They were also
permitted to maintain early-voting hours during the evening or
on weekends throughout the early-voting period.
Id. § 5(b)
(codified at N.C. Gen. Stat. § 163-227.2(f) (2002)).
18
House Bill 589 changes the law to allow only ten days of
early voting. It also eliminates the discretion county boards
of elections had to stay open until 5:00 p.m. on the final
Saturday of early voting.
The district court found that in 2010, 36% of all African
American voters that cast ballots utilized early voting, as
compared to 33.1% of white voters. By comparison, in the
presidential elections of 2008 and 2012, over 70% of African
American voters used early voting compared to just over 50% of
white voters.
D. Poll Observers and Challengers
North Carolina law permits the chair of each political
party in every county to “designate two observers to attend each
voting place at each primary and election.” N.C. Gen. Stat. §
163-45(a). House Bill 589 allows the chair of each county party
to “designate 10 additional at-large observers who are residents
of that county who may attend any voting place in that county.”
2013 N.C. Sess. Law 381, § 11.1 (codified at N.C. Gen. Stat. §
163-45(a)). “Not more than two observers from the same
political party shall be permitted in the voting enclosure at
any time, except that in addition one of the at-large observers
from each party may also be in the voting enclosure.” Id. The
list of at-large observers must be “provided by the county
19
director of elections to the chief judge [for each affected
precinct].” Id. (codified at § 163-45(b)).
In conjunction with the addition of at-large observers, the
law now permits any registered voter in the county to challenge
a ballot on Election Day. Id. § 20.2 (codified at N.C. Gen.
Stat. § 163-87)). And during early voting, any state resident
may now challenge ballots.
Id. § 20.1 (codified at N.C. Gen.
Stat. § 163-84)).
E. County Boards of Elections Discretion to Keep the
Polls Open
Under North Carolina law, the polls on Election Day are to
remain open from 6:30 a.m. until 7:30 p.m. N.C. Gen. Stat. §
163-166.01. Beginning in 2001, each county board of elections
had the power to “direct that the polls remain open until 8:30
p.m.” in “extraordinary circumstances.” 2001 N.C. Sess. Laws
460, § 3 (codified at N.C. Gen. Stat. § 163-166 (2002)). House
Bill 589 eliminates the discretion of the county boards of
elections by deleting the “extraordinary circumstances” clause.
2013 N.C. Sess. Law 381, § 33.1.
The law now provides “If the polls are delayed in opening
for more than 15 minutes, or are interrupted for more than 15
minutes after opening, the State Board of Elections may extend
the closing time by an equal number of minutes. As authorized
20
by law, the State Board of Elections shall be available either
in person or by teleconference on the day of election to approve
any such extension.” N.C. Gen. Stat. § 163-166.01.
F. Socioeconomic Disparities in North Carolina
The district court found that Plaintiffs’ expert testimony
“demonstrate[d] that black citizens of North Carolina currently
lag behind whites in several key socioeconomic indicators,
including education, employment, income, access to
transportation, and residential stability.” McCrory, 997 F.
Supp. 2d at 348. Plaintiffs presented “unchallenged
statistics,” for example, that (1) as of 2011-12, 34% of African
American North Carolinians live below the federal poverty level,
compared to 13% of whites; (2) as of the fourth quarter of 2012,
unemployment rates in North Carolina were 17.3% for African
Americans and 6.7% for whites; (3) 15.7% of African American
North Carolinians over age 24 lack a high school degree, as
compared to 10.1% of whites; (4) 27% of poor African American
North Carolinians do not have access to a vehicle, compared to
8.8% of poor whites; and (5) 75.1% of whites in North Carolina
live in owned homes as compared to 49.8% of African Americans.
Id. at 348 n.27. The district court accepted that “North
Carolina’s history of official discrimination against blacks has
21
resulted in current socioeconomic disparities with whites.” Id.
at 366.
II. Standard of Review
The district court made these and other findings and
conclusions in an opinion and order filed August 8, 2014.
Therein, the district court denied completely Plaintiffs’
request for a preliminary injunction. Plaintiffs in turn filed
an Emergency Motion for Injunction Pending Appeal, which we
denied, instead granting Plaintiffs’ motion to expedite this
appeal.
We evaluate the district court’s decision to deny a
preliminary injunction “for an abuse of discretion[,]
review[ing] the district court’s factual findings for clear
error and . . . its legal conclusions de novo.” Pashby v.
Delia, 709 F.3d 307, 319 (4th Cir. 2013) (internal quotation
marks and citations omitted). A district court abuses its
discretion when it misapprehends or misapplies the applicable
law. See, e.g., Centro Tepeyac v. Montgomery Cnty.,
722 F.3d
185, 188 (4th Cir. 2013)(en banc). “Clear error occurs when,
although there is evidence to support it, the reviewing court on
the entire evidence is left with the definite and firm
conviction that a mistake has been committed.” United States v.
22
Harvey, 532 F.3d 326, 336 (4th Cir. 2008)(internal quotation
marks and citations omitted).
III. Preliminary Injunction Analysis
A preliminary injunction may be characterized as being
either prohibitory or mandatory. Here, Plaintiffs assert that
the preliminary injunction they seek is prohibitory while
Defendants claim it is mandatory, which “in any circumstance is
disfavored.” Taylor v. Freeman, 34 F.3d 266, 270 n.2 (4th Cir.
1994).
Whereas mandatory injunctions alter the status quo,
prohibitory injunctions “aim to maintain the status quo and
prevent irreparable harm while a lawsuit remains pending.”
Pashby, 709 F.3d at 319. We have defined the status quo for
this purpose to be “the last uncontested status between the
parties which preceded the controversy.”
Id. at 320 (internal
quotation marks and citation omitted). “To be sure, it is
sometimes necessary to require a party who has recently
disturbed the status quo to reverse its actions, but . . .
[s]uch an injunction restores, rather than disturbs, the status
quo ante.” Aggarao v. MOL Ship Mgmt. Co.,
675 F.3d 355, 378
(4th Cir. 2012) (internal quotation marks and citation omitted).
Here, Plaintiffs brought their lawsuits challenging
elements of House Bill 589 on the very same day it was signed
23
into law—August 12, 2013. Plaintiffs then filed motions seeking
to enjoin House Bill 589’s “elimination of [same-day
registration], out-of-precinct provisional voting, and pre-
registration[, and] its cutback of early voting.” McCrory, 997
F. Supp. 2d at 339 (emphasis added). Without doubt, this is the
language and stuff of a prohibitory injunction seeking to
maintain the status quo.
To win such a preliminary injunction, Plaintiffs must
demonstrate that (1) they are likely to succeed on the merits;
(2) they will likely suffer irreparable harm absent an
injunction; (3) the balance of hardships weighs in their favor;
and (4) the injunction is in the public interest. Winter v.
Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).
IV. Preliminary Injunction Denied On Certain
House Bill 589 Provisions
At the outset, we determine that Plaintiffs have failed to
establish at least one element necessary to win a preliminary
injunction with respect to the following provisions of House
Bill 589: (i) the reduction of early-voting days; (ii) the
expansion of allowable voter challengers; (iii) the elimination
of the discretion of county boards of elections to keep the
polls open an additional hour on Election Day in “extraordinary
circumstances”; (iv) the elimination of pre-registration of
24
sixteen- and seventeen-year-olds who will not be eighteen years
old by the next general election; and (v) the soft roll-out of
voter identification requirements to go into effect in 2016.
With respect to early voting, we are convinced that the
significant risk of a substantial burden to the State tips the
balance of hardships in its favor. Were we to enjoin House Bill
589’s reduction in early-voting days, early voting would need to
begin in approximately two weeks. We conclude that this very
tight timeframe represents a burden not only on the State, but
also on the county boards of elections. The balance of
hardships thus favors denying a preliminary injunction as to
early voting.
With respect to pre-registration of sixteen- and seventeen-
year-olds, as the district court correctly noted, only citizens
eighteen years and older may vote. The State’s refusal to pre-
register sixteen- and seventeen-year-olds will, therefore, not
harm citizens who may vote in the upcoming general election.
The district court therefore did not abuse its discretion in
determining that, while Plaintiffs could well succeed on this
claim at trial, they have not shown that “they will be
irreparably harmed before trial absent an injunction.” McCrory,
997 F. Supp. 2d at 378.
Regarding the elimination of the discretion of county
boards of elections to keep the polls open an additional hour on
25
Election Day in “extraordinary circumstances,” the district
court did not abuse its discretion in finding that Plaintiffs
have failed to show that they will be irreparably harmed by this
provision in the upcoming election. This is particularly true,
as the district court noted, given that the State Board of
Elections “retains the ability to make up significant losses in
time by ordering the polls to remain open on the event of a
delay.” Id. at 380. Again, this is not to say that Plaintiffs
will not ultimately succeed with their challenge to this
provision at trial. They simply have not shown irreparable harm
for purposes of the preliminary injunction.
With respect to the soft roll-out of voter identification
requirements to go into effect in 2016, as the district court
noted, Plaintiffs did provide evidence that a husband and wife
were improperly advised that they needed a photo identification
in order to vote in the May 2014 primary. McCrory, 997 F. Supp.
2d at 377. While that couple was certainly misinformed, and
while that fact raises a red flag, Plaintiffs cannot escape the
fact that even that couple was, in fact, allowed to vote.
Id.
While we share Plaintiffs’ concern that requiring poll workers
to implement the soft rollout without adequate training might
result in some confusion, we are unable to find that the
district court committed clear error in deeming this argument
“speculative.” McCrory, 997 F. Supp. 2d at 377. Again,
26
Plaintiffs may well succeed with their challenge to the
identification law at trial. We hold only that, for purposes of
the upcoming election, they have not shown irreparable injury.
Finally, with respect to House Bill 589’s poll challenger
and observer provision, we agree with the district court that
“African-American voters in North Carolina and elsewhere have
good reason to be concerned about intimidation and other threats
to their voting rights. Any intimidation is unlawful and cannot
be tolerated, and courts must be vigilant to ensure that such
conduct is rooted out where it may appear.” McCrory, 997 F.
Supp. 2d at 380. Nevertheless, the district court did not abuse
its discretion in finding that Plaintiffs have not shown that
any such irreparable harm is likely to occur in the upcoming
election. The district court found that “Plaintiffs have
provided no basis to suggest that poll observers or any
challenger(s) will abuse their statutory power.” Id. Although
we are skeptical as to the ultimate accuracy of this prediction,
we cannot say that the district court committed clear error.
We do not mean to suggest that Plaintiffs cannot prove and
eventually succeed on their challenges to all of these
provisions when their case goes to trial. Indeed, a proper
application of the law to a more developed factual record could
very well result in some or all of the challenged House Bill 589
provisions being struck down. At this point in time, however,
27
we hold that, for purposes of a preliminary injunction as to
this November’s election and based on the facts as found by the
district court for the limited purpose of addressing Plaintiffs’
request for a preliminary injunction, the district court did not
abuse its discretion in determining that Plaintiffs have not
shown that the balance of hardships tips in their favor as to
early voting or that they will suffer irreparable harm as to the
other provisions discussed above.
V. Analysis Of Same-Day Registration and
Out-of-Precinct Voting Challenges
We now turn to the remaining two challenged provisions of
House Bill 589: the elimination of same-day registration and the
prohibition on counting out-of-precinct ballots. We begin our
analysis by evaluating Plaintiffs’ likelihood of success on the
merits of their Section 2 claims. Determining that Plaintiffs
have shown that they are likely to succeed on the merits, we
then proceed to the remaining elements of the preliminary
injunction analysis: whether Plaintiffs are likely to suffer
irreparable harm; whether the injunction is in the public
interest; and finally, whether the balance of hardships tips in
Plaintiffs’ favor.
28
A. Likelihood of Success on the Merits on Section 2
Section 2 of the Voting Rights Act forbids any “standard,
practice, or procedure” that “results in a denial or abridgement
of the right of any citizen of the United States to vote on
account of race or color.” 52 U.S.C. § 10301(a) (formerly
codified at 42 U.S.C. § 1973(a)). “A violation of subsection
(a) is established if, based on the totality of circumstances,
it is shown that the political processes leading to nomination
or election in the State or political subdivision are not
equally open to participation by” citizens of protected races
“in that [they] have less opportunity than other members of the
electorate to participate in the political process and to elect
representatives of their choice.” 52 U.S.C. § 10301(b).
With Section 2, Congress effectuated a “permanent,
nationwide ban on racial discrimination” because “any racial
discrimination in voting is too much.” Shelby Cnty., 133 S. Ct.
at 2631. Accordingly, Section 2 “prohibits all forms of voting
discrimination” that lessen opportunity for minority voters.
Gingles, 478 U.S. at 45 n.10.
“Both the Federal Government and individuals” may sue to
enforce Section 2, under which “injunctive relief is
available . . . to block voting laws from going into effect.”
Shelby Cnty., 133 S. Ct. at 2619. Thus, in two very recent
cases, courts granted injunctive relief to plaintiffs with vote-
29
denial claims where state election laws less sweeping than North
Carolina’s had recently been passed. Ohio State Conference of
N.A.A.C.P. v. Husted, __ F. Supp. 2d __, 2014 WL 4377869 (S.D.
Ohio 2014), aff’d, No. 14–3877,
2014 WL 4724703 (6th Cir. Sept.
24, 2014), stayed, No. 14A336, Order List 573 U.S.,
2014 WL
4809069 (U.S. Sept. 29, 2014); Frank v. Walker, __ F. Supp. 2d.
__,
2014 WL 1775432 (E.D. Wis. 2014), stayed,
2014 WL 4494153
(7th Cir. Sept. 12, 2014).
Under Section 2 as it exists today, showing intentional
discrimination is unnecessary. 4 Instead, a Section 2 violation
can “be established by proof of discriminatory results alone.”
Chisom v. Roemer, 501 U.S. 380, 404 (1991). Thus, the “right”
Section 2 inquiry “is whether ‘as a result of the challenged
practice or structure plaintiffs do not have an equal
opportunity to participate in the political processes and to
elect candidates of their choice.’”
Gingles, 478 U.S. at 44
(footnote omitted)(quoting S.Rep. No. 97–417, 97th Cong.2nd
Sess. 28 (1982), U.S. Code Cong. & Admin. News 1982, p. 206).
4
The Supreme Court had previously read an intent
requirement into Section 2, but Congress quickly amended the law
to reject that interpretation. See, e.g., Gingles, 478 U.S. at
43-44 (noting that Congress “dispositively reject[ed] the
position of the plurality in Mobile v. Bolden,
446 U.S. 55,
100
S. Ct. 1490,
64 L. Ed. 2d 47 (1980), which required proof that the
contested electoral practice or mechanism was adopted or
maintained with the intent to discriminate against minority
voters”).
30
In other words, “[t]he essence of a [Section] 2 claim is that a
certain electoral law, practice, or structure interacts with
social and historical conditions to cause an inequality in the
opportunities enjoyed by black and white voters to elect their
preferred representatives.” Id. at 47.
Section 2’s use to date has primarily been in the context
of vote-dilution cases. “Vote dilution claims involve
challenges to methods of electing representatives—like
redistricting or at-large districts—as having the effect of
diminishing minorities’ voting strength.” Husted, 2014 WL
4724703, at *24. The district court in this case correctly
noted that there is a paucity of appellate case law evaluating
the merits of Section 2 claims in the vote-denial context.
McCrory, 997 F. Supp. 2d at 346. It may well be that,
historically, Section 2 claims focused on vote dilution. But
the predominance of vote dilution in Section 2 jurisprudence
likely stems from the effectiveness of the now-defunct Section 5
preclearance requirements that stopped would-be vote denial from
occurring in covered jurisdictions like large parts of North
Carolina. Even the district court recognized as much.
Id.
The facts of this case attest to the prophylactic success
of Section 5’s preclearance requirements. It appears that
Section 5, which required covered jurisdictions to prove that a
change in electoral law had neither “the purpose [nor] the
31
effect of denying or abridging the right to vote on account of
race or color,” 52 U.S.C. § 10304(a), was the only reason House
Bill 589’s sponsors did not reveal the “full bill” to the public
until after the Shelby County decision came down. McCrory, 997
F. Supp. 2d at 336.
Nonetheless, despite the success of Section 5’s
preclearance requirement at tamping down vote denial in covered
jurisdictions, Section 2’s use to date has not been entirely
dilution-focused. Rather, courts have entertained vote-denial
claims regarding a wide range of practices, including
restrictive voter identification laws (Frank, 2014 WL 1775432);
unequal access to voter registration opportunities (Operation
PUSH v. Allain,
674 F. Supp. 1245 (N.D. Miss. 1987), aff’d sub
nom, Operation PUSH v. Mabus,
932 F.2d 400 (5th Cir. 1991));
unequal access to polling places (Brown v. Dean,
555 F. Supp.
502 (D.R.I. 1982)); and omnibus laws combining registration and
voting restrictions (Husted,
2014 WL 4377869, aff’d,
2014 WL
4724703).
Indeed, Section 2’s plain language makes clear that vote
denial is precisely the kind of issue Section 2 was intended to
address. Section 2 of the Voting Rights Act forbids any
“standard, practice, or procedure” that “results in a denial or
abridgement of the right of any citizen of the United States to
vote on account of race or color.” 52 U.S.C. § 10301(a). See
32
also Gingles, 478 U.S. at 45 n.10 (“Section 2 prohibits all
forms of voting discrimination, not just vote dilution.”).
Further, the principles that make vote dilution
objectionable under the Voting Rights Act logically extend to
vote denial. Everyone in this case agrees that Section 2 has
routinely been used to address vote dilution—which basically
allows all voters to ‘sing’ but forces certain groups to do so
pianissimo. Vote denial is simply a more extreme form of the
same pernicious violation—those groups are not simply made to
sing quietly; instead their voices are silenced completely. A
fortiori, then, Section 2 must support vote-denial claims.
Justice Scalia has provided a helpful illustration of what
a Section 2 vote-denial claim might look like:
If, for example, a county permitted voter registration
for only three hours one day a week, and that made it
more difficult for blacks to register than whites,
blacks would have less opportunity “to participate in
the political process” than whites, and [Section] 2
would therefore be violated . . . .
Chisom, 501 U.S. at 408 (Scalia, J., dissenting).
Based on our reading of the plain language of the statute
and relevant Supreme Court authority, we agree with the Sixth
Circuit that a Section 2 vote-denial claim consists of two
elements:
• First, “the challenged ‘standard, practice, or
procedure’ must impose a discriminatory burden on
members of a protected class, meaning that
members of the protected class ‘have less
33
opportunity than other members of the electorate
to participate in the political process and to
elect representatives of their choice.’” Husted,
2014 WL 4724703, at *24 (quoting 42 U.S.C. §
1973(a)-(b));
• Second, that burden “must in part be caused by or
linked to ‘social and historical conditions’ that
have or currently produce discrimination against
members of the protected class.” Id. (quoting
Gingles, 478 U.S. at 47).
“In assessing both elements, courts should consider ‘the
totality of circumstances.’” Id. at *24 (quoting 42 U.S.C. §
1973(b)). In evaluating Section 2 claims, courts have looked to
certain “typical” factors pulled directly from the Voting Rights
Act’s legislative history:
• The history of voting-related discrimination in the
pertinent State or political subdivision;
• The extent to which voting in the elections of the
pertinent State or political subdivision is racially
polarized;
• The extent to which the State or political subdivision has
used voting practices or procedures that tend to enhance
the opportunity for discrimination against the minority
group, such as unusually large election districts, majority
vote requirements, and prohibitions against bullet voting;
• The exclusion of members of the minority group from
candidate slating processes;
• The extent to which minority group members bear the effects
of past discrimination in areas such as education,
employment, and health, which hinder their ability to
participate effectively in the political process;
• The use of even subtle racial appeals in political
campaigns;
• The extent to which members of the minority group have been
elected to public office in the jurisdiction;
• Evidence demonstrating that elected officials are
unresponsive to the particularized needs of the members of
the minority group; and
34
• The extent to which the policy underlying the State’s or
the political subdivision’s use of the contested practice
or structure is tenuous.
Gingles, 478 U.S. at 44-45. These factors may shed light on
whether the two elements of a Section 2 claim are met.
Notably, while these factors “may be relevant” to a Section
2 analysis, “‘there is no requirement that any particular number
of factors be proved, or [even] that a majority of them point
one way or the other.’” Id. at 45 (quoting S. Rep. No. 97–417,
97th Cong.2nd Sess. 29 (1982), U.S. Code Cong. & Admin. News
1982, p. 207). This is not surprising, given that Congress
intended to give the Voting Rights Act “the broadest possible
scope.” Allen v. State Bd. of Elections,
393 U.S. 544, 567
(1969).
Instead, courts must undertake “a searching practical
evaluation of the ‘past and present reality,’ [with] a
‘functional’ view of the political process.” Gingles, 478 U.S.
at 45 (quoting S. Rep. at 30, U.S. Code Cong. & Admin. News
1982, p. 208). Courts must make “an intensely local appraisal
of the design and impact of” electoral administration “in the
light of past and present reality.”
Id. at 78 (quoting White v.
Regester,
412 U.S. 755, 769-70 (1973)).
With this legal framework in mind, we turn now to the
district court’s Section 2 analysis.
35
1. The District Court Misapprehended and
Misapplied the Law
A close look at the district court’s analysis here reveals
numerous grave errors of law that constitute an abuse of
discretion. Centro Tepeyac, 722 F.3d at 188.
First, the district court bluntly held that “Section 2 does
not incorporate a ‘retrogression’ standard” and that the court
therefore was “not concerned with whether the elimination of
[same-day registration and other features] will worsen the
position of minority voters in comparison to the preexisting
voting standard, practice or procedure—a Section 5 inquiry.”
McCrory, 997 F. Supp. 2d at 351-52 (internal quotation marks and
citations omitted).
Contrary to the district court’s statements, Section 2, on
its face, requires a broad “totality of the circumstances”
review. 52 U.S.C. § 10301(b). Clearly, an eye toward past
practices is part and parcel of the totality of the
circumstances.
Further, as the Supreme Court noted, “some parts of the
[Section] 2 analysis may overlap with the [Section] 5 inquiry.”
Georgia v. Ashcroft, 539 U.S. 461, 478 (2003). Both Section 2
and Section 5 invite comparison by using the term “abridge[].”
Section 5 states that any voting practice or procedure “that has
the purpose of or will have the effect of diminishing the
36
ability of any citizens of the United States on account of race
or color . . . to elect their preferred candidates of choice
denies or abridges the right to vote.” 52 U.S.C. § 10304(b)
(emphasis added). Section 2 forbids any “standard, practice, or
procedure” that “results in a denial or abridgement of the right
of any citizen of the United States to vote on account of race
or color.” 52 U.S.C. § 10301(a) (emphasis added). The Supreme
Court has explained that “[t]he term ‘abridge,’ . . . whose core
meaning is ‘shorten,’. . . necessarily entails a comparison. It
makes no sense to suggest that a voting practice ‘abridges’ the
right to vote without some baseline with which to compare the
practice.” Reno v. Bossier Parish Sch. Bd., 528 U.S. 320, 333–
34 (2000) (citations omitted).
Neither the Supreme Court nor this Court has ever held
that, in determining whether an abridgement has occurred, courts
are categorically barred from considering past practices, as the
district court here suggested. In fact, opinions from other
circuits support the opposite conclusion. For example, the
Tenth Circuit, quoting directly from Section 2’s legislative
history, has explained that “‘[i]f [a challenged] procedure
markedly departs from past practices or from practices elsewhere
in the jurisdiction, that bears on the fairness of its impact.’”
Sanchez v. State of Colo., 97 F.3d 1303, 1325 (10th Cir. 1996)
(quoting 1982 U.S.C.C.A.N. at 207, n.117). And as the Sixth
37
Circuit recently held, under Section 2, “the focus is whether
minorities enjoy less opportunity to vote as compared to other
voters. The fact that a practice or law eliminates voting
opportunities that used to exist under prior law that African
Americans disproportionately used is therefore relevant to an
assessment of whether, under the current system, African
Americans have an equal opportunity to participate in the
political process as compared to other voters.” Husted, 2014 WL
4724703, at *28.
In this case, North Carolina’s previous voting practices
are centrally relevant under Section 2. They are a critical
piece of the totality-of-the-circumstances analysis Section 2
requires. In refusing to consider the elimination of voting
mechanisms successful in fostering minority participation, the
district court misapprehended and misapplied Section 2.
Second, the district court considered each challenged
electoral mechanism only separately. See McCrory, 997 F. Supp.
2d at 344 (addressing same-day registration), at 365 (addressing
out-of-precinct voting), at 370 (early voting), at 375
(identification requirements), at 378 (pre-registration of
teenagers), and at 379 (poll challengers and elimination of
discretion to keep the polls open). Yet “[a] panoply of
regulations, each apparently defensible when considered alone,
may nevertheless have the combined effect of severely
38
restricting participation and competition.” Clingman v. Beaver,
544 U.S. 581, 607-08 (2005) (O’Connor, J., concurring in part
and concurring in the judgment).
By inspecting the different parts of House Bill 589 as if
they existed in a vacuum, the district court failed to consider
the sum of those parts and their cumulative effect on minority
access to the ballot box. Doing so is hard to square with
Section 2’s mandate to look at the “totality of the
circumstances,” 52 U.S.C. § 10301(b), as well as Supreme Court
precedent requiring “a searching practical evaluation” with a
“functional view of the political process.” Gingles, 478 U.S.
at 45 (internal quotation marks and citations omitted). By
looking at each provision separately and failing to consider the
totality of the circumstances, then, the district court
misapprehended and misapplied the pertinent law.
Third, the district court failed to adequately consider
North Carolina’s history of voting discrimination. Instead the
district court parroted the Supreme Court’s proclamation that
“‘history did not end in 1965,’” McCrory, 997 F. Supp. 2d at 349
(quoting Shelby
Cnty., 133 S. Ct. at 2628) and that “‘[p]ast
discrimination cannot, in the manner of original sin, condemn
governmental action.’”
Id. (quoting City of Mobile, Ala. v.
Bolden,
446 U.S. 55, 74 (1980)).
39
Of course, the history of voting discrimination in many
states in fact did substantially end in 1965—due in large part
to the Voting Rights Act. The Supreme Court’s observation that
a state’s history should not serve to condemn its future,
however, does not absolve states from their future
transgressions. As Justice Ginsburg pointed out in her Shelby
County dissent, casting aside the Voting Rights Act because it
has worked “to stop discriminatory changes is like throwing away
your umbrella in a rainstorm because you are not getting wet.”
133 S. Ct. at 2650 (Ginsburg, J., dissenting).
Immediately after Shelby County, i.e., literally the next
day, when “history” without the Voting Rights Act’s preclearance
requirements picked up where it left off in 1965, North Carolina
rushed to pass House Bill 589, the “full bill” legislative
leadership likely knew it could not have gotten past federal
preclearance in the pre–Shelby County era. McCrory, 997 F.
Supp. 2d at 336. Thus, to whatever extent the Supreme Court
could rightly celebrate voting rights progress in Shelby County,
the post-Shelby County facts on the ground in North Carolina
should have cautioned the district court against doing so here.
Fourth, in analyzing the elimination of same-day
registration, the district court looked to the National Voter
Registration Act, which generally allows for a registration cut-
off of thirty days before an election. McCrory, 997 F. Supp. 2d
40
at 352. The district court then declared that “it is difficult
to conclude that Congress intended that a State’s adoption of a
registration cut-off before election day would constitute a
violation of Section 2.” Id. In doing so, the district court
lost sight of the fact that the National Voter Registration Act
merely sets a floor for state registration systems.
That North Carolina used to exceed National Voter
Registration Act registration minimums does not entitle it to
eliminate its more generous registration provisions without
ensuring that, in doing so, it is not violating Section 2.
Indeed, Congress made that quite clear by including in the
National Voter Registration Act an express warning that the
rights and remedies it established shall not “supersede,
restrict, or limit the application of the Voting Rights Act.”
52 U.S.C. § 20510(d)(1).
Fifth, also with respect to same-day registration, the
district court suggested that because voting was not completely
foreclosed and because voters could still register and vote by
mail, a likely Section 2 violation had not been shown. See
McCrory, 997 F. Supp. 2d at 356 (noting that “North Carolina
provides several other ways to register” besides same-day
registration that “have not been shown to be practically
unavailable to African–American residents”).
41
However, nothing in Section 2 requires a showing that
voters cannot register or vote under any circumstance. Instead,
it requires “that a certain electoral law, practice, or
structure interacts with social and historical conditions to
cause an inequality in the opportunities enjoyed by black and
white voters to elect their preferred representatives.”
Gingles, 478 U.S. at 47. In waiving off disproportionately high
African American use of certain curtailed registration and
voting mechanisms as mere “preferences” that do not absolutely
preclude participation, the district court abused its
discretion. See McCrory,
997 F. Supp. 2d at 351.
Sixth, Section 2, on its face, is local in nature. Under
Section 2, “[a] violation . . . is established if, based on the
totality of circumstances, it is shown that the political
processes leading to nomination or election in the State or
political subdivision are not equally open to participation by
citizens of protected races.” 52 U.S.C. § 10301(b) (emphasis
added). As the Supreme Court has noted, in undertaking a
Section 2 analysis, courts make “an intensely local appraisal of
the design and impact of” electoral administration “in the light
of past and present reality.” Gingles, 478 U.S. at 78.
Nevertheless, without any basis in the statute or binding
precedent, the district court suggested that a practice must be
discriminatory on a nationwide basis to violate Section 2 and
42
held that a conclusion it might reach as to North Carolina would
somehow throw other states’ election laws into turmoil. For
example, the district court stated that “a determination that
North Carolina is in violation of Section 2 merely for
maintaining a system that does not count out-of-precinct
provisional ballots could place in jeopardy the laws of the
majority of the States, which have made the decision not to
count such ballots.” McCrory, 997 F. Supp. 2d at 367. The
district court’s failure to understand the local nature of
Section 2 constituted grave error. Cf. Husted,
2014 WL 4724703,
at *29 (“There is no reason to think our decision here compels
any conclusion about the early-voting practices in other states,
which do not necessarily share Ohio’s particular
circumstances.”).
Seventh, the district court minimized Plaintiffs’ claim as
to out-of-precinct voting because “so few voters cast” ballots
in the wrong precincts. McCrory, 997 F. Supp. 2d at 366. The
district court accepted evidence that “approximately 3,348 out-
of-precinct provisional ballots cast by [African American]
voters were counted to some extent in the 2012 general
election.”
Id. Going forward under House Bill 589, a
substantial number of African American voters will thus likely
be disenfranchised.
43
Though the district court recognized that “failure to count
out-of-precinct provisional ballots will have a disproportionate
effect on [African American] voters,” it held that such an
effect “will be minimal.” Id. Setting aside the basic truth
that even one disenfranchised voter—let alone several thousand—
is too many, what matters for purposes of Section 2 is not how
many minority voters are being denied equal electoral
opportunities but simply that “any” minority voter is being
denied equal electoral opportunities. 52 U.S.C. § 10301(a)
(forbidding any “standard, practice, or procedure” that
interacts with social and historical conditions and thereby
“results in a denial or abridgement of the right of any citizen
of the United States to vote on account of race or color”)
(emphasis added).
Eighth and finally, the district court rationalized
election administration changes that disproportionately affected
minority voters on the pretext of procedural inertia and under-
resourcing. For example, in evaluating Plaintiffs’ Section 2
challenge to the elimination of same-day registration, the
district court noted that county boards of elections “sometimes
lack[] sufficient time to verify registrants.” McCrory, 997 F.
Supp. 2d at 353. But in detailing why that was so, the district
court exposed that the problem’s roots lie largely in boards of
elections’ own procedures. Id. at 353 and n.36. The district
44
court then noted that “a voter who registered before the ‘close
of books’ 25 days before election day will have more time to
pass the verification procedure than a voter who registered and
voted during early voting.” McCrory, 997 F. Supp. 2d at 353.
But more time alone guarantees nothing, and nothing suggests
that a voter who registers earlier will therefore be verified
before voting.
The district court failed to recognize, much less address,
the problem of sacrificing voter enfranchisement at the altar of
bureaucratic (in)efficiency and (under-)resourcing. After all,
Section 2 does not prescribe a balancing test under which the
State can pit its desire for administrative ease against its
minority citizens’ right to vote. The district court thus
abused its discretion when it held that “[i]t is sufficient for
the State to voice concern that [same-day registration] burdened
[county boards of elections] and left inadequate time for
elections officials to properly verify voters.” Id. at 354.
These flaws in the district court’s Section 2 analysis make
it clear that the district court both misapprehended and
misapplied the pertinent law. Accordingly, the district court
abused its discretion. Centro Tepeyac, 722 F.3d at 188.
45
2. Proper Application of Section 2
Properly applying the law to the facts, even as the
district court portrayed them, shows that Plaintiffs are, in
fact, likely to succeed on the merits of their Section 2 claims
regarding the elimination of same-day registration and out-of-
precinct voting, contrary to the district court’s determination.
In the first step of our Section 2 analysis, we must
determine whether House Bill 589’s elimination of same-day
registration and out-of-precinct voting imposes a discriminatory
burden on members of a protected class, meaning that members of
the protected class “have less opportunity than other members of
the electorate to participate in the political process and to
elect representatives of their choice.” 52 U.S.C. 10301. See
also Husted, 2014 WL 4724703, at *24 (identifying the two steps
of the Section 2 vote-denial inquiry).
There can be no doubt that certain challenged measures in
House Bill 589 disproportionately impact minority voters. The
district court found that Plaintiffs “presented unrebutted
testimony that [African American] North Carolinians have used
[same-day registration] at a higher rate than whites in the
three federal elections during which [same-day registration] was
offered” and recognized that the elimination of same-day
registration would “bear more heavily on African-Americans than
whites.” McCrory, 997 F. Supp. 2d at 348-49. The district
46
court also “accept[ed] the determinations of Plaintiffs’ experts
that” African American voters disproportionately voted out of
precinct and that “the prohibition on counting out-of-precinct
provisional ballots will disproportionally affect [African
American] voters.” Id. at 366.
Second, we must determine whether this impact was in part
“caused by or linked to ‘social and historical conditions’ that
have or currently produce discrimination against members of the
protected class.” Husted, 2014 WL 4724703, at *24 (quoting
Gingles, 478 U.S. at 47). Here, when we apply the proper legal
standard to the district court’s findings, the disproportionate
impacts of eliminating same-day registration and out-of-precinct
voting are clearly linked to relevant social and historical
conditions.
In making this determination, we are aided by consideration
of the “typical” factors that Congress noted in Section 2’s
legislative history. However we recognize that “there is no
requirement that any particular number of factors be proved, or
that a majority of them point one way or the other.” Gingles,
478 U.S. at 45 (internal quotation marks and citation omitted).
Regarding the history of voting-related discrimination in
the pertinent State, the district court found that “North
Carolina . . . has an unfortunate history of official
discrimination in voting and other areas that dates back to the
47
Nation’s founding. This experience affects the perceptions and
realities of [African American] North Carolinians to this day.”
McCrory, 997 F. Supp. 2d at 349.
One of Plaintiffs’ witnesses testified, for example, that
at around age 19—in the 1940s—she was required to recite the
Preamble to the Constitution from memory in order to register to
vote. Id. at 349 n.29. As of 1965, 39 counties in North
Carolina were considered covered jurisdictions under the Voting
Rights Act, having “maintained a test or device as a
prerequisite to voting as of November 1, 1964, and [having] had
less than 50 percent voter registration or turnout in the 1964
Presidential election.” Shelby
Cnty., 133 S. Ct. at 2620. And
in 1975, when the Voting Rights Act’s preclearance formula was
extended to cover jurisdictions that provided “English-only
voting materials in places where over five percent of voting-age
citizens spoke a single language other than English,” several
additional North Carolina counties became covered jurisdictions.
Id.
The district court recognized that the legacy of overtly
discriminatory practices such as these and the concurrent
“struggle for African-Americans’ voting rights” justifies North
Carolinians’ skepticism of changes to voting laws. McCrory,
997
F. Supp. 2d at 349. The fact that the Supreme Court struck down
the Voting Rights Act’s “covered jurisdictions” formula in
48
Shelby County does not allow us to simply ignore Congress’s
directive to view current changes to North Carolina’s voting
laws against the mire of its past.
Regarding effects of past discrimination that hinder
minorities’ ability to participate effectively in the political
process, the district court pronounced that “Plaintiffs’ expert
testimony demonstrates that [African American] citizens of North
Carolina currently lag behind whites in several key
socioeconomic indicators, including education, employment,
income, access to transportation, and residential stability.”
McCrory, 997 F. Supp. 2d at 348. To this end, Plaintiffs
presented the following unchallenged statistics: (1) as of 2011-
12, 34% of African American North Carolinians live below the
federal poverty level, compared to 13% of whites; (2) as of the
fourth quarter of 2012, unemployment rates in North Carolina
were 17.3% for African Americans and 6.7% for whites; (3) 15.7%
of African American North Carolinians over age 24 lack a high
school degree, as compared to 10.1% of whites; (4) 27% of poor
African American North Carolinians do not have access to a
vehicle, compared to 8.8% of poor whites; and (5) 75.1% of
African Americans in North Carolina live in owned homes as
compared to 49.8% of whites. Id. at n.27.
Finally, as to the tenuousness of the reasons given for the
restrictions, North Carolina asserts goals of electoral
49
integrity and fraud prevention. But nothing in the district
court’s portrayal of the facts suggests that those are anything
other than merely imaginable. And “states cannot burden the
right to vote in order to address dangers that are remote and
only ‘theoretically imaginable.’” Frank, 2014 WL 1775432, at *8
(quoting Williams v. Rhodes,
393 U.S. 23, 33 (1968)).
Indeed, the best fact for North Carolina in the district
court’s opinion—the only specific problem cited, beyond naked
statements of bureaucratic difficulty attributable at least as
much to under-resourcing of boards of elections—is that a
thousand votes that had not yet been properly verified had been
counted in an election. McCrory, 997 F. Supp. 2d at 353. But
nothing in the district court’s opinion suggests that any of
those were fraudulently or otherwise improperly cast. Thus,
even the best fact the State could muster is tenuous indeed.
At the end of the day, we cannot escape the district
court’s repeated findings that Plaintiffs presented undisputed
evidence showing that same-day registration and out-of-precinct
voting were enacted to increase voter participation, that
African American voters disproportionately used those electoral
mechanisms, and that House Bill 589 restricted those mechanisms
and thus disproportionately impacts African American voters. To
us, when viewed in the context of relevant “social and
historical conditions” in North Carolina, Gingles, 478 U.S. at
50
47, this looks precisely like the textbook example of Section 2
vote denial Justice Scalia provided:
If, for example, a county permitted voter registration
for only three hours one day a week, and that made it
more difficult for blacks to register than whites,
blacks would have less opportunity “to participate in
the political process” than whites, and [Section] 2
would therefore be violated . . . .
Chisom, 501 U.S. at 408.
Further, even if we were to accept North Carolina’s
purported non-discriminatory basis for keeping the full bill a
secret until the federal preclearance regime had been thrown
over in Shelby County, we cannot ignore the discriminatory
results that several measures in House Bill 589 effectuate.
Section 2’s “‘results’ criterion provides a powerful, albeit
sometimes blunt, weapon with which to attack even the most
subtle forms of discrimination.” Chisom, 501 U.S. at 406
(Scalia, J., dissenting). Neither North Carolina nor any other
jurisdiction can escape the powerful protections Section 2
affords minority voters by simply “espous[ing]” rationalizations
for a discriminatory law.
McCrory, 997 F. Supp. 2d at 357.
While plaintiffs seeking preliminary injunctions must
demonstrate that they are likely to succeed on the merits, they
“need not show a certainty of success.” Pashby, 709 F.3d at
321. For the reasons set out above, Plaintiffs here have shown
that with respect to the challenged provisions of House Bill 589
51
affecting same-day registration and out-of-precinct voting, they
are likely to succeed with their Section 2 claims. In deciding
otherwise, the district court abused its discretion.
B. Irreparable Harm, the Public Interest, and the Balance
of Hardships
Having concluded that Plaintiffs have met the first test
for a preliminary injunction, likelihood of success on the
merits, as to their same-day registration and out-of-precinct
voting challenges, we must consider whether the other elements
have similarly been met. In other words, we must analyze
whether Plaintiffs are likely to suffer irreparable harm; the
balance of the hardships; and whether the injunction is in the
public interest. Winter, 555 U.S. at 20.
Courts routinely deem restrictions on fundamental voting
rights irreparable injury. See, e.g., Obama for Am. v. Husted,
697 F.3d 423, 436 (6th Cir. 2012); Williams v. Salerno,
792 F.2d
323, 326 (2d Cir. 1986); cf. Alternative Political Parties v.
Hooks,
121 F.3d 876 (3d Cir. 1997). And discriminatory voting
procedures in particular are “the kind of serious violation of
the Constitution and the Voting Rights Act for which courts have
granted immediate relief.” United States v. City of Cambridge,
799 F.2d 137, 140 (4th Cir. 1986). This makes sense generally
and here specifically because whether the number is thirty or
thirty-thousand, surely some North Carolina minority voters will
52
be disproportionately adversely affected in the upcoming
election. And once the election occurs, there can be no do-over
and no redress. The injury to these voters is real and
completely irreparable if nothing is done to enjoin this law. 5
By definition, “[t]he public interest . . . favors
permitting as many qualified voters to vote as possible.”
Husted, 697 F.3d at 437. See also Purcell v. Gonzalez,
549 U.S.
1, 4 (2006) (The public has a “strong interest in exercising the
fundamental political right to vote.” (citations omitted)). And
“upholding constitutional rights serves the public interest.”
Newsome v. Albermarle Cnty. Sch. Bd.,
354 F.3d 249, 261 (4th
Cir. 2003). The election laws in North Carolina prior to House
Bill 589’s enactment encouraged participation by qualified
voters. But the challenged House Bill 589 provisions stripped
them away. The public interest thus weighs heavily in
Plaintiffs’ favor.
5
The district court seemingly failed to understand this
point. For instance, in ruling that reduction in early voting
was unlikely to cause irreparable harm to African American
voters, the district court noted that during the 2010 midterm
election, “the racial disparity in early-voting usage that was
observed in 2008 and 2012 all but disappeared.” McCrory, 997 F.
Supp. 2d at 372. In fact, the disparity was reduced from twenty
percent to three percent. Thus, the district court seemed to
believe that the injury to a smaller margin of African American
voters that would occur during a midterm election year would be
somehow less “irreparable.” That conclusion misapprehends the
irreparable harm standard and constituted an abuse of
discretion.
53
By contrast, balancing the hardships is not wholly
unproblematic for Plaintiffs. North Carolina will have little
time to implement the relief we grant. But for some of the
challenged changes, such as the elimination of same-day
registration, systems have existed, do exist, and simply need to
be resurrected. Similarly, counting out-of-precinct ballots
merely requires the revival of previous practices or, however
accomplished, the counting of a relatively small number of
ballots. 6
In conclusion, Plaintiffs have satisfied every element
required for a preliminary injunction as to their Section 2
claims relating to same-day registration and out-of-precinct
voting. 7 Accordingly, the district court abused its discretion
6
In Purcell, 549 U.S. 1, on which the dissenting opinion
relies, the Supreme Court seemed troubled by the fact that a
two-judge motions panel of the Ninth Circuit entered a factless,
groundless “bare order” enjoining a new voter identification
provision in an impending election. At the time of the “bare
order,” the appellate court also lacked findings by the district
court. By contrast, neither district court nor appellate court
reasoning, nor lengthy opinions explaining that reasoning, would
be lacking in this case.
7
By not addressing Plaintiffs’ constitutional claims, we do
not mean to suggest that we agree with the district court’s
analysis. But because we find that Plaintiffs are likely to
succeed on the merits under the Voting Rights Act, we need not,
and therefore do not, reach the constitutional issues.
54
in refusing to grant the requested injunctive relief as to those
provisions. 8
VI. Relief Granted
Appellate courts have the power to vacate and remand a
denial of a preliminary injunction with specific instructions
for the district court to enter an injunction. See, e.g., Elrod
v. Burns, 427 U.S. 347, 350 (1976) (affirming the Seventh
Circuit’s grant of a preliminary injunction the district court
had denied); Am. Civil Liberties Union of Ill. v. Alvarez,
679
F.3d 583, 608 (7th Cir. 2012) (reversing and remanding with
instructions to enter a preliminary injunction); Newsom ex rel.
Newsom v. Albemarle Cnty. Sch. Bd.,
354 F.3d 249, 252 (4th Cir.
2003) (vacating the district court’s order and remanding with
instructions to enter a preliminary injunction).
8
We respectfully disagree with the dissenting opinion that
our decision today will create any significant voter confusion.
The continuation of same-day registration and out-of-precinct
voting after today’s decision means more opportunity to register
and vote than if the entirety of House Bill 589 were in effect
for this election. Voters who are confused about whether they
can, for example, still register and vote on the same day will
have their votes counted. In this sense, our decision today
acts as a safety net for voters confused about the effect of
House Bill 589 on their right to vote while this litigation
proceeds.
55
For the many reasons above, we remand with instructions to
the district court to enter as swiftly as possible a preliminary
injunction granting the following relief:
• Part 16: House Bill 589’s elimination of Same-Day Voter
Registration, previously codified at G.S. 163-82.6A, is
enjoined, with the provisions in effect prior to House Bill
589’s enactment in full force pending the conclusion of a
full hearing on the merits;
• Part 49: House Bill 589’s elimination of Voting in
Incorrect Precinct, previously codified at G.S. 163-55, is
enjoined, with the provisions in effect prior to House Bill
589’s enactment in full force pending the conclusion of a
full hearing on the merits.
REVERSED IN PART, AFFIRMED IN PART, AND REMANDED
WITH INSTRUCTIONS TO ENTER A PRELIMINARY INJUNCTION
56
DIANA GRIBBON MOTZ, Circuit Judge, dissenting:
With great respect for my colleagues’ contrary views and
genuine regret that we cannot agree on the outcome of these
important cases, I dissent.
At the center of these cases are changes made by the North
Carolina General Assembly to the State’s election laws.
Plaintiff-Appellants and the United States moved the district
court to grant a preliminary injunction prohibiting the State of
North Carolina from enforcing many of the new laws. After
considering the evidence offered at a week-long hearing
(including the testimony of twelve witnesses and thousands of
pages of written material) and the extensive written and oral
legal arguments, the district court denied the motions. The
court explained its reasoning in a 125-page opinion and order.
Three sets of plaintiffs appealed; the United States did not.
The district court’s order is now before us, on interlocutory
appeal, less than five weeks before voters in North Carolina go
to the polls in a statewide general election.
Nothing in the record suggests that any dilatoriness by
either the parties or the court caused this unfortunate timing.
For, to give the important issues at stake here their due
required extensive preparation, including months of discovery by
the parties, and consideration and analysis by the district
court. But the fact of the timing remains. Appellants ask this
57
court to reverse the district court’s denial of relief, and to
grant a preliminary injunction requiring the State to revert to
abandoned election procedures for which the State maintains it
has not, and is not, prepared. For the reasons that follow, I
cannot agree that such extraordinary relief should issue.
I.
To obtain a preliminary injunction, a plaintiff must
establish that: (1) he is likely to succeed on the merits; (2)
he is likely to suffer irreparable harm in the absence of
preliminary relief; (3) the balance of equities tips in his
favor; and (4) an injunction is in the public interest. Winter
v. Natural Res. Def. Council, 555 U.S. 7, 20 (2008).
Critically, each of these four requirements must be satisfied.
Id. Moreover, a plaintiff must make a “clear” showing both that
he is likely to suffer irreparable harm absent relief and he is
likely succeed on the merits at trial. Id.; Real Truth About
Obama, Inc. v. Fed. Election Comm’n,
575 F.3d 342, 346 (4th Cir.
2009), vacated on other grounds,
559 U.S. 1089 (2010).
The majority emphasizes that unlawfully or
unconstitutionally depriving North Carolinians of the
opportunity to vote is an irreparable harm. I do not contend to
the contrary. But by the same token, the requested injunction
will require the State to halt the ongoing implementation of one
58
of its duly enacted statutes -- a statute that, for now at
least, has not been rendered invalid. As the Chief Justice
recently reminded us, this itself constitutes “a form of
irreparable injury.” Maryland v. King, 133 S. Ct. 1, 3 (2012)
(Roberts, C.J., in chambers).
Moreover, even a showing of irreparable harm does not,
without more, entitle a plaintiff to a preliminary injunction.
While we once permitted the mere presence of “grave or serious
questions for litigation” to tip the balance in the movant’s
favor, Rum Creek Coal Sales, Inc. v. Caperton, 926 F.2d 353, 363
(4th Cir. 1991), we have since recognized that this approach is
in “fatal tension” with the Supreme Court’s instruction in
Winter that all four factors must be independently satisfied.
Real
Truth, 575 F.3d at 346. Accordingly, no matter how likely
the irreparable injury absent an injunction, a plaintiff can
obtain a preliminary injunction only if he demonstrates a clear
likelihood of success on the merits, and the balance of equities
favors him, and the injunction is in the public interest.
Such plaintiffs comprise a small class. As the Supreme
Court explained in Winter, the grant of a preliminary injunction
is “an extraordinary remedy never awarded as of right.” 555
U.S. at 24; see also
id. at 32 (noting that even issuance of a
permanent injunction after trial “is a matter of equitable
discretion; it does not follow from success on the merits as a
59
matter of right.”). In a recent case, our en banc court
similarly recognized that the grant of such a remedy involves
“the exercise of a very far-reaching power, which is to be
applied only in [the] limited circumstances which clearly demand
it.” Centro Tepeyac v. Montgomery Cnty., 722 F.3d 184, 188 (4th
Cir. 2013) (en banc) (internal citation and quotation marks
omitted).
Our review of a district court’s denial of such an
“extraordinary remedy” is also highly deferential. We review
the grant or denial of a preliminary injunction for “abuse of
discretion.” Real Truth, 575 F.3d at 345-47. Under this
standard, we review the district court’s factual findings for
clear error. Pashby v. Delia,
709 F.3d 307, 319 (4th Cir.
2013). We review its “legal rulings de novo” but we review the
district court’s “ultimate decision to issue the preliminary
injunction for abuse of discretion.” Gonzales v. O Centro
Espirita Beneficente Uniao do Vegetal,
546 U.S. 418, 428 (2006).
Thus, as the Third Circuit has explained, an appellate court
“use[s] a three-part standard to review a District Court’s grant
of a preliminary injunction: we review the Court’s findings of
fact for clear error, its conclusions of law de novo, and the
ultimate decision to grant the preliminary injunction for abuse
of discretion.” Miller v. Mitchell,
598 F.3d 139, 145 (3d Cir.
2010).
60
While securing reversal of a denial of preliminary relief
is an uphill battle for any movant, Appellants face a
particularly steep challenge here. For “considerations specific
to election cases,” including the risk of voter confusion,
Purcell v. Gonzalez, 549 U.S. 1, 4-5 (2006), counsel extreme
caution when considering preliminary injunctive relief that will
alter electoral procedures. ∗ Because those risks increase “[a]s
an election draws closer,”
id. at 5, so too must a court’s
caution. Cf. Riley v. Kennedy,
553 U.S. 406, 426 (2008)
(“[P]ractical considerations sometimes require courts to allow
elections to proceed despite pending legal challenges.”).
Moreover, election cases like the one at hand, in which an
appellate court is asked to reverse a district court’s denial of
a preliminary injunction, risk creating “conflicting orders”
which “can themselves result in voter confusion and consequent
∗
Although the majority steadfastly asserts that the
requested injunction seeks only to maintain the status quo, the
provisions challenged by Appellants were enacted more than a
year ago and governed the statewide primary elections held on
May 6, 2014. Appellants did not move for a preliminary
injunction until May 19, 2014, almost two weeks after the new
electoral procedures had been implemented in the primary.
Moreover, regardless of how one conceives of the status quo,
there is simply no way to characterize the relief requested by
Appellants as anything but extraordinary. Appellants ask a
federal court to order state election officials to abandon their
electoral laws without first resolving the question of the
legality of those laws.
61
incentive to remain away from the polls.” Purcell, 549 U.S. at
4-5.
II.
Given the standard of review, and the Supreme Court’s
teaching on injunctive relief in the weeks before an election, I
cannot join the majority in reversing the judgment of the
district court.
My colleagues argue that we should reverse because, in
assessing the likelihood of Appellants’ success on the merits,
the district court articulated certain legal standards
incorrectly. Such a misstep, they assert, constitutes an abuse
of discretion and so requires reversal and grant of injunctive
relief. Usually an error of law does constitute an abuse of
discretion and does require reversal. But when reviewing the
denial of a preliminary injunction, an appellate court can find
an abuse of discretion requiring reversal only if the appellant
demonstrates that the corrected standard renders its likelihood
of success clear and establishes that the other requirements for
a preliminary injunction have been met.
In my view, Appellants have not done this here. That is,
Appellants have neither established a clear likelihood of
success on the merits, nor demonstrated, particularly at this
late juncture, that the balance of the equities and the public
62
interest weigh in their favor. Absent the required showing on
each of these elements, the district court’s “ultimate decision”
to deny preliminary relief was not an abuse of discretion.
O Centro, 546 U.S. at 428.
III.
Giving due deference, as we must, to the district court’s
findings of fact, Appellants have not established that the
district court abused its discretion in finding no clear
likelihood of their success on the merits. This is not to say
that I believe the district court’s legal analysis was without
error, only that Appellants have not shown that correcting the
errors would render clear their likelihood of success.
For instance, I am troubled by the court’s failure to
consider the cumulative impact of the changes in North Carolina
voting law. Specifically, the district court found that
prohibiting the counting of out-of-precinct provisional ballots
would not burden minority voters because early voting provides
“ample opportunity” for individuals “who would vote out-of-
precinct” to otherwise cast their ballot. North Carolina State
Conference of Branches of the NAACP v. McCrory, 997 F. Supp. 2d
322, 367 (M.D.N.C. 2014). That finding rests on the assumption
that eliminating a week of early voting still leaves minority
voters with “ample opportunity.” But the district court
63
discussed plaintiffs’ challenges to these two provisions without
acknowledging that the burden imposed by one restriction could
reinforce the burden imposed by others. Compare id. at 366-68
with
id. at 370-75. Similarly, the district court discussed
same-day registration,
id. at 46, without recognizing that
eliminating, in one fell swoop, preferred methods of both
registration and ballot casting has a more profound impact on
the opportunity to vote than simply eliminating one or the
other. Cf. Pisano v. Strach,
743 F.3d 927, 933 (4th Cir. 2014)
(“When deciding whether a state’s filing deadline is
unconstitutionally burdensome, we evaluate the combined effect
of the state’s ballot-access regulations.” (emphasis added)).
At this stage, however, I cannot conclude that correcting
these, or similar, errors requires the holding that Appellants
are clearly likely to succeed on the merits. The district
court’s factual findings about early voting and same-day
registration suggest Appellants’ evidence simply did not sway
the court. The court rejected as unpersuasive evidence offered
that constricting the early voting period assertedly would
create long lines at the polls, McCrory, 997 F. Supp. 2d at 372,
affect black voters disproportionately,
id., or cut down on
Sunday voting hours in the upcoming election.
Id. at 373. So
too with same-day registration: the district court rejected
Appellants’ assertions that eliminating same-day registration
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would cause registration rates among black North Carolinians to
drop. Id. at 350. Whatever the wisdom of these factual
findings, they are not clearly erroneous.
In short, had I been overseeing this case in the district
court, I might have reached a different conclusion about
Plaintiffs’ chances of success on the merits. But neither I nor
my colleagues oversaw this case and its 11,000-page record. Nor
did we consider the evidence and arguments produced in five days
of hearings. And though I share some of my colleagues’ concerns
about the district court’s legal analysis, those concerns do not
establish that plaintiffs have shown a clear likelihood of
success on the merits.
IV.
Further, Appellants have not shown that the balance of
equities and the public interest support issuance of the
preliminary injunction they seek. Any such showing would
require overcoming the burden the State faces in complying with
ordered changes to its election procedures and the risk of
confusing voters with dueling opinions so close to the election.
Election day is less than five weeks away, and other
deadlines loom even closer. In fact, for the many North
Carolina voters that have already submitted absentee ballots,
this election is already underway. The majority’s grant of
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injunctive relief requires boards of elections in North
Carolina’s 100 counties to offer same-day registration during
the early voting period and count out-of-precinct provisional
ballots -- practices for which neither the State nor the local
boards have prepared. See, e.g., Poucher Decl. 4, ECF No. 146-1
(“To have to revert back to conducting an election under the
prior statute would be confusing to [election] officials, and
again unfunded.”).
The majority suggests that the State exaggerates the burden
imposed on it, and that resurrecting past practices is a simple
matter. Perhaps. But the logistics of running an election seem
to me far more complex than my colleagues suggest. Poll workers
have been trained and polling centers have been equipped in
reliance on the procedures that governed the most recent
statewide primary. An injunction will render some of those
procedures a nullity. Additionally, it is undisputed that the
same-day registration system used in elections under the prior
law was administered electronically through an application
embedded within a comprehensive computer program. That
application was disengaged after the enactment of SL 2013-381,
and is now out of date. Reliable restoration of the application
in time for the general election is apparently impossible. For
this reason, the injunction will require the same-day
registration process to be manually administered by each county
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board, risking delays, errors, and general confusion. Thus,
while reverting to the old procedure may make for a simple
order, it will require substantial effort to effectuate in
practice.
In addition to the burden it places on the State, an about-
face at this juncture runs the very real risk of confusing
voters who will receive incorrect and conflicting information
about when and how they can register and cast their ballots.
Under North Carolina law, ensuring voters have the correct
information in a timely fashion is not just good policy, it is a
statutory mandate. See N.C. Gen. Stat. § 163-278.69 (a). The
State is required to send to every household a Judicial Voter
Guide “no more than 28 days nor fewer than seven days before”
early voting begins. Id. We were told at oral argument that
this Guide, and a timeline of important dates, have already been
printed and sent to every household in the State, and have been
made available on the State Board of Elections’ website. See
2014 General Election Judicial Voter Guide,
http://www.ncsbe.gov/ncsbe/Portals/0/FilesT/JudicialVoter
Guide2014.pdf (last visited Sept. 30, 2014). The majority’s
order renders this information inaccurate. For instance, the
current Guide lists a registration cut-off date of October 10
and instructs voters that they must vote in their proper
precinct.
Id. Moreover, the widespread dissemination of flat-
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out contradictory information undermines confidence in the
State’s ability to carry out orderly elections.
Recognizing the importance of avoiding confusion at the
polls, both we and the Supreme Court have deferred to a state’s
own assessment of when such confusion is likely to occur. See,
e.g., U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 834
(1995); Munro v. Socialist Workers Party,
479 U.S. 189, 195-96
(1986);
Pisano, 743 F.3d at 937. The majority downplays the
State’s concerns about confusion here, suggesting that the
effect of any confusion will be minimal. My colleagues see the
injunction as a “safety net” that will ensure that any confused
voters at least have the opportunity to cast a ballot. But this
assumes that those who may be confused by “conflicting orders”
will resist the “consequent incentive to remain away from the
polls.”
Purcell, 549 U.S. at 5. For “conflicting orders” cause
not only uncertainty about the status of particular voting
procedures, but also general frustration with and distrust of an
election process changed on the eve of the election itself.
In sum, to obtain a preliminary injunction, Appellants must
establish that the balance of hardships and public interest
weigh in their favor. I cannot conclude that they have done so
here.
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V.
Appellants will have the opportunity at trial to
demonstrate precisely how SL 2013-381 burdens voters in North
Carolina. And if Appellants can show that the multiple
provisions of that law work in tandem to limit voting
opportunities, I am confident that the district court will
consider the totality of that burden. A law that adopts a
“death by a thousand cuts” approach to voting rights is no more
valid than a law that constricts one aspect of the voting
process in a particularly onerous manner. But at this juncture,
in my view, Plaintiffs have not met the high bar necessary to
obtain the relief they seek. Accordingly, I respectfully
dissent.
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