THOMAS D. SCHROEDER, District Judge.
In these related cases, Plaintiffs seek a preliminary injunction pursuant to Federal Rule of Civil Procedure 65 barring Defendants from implementing various provisions of North Carolina Session Law 2013-381 ("SL 2013-381"), an omnibus election-reform law.
Plaintiffs include the United States of America (the "United States") in case 1:13CV861, the North Carolina State Conference of the NAACP and several organizations and individual plaintiffs (the "NAACP Plaintiffs") in case 1:13CV658, and the League of Women Voters of North Carolina along with several organizations and individuals (the "League Plaintiffs") in case 1:13CV660. Additionally, the court allowed a group of young voters and others (the "Intervenors") to intervene in case 1:13CV660. (Doc. 62 in case 1:13CV660.) Considered together, Plaintiffs raise claims under the Fourteenth, Fifteenth, and Twenty-Sixth Amendments to the United States Constitution as well as Section 2 of the Voting Rights Act of 1965 ("VRA"), 42 U.S.C. § 1973. (Doc. 1 in case 1:13CV861; Doc. 52 in case 1:13CV658; Docs. 1 & 63 in case 1:13CV660.) The United States also moves for the appointment of federal observers to monitor future elections in North Carolina pursuant to Section 3(a) of the VRA, 42 U.S.C. § 1973a(a). (Doc. 97 at 75-77.) Finally, Plaintiffs move to exclude and strike the testimony of three of Defendants' expert witnesses. (Docs. 146, 148, & 150.)
Defendants are the State of North Carolina, Governor Patrick L. McCrory, the State Board of Elections ("SBOE"), and several State officials acting in their official capacities. They contend that Plaintiffs have not stated any claims for which relief can be granted under either the Constitution or the VRA and, in any event, have not established entitlement to preliminary relief. (Docs. 94, 95 & 126.)
The court held a four-day evidentiary hearing and argument beginning July 7, 2014. The record is extensive. Throughout the proceedings, there was much debate over the policy merits of SL 2013-381 as an election law and the popularity and desirability of various voting mechanisms it affects. It is important to note that, while these have evoked strongly-held views, this is not the forum for resolving that aspect of the parties' dispute; such considerations are matters for legislative bodies to address. The jurisdiction of this court is limited to addressing the legal challenges raised based on the evidence presented to the court.
After careful consideration, the court concludes that Defendants' motion for judgment on the pleadings should be denied in its entirety. Plaintiffs' complaints state plausible claims upon which relief can be granted and should be permitted to proceed in the litigation. However, a preliminary injunction is an extraordinary remedy to be granted in this circuit only upon a "clear showing" of entitlement. After thorough review of the record, the court finds that as to two challenged provisions of SL 2013-381, Plaintiffs have not made a clear showing they are likely to succeed on the merits of the underlying legal claims. As to the remaining provisions, the court finds that even assuming Plaintiffs are likely to succeed on the merits, they have not demonstrated they are likely to suffer irreparable harm — a necessary prerequisite for preliminary relief — before trial in the absence of an injunction. Consequently, the motions for preliminary injunction and the United States' request for federal observers will be denied. This resolution renders the motions to exclude expert testimony moot.
The North Carolina General Assembly began consideration of a voter identification ("voter ID") requirement in March 2013. On March 12, the House Committee on Elections, chaired by Republican Representative David R. Lewis, held public hearings on voter ID. (See J.A. at 2388-92.)
The initial version of HB 589 was introduced in the House of Representatives on April 4. (J.A. at 2101-12.) The bill dealt almost exclusively with the implementation of a voter ID requirement beginning in 2016 in portions titled the "Voter Information Verification Act."
HB 589 advanced, as amended, from the various House committees, and was debated on the House floor on April 24, 2013. (J.A. at 2354, 2446-51.) After three amendments were adopted and six others rejected, the bill passed "second reading" on a roll-call vote of 80-36.
HB 589 was received in the North Carolina Senate the next day, passed first reading, and was assigned to the Senate
The night before the Rules Committee meeting, the new bill, now 57 pages in length, was posted for the members on the Rules Committee website.
At the committee meeting on July 23, Senator Apodaca allowed members of the public in attendance to speak for two minutes.
The following afternoon, on July 24, HB 589 was introduced on the floor of the full Senate. (Id. at 84.) During several hours of debate after the bill's second reading, Democratic Senators introduced and discussed several proposed amendments. Most significantly, Senator Josh Stein introduced an amendment to require the CBOEs to offer the same number of aggregate hours of early voting as were offered in the last comparable election (whether presidential or off-year). (Id. at 125-26.) This could be accomplished, he proposed, by CBOEs offering more hours at present sites, or by opening more sites. (Id. at 130-31.) Senator Stein argued that the amendment would reduce, but not eliminate, the impact the reduction of early-voting days would have on all voters, including African-Americans. (Id. at 111.) Senator Robert Rucho, the Republican sponsor of HB 589, asked the Senate to support Senator Stein's amendment (id. at 126), and it passed by a vote of 47 to 1 (id. at 131). The Senators also exchanged argument on many of the other challenged provisions, including voter ID, SDR, pre-registration, and the increase in allowable poll observers, as well as several provisions not at issue here (including the elimination of straight-ticket voting and reduction of various campaign-finance restrictions). (See generally id. at 148-223.) At the close of debate on July 24, Senator Apodaca objected to a third reading, effectively mandating that the debate of the bill be carried over into the next day. (Id. at 224.)
On July 25, the Senate began its session with the third reading of amended HB 589. (Id. at 229.) Senator Rucho then offered a bipartisan amendment, which passed 46 to 0; it clarified the aggregate-hours amendment and permitted a county to obtain a waiver from the aggregate-hours requirement upon unanimous approval of both the CBOE and the SBOE. (Id. at 232-33, 236, 241.) Proponents and opponents of the bill debated both its provisions and the merits of various amendments over the next four hours, and the Senate accepted an amendment dealing with electioneering from Senator Dan Blue (Democrat). (Id. at 307-08.) Several Senators characterized the bill as voter suppression of minorities. (E.g., id. at 251-60 (Sen. Stein), 282-93 (Sen. Blue), & 293-99 (Sen. Robinson).) At the close of debate fourteen amendments had been considered, and the Senate voted in favor of HB 589 along party lines, sending the bill back to the House for concurrence, as amended. (Id. at 325.)
With the end of the legislative session approaching, the House received the Senate's version of HB 589 that night. (J.A. at 2355.) At the beginning of a two-hour floor session starting at 7:45 p.m., Representative Henry M. Michaux, Jr. (Democrat) moved that the House form a Committee of the Whole
Two amendments offered by opponents (Sen. Blue's amendment of the date for electioneering; Sen. Rucho's and Stein's amendment altering several items, including the types of ID that can be presented for voting, and requiring the same number of hours of early voting) were adopted 109 to 0. (J.A. at 2511-15.) The provisions of the new full bill were then reviewed. (J.A. at 2516-31.) Each member of the House Democratic caucus present — including four of the five members who voted for the House version in April — were granted time to speak in opposition to the bill. (J.A. at 2571-73, 2580-81, 2581-83, 2592-93; Doc. 165 at 64-65 (testimony of Rep. Glazier).) Among other things, opponents characterized the measure variously as voter suppression, partisan, and disproportionately affecting at 2561 ("[O]ur anger tonight is palpable. Passage of this bill is a political call to arms."); 2563 ("the most pointedly, obviously politically partisan bill I've ever seen"); 2568 ("voter suppression"). On the Republican side, only Representative Lewis, the bill's primary House sponsor, spoke in support of the amended bill. (J.A. at 2620-24.) He pointed out, among other things, that the bill does not bar Sunday voting, does not reduce overall hours of early voting, provides for free photo ID, and, in his opinion, strengthens the requirements for absentee voting. (Id.) Subsequently, the House voted — again along party lines — to concur in the Senate's version of HB 589 at 10:39 p.m. (J.A. at 2369.)
The bill was ratified the next day and presented to Governor McCrory on July 29. (J.A. at 2355.) The governor signed SL 2013-381 into law on August 12, 2013. (Id.)
Almost immediately after SL 2013-381 became law, two of the instant cases were filed in this court. The NAACP Plaintiffs filed a complaint challenging the voter ID requirement, elimination of SDR, reduction of early-voting days, prohibition on counting out-of-precinct provisional ballots, and the expansion of poll observers and ballot challengers under Section 2 of the VRA and the Fourteenth and Fifteenth Amendments. (Doc. 1 in case 1:13CV658 ¶¶ 56-80, 82-119.) In an amended complaint, the NAACP Plaintiffs also challenge the elimination of pre-registration. (Doc. 52 ¶¶ 112, 130-32 in case 1:13CV658.) The League Plaintiffs initiated their case on the same day, challenging the elimination of SDR, prohibition on counting out-of-precinct ballots, elimination of the discretion of CBOEs to extend poll hours one hour on Election Day in "extraordinary circumstances," and the reduction in early-voting
On January 27, 2014, the court permitted a group of young voters and others to intervene as plaintiffs in case 1:13CV660 pursuant to Federal Rule of Civil Procedure 24(b). (Doc. 62 in case 1:13CV660.) Intervenors' complaint contends that the elimination of pre-registration, reduction in early voting, repeal of SDR, prohibition on counting out-of-precinct ballots, elimination of CBOE discretion to keep the polls open an extra hour on Election Day, and implementation of a voter ID requirement violate the Fourteenth and Twenty-Sixth Amendments. (Doc. 63 in case 1:13CV660.)
Pursuant to the scheduling order (Doc. 91), Plaintiffs filed motions for a preliminary injunction on May 19, 2014.
During a four-day evidentiary hearing on the pending motions beginning July 7, 2014, Plaintiffs presented nine live lay witnesses, two live expert witnesses, and one witness by video deposition, while Defendants rested on the record, which contains many more depositions and extensive expert reports. The court then allowed a full day of legal argument, including argument by counsel representing Judicial Watch, Inc., Allied Educational Foundation, and Christina Gallegos-Merrill, whom the court permitted to appear as amici curiae. (Doc. 136.) Post-hearing, the court allowed the parties to file hundreds of pages of deposition designations as well as supplemental briefing on the issue of standing and exclusion of Defendants' experts, bringing the total paper record in these cases to over 11,000 pages. The motions are now ripe for decision.
Ordinarily, the court would address a dismissal motion before turning to motions based on the evidence. However, because the court has determined that Plaintiffs have stated claims on their pleadings and
Intervenors are the only party challenging the repeal of pre-registration for 16- and 17-year-olds on Twenty-Sixth Amendment grounds.
To establish standing, a party must demonstrate three elements: (1) an "injury in fact," (2) a "causal connection between the injury and the conduct complained of," and (3) a likelihood that the injury would be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Plaintiffs sufficiently allege a causal connection and a likelihood of redressability; at issue is whether Intervenors have suffered an "actual or imminent" injury from the elimination of pre-registration, creating a particularized "injury in fact." Id. at 560, 112 S.Ct. 2130.
First, Intervenors contend that some of them are or will be imminently injured because they can no longer register voters through the pre-registration program following its repeal. (Doc. 159 at 3.) Defendants dispute that harm to an interest in registering voters can create legally cognizable injury and further assert that such harm is not present here because pre-registration — not registration — is at issue. (Doc. 168 at 4.)
Preventing an individual from registering others to vote has been recognized as a legally sufficient injury for the purpose of standing. In Coalition for Sensible and Humane Solutions v. Wamser, 771 F.2d 395 (8th Cir. 1985), an association dedicated to helping minority and low-income citizens register to vote sued the Board of Election Commissioners of St. Louis for refusing to allow their qualified volunteers to serve as deputy registration officials. The Eighth Circuit held that the association had standing to sue on behalf of its members because the Board of Election Commissioners injured individual association members "by preventing them from registering new voters." Id. at 399.
Id. at 170 (emphasis in original) (citations omitted). Read together, Wamser and P.O.W.E.R. indicate that an individual or association would not have standing to compel Defendants to allow a third party to conduct voter-registration drives but suffers a cognizable injury if they prevent the litigant him- or herself from registering voters.
Here, Intervenors allege and produced evidence that they pre-registered young voters in the past and would continue doing so had SL 2013-381 not eliminated that program. (Doc. 63 ¶ 10 in case 1:13CV660; Doc. 159-3 ¶¶ 5-6.) Although Defendants attempt to draw a distinction between registration and pre-registration, they fail to explain why any difference matters. Rather, pre-registration appears to be the functional equivalent of registration, except that 16- and 17-year-olds' applications wait in a "hopper" to be processed by the State upon eligibility. (Doc. 167 at 184.) Furthermore, harm to an interest in registering voters is not the only civic harm courts have recognized as sufficient for standing. See Lerman v. Bd. of Elections in City of N.Y., 232 F.3d 135, 141-43 (2d Cir.2000) (finding harm to an individual's interest in witnessing petition signatures legally cognizable). Based on the current allegations and evidence, Intervenors have sufficiently alleged standing to challenge the elimination of pre-registration because they allege that SL 2013-381 directly injures their interest in registering 16- and 17-year-olds.
Ordinarily, the standing inquiry would end here. However, Intervenors have moved to preliminarily enjoin the elimination of pre-registration, and whether they can demonstrate irreparable harm to justify an injunction depends in part on the scope of the harm they properly assert. So, the court must consider Intervenors' alternative bases for standing to the extent they rely on other claims of harm.
Intervenors contend that they will have to expend greater effort and resources to register young, 18-and-older voters because they were not pre-registered as 16- or 17-year-olds. (Doc. 159 at 4-5.) Defendants dispute this as a factual matter, arguing that there is no greater effort required to register an 18-year-old than a 16-year-old. (Doc. 168 at 6-7.)
Intervenors also contend that they will have to expend greater effort and resources to get out the vote because SL 2013-381 discourages young voters from voting. (Id. at 5-6.) Intervenors are not a political party or any other kind of organization, however. Intervenors, as individuals, do not have a direct, particularized interest in the outcome of an election like that of the Democratic Party, see Crawford v. Marion Cnty. Election Bd., 472 F.3d 949, 951 (7th Cir.2007), aff'd by 553 U.S. 181, 128 S.Ct. 1610, 170 L.Ed.2d 574 (2008), or of an association of candidates challenging incumbents, see Common Cause v. Bolger, 512 F.Supp. 26, 30 (D.D.C.1980). They have no budget from which resources must now be diverted to deal with the effects of SL 2013-381. Even assuming the truth of all Intervenors' factual allegations and evidence, therefore, they do not have standing on this ground.
Next Intervenors assert that SL 2013-381 harms their interest in living in a State that does not discriminate against young voters. (Doc. 159 at 6-7.) Under such a theory, any one of North Carolina's approximately 6.5 million registered voters would have standing to challenge the elimination of pre-registration. That injury is not sufficiently particularized to confer standing, and Intervenors' argument and authority do not indicate otherwise. Cf. Shaw v. Reno, 509 U.S. 630, 650, 113 S.Ct. 2816, 125 L.Ed.2d 511 (1993) (discussing the merits of the Fourteenth Amendment claim, not standing). Intervenors' attempt to ground standing in their support of a particular Democratic candidate similarly fails. (Doc. 159 at 7-9.)
Finally, Intervenors contend that they are "not require[d]" to "have standing independent from the original [P]laintiffs." (Id. at 9.) While that may be true as to claims that other Plaintiffs actually assert, here, no other Plaintiff has challenged the elimination of pre-registration as to all young voters. The circuits appear to be split on whether the jurisdictional rule requiring a party to have standing to bring a claim can be dispensed with entirely for Intervenors injecting new claims into the litigation. Cf. Shaw v. Hunt, 154 F.3d 161 (4th Cir.1998) (permissive Intervenors not required to have standing where they adopted plaintiffs' complaint and asserted no new claim); S.E.C. v. U.S. Realty & Improvement Co., 310 U.S. 434, 460, 60 S.Ct. 1044, 84 L.Ed. 1293 (1940) (intervenor had "a sufficient interest in the maintenance of its statutory authority and the performance of its public duties to entitle it through intervention to prevent [bankruptcy] reorganizations"); King v. Christie, 981 F.Supp.2d 296, 307 (D.N.J.2013) (noting circuit split on the question of whether an intervenor must have standing). Intervenors cite no Fourth Circuit case addressing the issue, nor has the court found one. Because Intervenors fail to allege any different harm should its position be correct, the court need not decide this issue at this stage; and, in light of the lack of Fourth Circuit precedent, the court declines to do so.
Issuance of a preliminary injunction is "an extraordinary remedy involving 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) (quoting Direx Israel, Ltd. v. Breakthrough Med. Corp., 952 F.2d 802, 811 (4th Cir.1991)); Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22, 24, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). This is true even when the asserted injury is a violation of the Constitution or the VRA. See, e.g., Centro Tepeyac, 722 F.3d at 187 (First Amendment claim); Perry-Bey v. City of Norfolk, 679 F.Supp.2d 655, 662 (E.D.Va. 2010) (VRA claim).
To demonstrate entitlement to preliminary relief, Plaintiffs must make a "clear showing" that (1) they are likely to succeed on the merits of their claims; (2) they are likely to suffer irreparable harm if an injunction does not issue; (3) the balance of the equities tips in their favor; and (4) an injunction is in the public interest. Winter, 555 U.S at 20, 22, 129 S.Ct. 365; Dewhurst v. Century Aluminum Co., 649 F.3d 287, 290 (4th Cir.2011). All four requirements must be satisfied in order for relief to be granted. Real Truth About Obama, Inc. v. Federal Election Comm'n, 575 F.3d 342, 346 (4th Cir.2009), vacated on other grounds by 559 U.S. 1089, 130 S.Ct. 2371, 176 L.Ed.2d 764 (2010). It is not enough that a plaintiff show a grave or serious question for litigation; he must make a "clear" demonstration he will "likely" succeed on the merits. Id. at 346-47.
The denial of a constitutional right, such as the right to vote, constitutes irreparable harm. Ross v. Meese, 818 F.2d 1132, 1135 (4th Cir.1987); United States v. Berks Cnty., 250 F.Supp.2d 525, 540 (E.D.Pa.2003). Because a trial on the merits is scheduled in these cases for July 2015, Plaintiffs and Intervenors must therefore make a clear showing that they will be irreparably harmed in connection with the November 2014 general election — the only scheduled election between now and the trial date.
The Supreme Court has long recognized that the right to vote is fundamental and preservative of all other rights in our republic. See Reynolds v. Sims, 377 U.S. 533, 561-62, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964) (citing Yick Wo v. Hopkins, 118 U.S. 356, 370, 6 S.Ct. 1064, 30 L.Ed. 220 (1886)). The Constitution's Elections Clause reserves to the States the general power to regulate "[t]he Times, Places and Manner of holding Elections for Senators and Representatives," subject to laws passed by Congress. U.S. Const. art. I § 4 cl. 1. "Common sense, as well as constitutional law, compels the conclusion that government must play an active role in structuring elections; `as a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes.'" Burdick v. Takushi, 504 U.S. 428,
Here, Plaintiffs challenge several provisions of SL 2013-381, individually and cumulatively. The statute contains a severability provision that would allow the court to enjoin portions without striking it wholesale.
In 2007, the General Assembly passed legislation permitting SDR at early-voting sites, which the governor signed into law effective October 9, 2007. 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 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 person elected 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 CBOE and SBOE 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)).
SL 2013-381 repealed the SDR provisions. Now, to be eligible to vote in any primary or general election, a voter must comply with preexisting law that requires that the registration be postmarked at least 25 days before Election Day or, if delivered in person or via fax or scanned document, received by the CBOE at a time established by the board. N.C. Gen.Stat. § 163-82.6(c)(1)-(2).
All Plaintiffs, including Intervenors, move to preliminarily enjoin SL 2013-381's elimination of SDR for the November 2014 election. Plaintiffs rely on four distinct legal theories: (1) racially discriminatory results under Section 2 of the VRA; (2) racially discriminatory intent under Section 2 and the Fourteenth and Fifteenth Amendments; (3) undue burden on the right to vote of all voters under the Fourteenth Amendment; and (4) unlawful denial or abridgment of the right to vote on account of age under the Twenty-Sixth Amendment. Each basis will be addressed in turn.
Section 2 of the original VRA provided that "[n]o voting qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color." 42 U.S.C. § 1973 (1976). In City of Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980), the Supreme Court held that plaintiffs were
42 U.S.C. § 1973(b).
"The essence of a § 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." Gingles, 478 U.S. at 47, 106 S.Ct. 2752. The Gingles Court noted that the Senate Judiciary Committee's majority Report that accompanied the amendment provided several factors that may be probative in establishing a Section 2 violation:
Id. at 36-37, 106 S.Ct. 2752 (quoting S.Rep. No. 97-417, pp. 28-29, 97th Cong. 2nd Sess. 28 (1982), 1982 U.S.C.C.A.N. 177, 206-207).
As other courts have noted, these factors were clearly designed with redistricting and other "vote-dilution" cases in mind. See Brown, 895 F.Supp.2d at 1245 n. 13; Miss. State Chapter, Operation Push v. Allain, 674 F.Supp. 1245, 1263 (N.D.Miss.1987), aff'd sub nom. Miss. State Chapter, Operation Push, Inc. v. Mabus, 932 F.2d 400 (5th Cir.1991); see also Daniel P. Tokaji, The New Vote Denial: Where Election Reform Meets the Voting Rights Act, 57 S.C. L.Rev. 689, 709 (2006) ("The legislative history of the 1982 amendments, however, provides little guidance on how Section 2 should apply to practices resulting in the disproportionate denial of minority votes."). In contrast, claims challenging voting procedures that disproportionately affect minority voters are referred to as "vote-denial" cases. See, e.g., Brown, 895 F.Supp.2d at 1244-45 ("Vote denial occurs when a state employs a standard, practice, or procedure that results in the denial of the right to vote on account of race." (quoting Johnson v. Governor of State of Fla., 405 F.3d 1214, 1227 n. 26 (11th Cir.2005) (en banc) (internal quotation marks omitted))).
Vote-denial claims under Section 2 have thus far been relatively rare, perhaps due in part to the fact that since 1965, many jurisdictions — including many North Carolina counties — were under federal control and barred from enacting any new voting procedure without first obtaining "pre-clearance" under Section 5 of the VRA from the DOJ or the United States District Court for the District of Columbia. 42 U.S.C. § 1973c(a). Under Section 5, the covered jurisdiction was required to show that the new provision would not "lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise." Reno v. Bossier Parish Sch. Bd., 520 U.S. 471, 478, 117 S.Ct. 1491, 137 L.Ed.2d 730 (1997) (quoting Beer v. United States, 425 U.S. 130, 141, 96 S.Ct. 1357, 47 L.Ed.2d 629 (1976)). The Supreme Court's 2013 decision in Shelby County, declaring the formula used to determine the "covered jurisdictions" under Section 5 to be unconstitutional, relieved several States, counties, and townships of the burden of submitting their voting changes to federal authorities to be pre-cleared.
These cases indicate that "a bare statistical showing of disproportionate impact on a racial minority does not satisfy the § 2 `results' inquiry.
In Frank v. Walker, ___ F.Supp.2d ___, 2014 WL 1775432 (E.D.Wis. Apr. 29, 2014), the court permanently enjoined enforcement of Wisconsin's voter ID law. Drawing from Gingles — although declining to apply the Gingles factors, which the court viewed as applicable only in the vote-dilution context — the court held that Section 2 plaintiffs "must show that the disproportionate impact results from the interaction of the voting practice with the effects of past or present discrimination and is not merely a product of chance." Id. at ___, at *31. After concluding that black voters disproportionately lacked IDs, the court found that the ID requirement interacted with historical conditions of discrimination in housing, employment, and other areas to cause an additional barrier to be placed in the path of black voters. Id. at ___-___, at *32-33. Thus, the voter ID provision violated Section 2.
The Brown court's formulation accurately captures the Section 2 results inquiry: whether the current electoral law interacts with historical discrimination and social conditions to cause black voters to have unequal access to the polls.
North Carolina also has an unfortunate history of official discrimination in voting and other areas that dates back to the Nation's founding. See, e.g., Gingles v. Edmisten, 590 F.Supp. 345, 359-61 (E.D.N.C.1984), aff'd in part and rev'd in part by Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986); (see also J.A. at 1036-92 (report of Dr. Lorraine C. Minnite).). This experience affects the perceptions and realities of black North Carolinians to this day.
Plaintiffs' historical evidence in these cases focuses largely on racial discrimination that occurred between a quarter of a century to over a century ago. However, as the Supreme Court recently stated, "history did not end in 1965." Shelby Cnty., 133 S.Ct. at 2628. In the period between the enactment of the VRA and 2013, "voting tests were abolished, disparities in voter registration and turnout due to race were erased, and African-Americans attained political office in record numbers." Id. The record reflects such progress in North Carolina, too. Plaintiffs' expert, Dr. Barry C. Burden, indicates that black North Carolinians have reached "parity" with whites in turnout for presidential elections. (J.A. at 1100.) And Dr. Charles Stewart III concludes that "[t]he registration rate of African-Americans has surged in North Carolina since 2000, to the point that the registration rate of African Americans now exceeds that of whites," a development he characterizes as "significant."
The present cases are distinguishable in important respects, however. The Mississippi system had led to a large disparity in registration between black and white voters, and the court found that the valid registration rate for whites remained approximately 25 percentage points above that for blacks. Id. at 1254. Thus, the discriminatory results of the lingering dual-registration system were clear — fewer black than white Mississippians were able to register to vote over a long period, magnifying the effect of the system. Also, the dual-registration system had been in effect to varying degrees for almost 100 years, propagating its effects even further, and the court found that the challenged statutes did not advance or relate rationally to any substantial or legitimate governmental interest. Id. at 1260-61. In fact, at the time of the decision Mississippi was the only State maintaining such a dual-registration scheme. Id. at 1252. Finally, Operation Push was decided in 1987, not long after Mississippi had engaged in official disenfranchisement of black would-be voters. Here, voting-age blacks in North Carolina maintain a higher current registration rate than whites, black registration rates continued to make significant increases in the seven years before the adoption of SDR (J.A. at 804, Table 2 (noting an increase of black registered voters from 988,134 to 1,116,818 in the period from 2000 to 2006)), and SDR existed for only three federal election cycles (six years) before it was repealed by SL 2013-381.
Additionally, the high registration rate of black North Carolinians — 95.3%, some 7.5 percentage points above that of whites — suggests strongly that black voters will not have unequal access to the polls. Plaintiffs point to Dr. Stewart's conclusion that SL 2013-381 would have affected 3% of the 2012 African-American registrants if it had then been in effect. (J.A. at 789.) From this, Plaintiffs predict that without SDR, North Carolina will experience a similar reduction in black registrants. But this prediction appears to ignore important considerations.
Particularly, Plaintiffs have not shown that African-American voters in 2012 lacked — or more importantly, that they currently lack — an equal opportunity to easily register to vote otherwise. For example, under current law, every State resident can register to vote by mail. See N.C. Gen.Stat. § 163-82.6(a) ("The county board of elections shall accept any form described in [N.C. Gen.Stat. § ]163-82.3 if the applicant submits the form by mail, facsimile transmission, transmission of a scanned document, or in person."). Thus,
Furthermore, because Section 2 does not incorporate a "retrogression" standard, the logical conclusion of Plaintiffs' argument would have rendered North Carolina in violation of the VRA before adoption of SDR simply for not having adopted it. Yet, neither the United States nor the private Plaintiffs have ever taken the position that a jurisdiction was in violation of Section 2 simply for failing to offer SDR. Indeed, "[e]xtending Section 2 that far could have dramatic and far-reaching effects," Irby, 889 F.2d at 1358, placing the laws of at least 36 other states which do not offer SDR in jeopardy of being in violation of Section 2.
Brown, 895 F.Supp.2d at 1254 (quoting Jacksonville Coal. for Voter Protection v. Hood, 351 F.Supp.2d 1326, 1335-36 (M.D.Fla.2004)). Rather, the court clarified, it "must consider whether the State of Florida, having decided to allow early voting, has adopted early voting procedures that provide equal access to the polls for all voters in Florida." Id. at 1254-55 (emphasis in original). Similarly here, the court is not concerned with whether the elimination of SDR will "worsen the position of minority voters in comparison to the preexisting voting standard, practice, or procedure," id. at 1251 (internal quotation marks omitted) — a Section 5 inquiry, but whether North Carolina's existing voting scheme (without SDR) interacts with past discrimination and present conditions to cause a discriminatory result.
Moreover, in the National Voter Registration Act of 1993 ("NVRA"), Congress explicitly sanctioned a State's power to set a registration cut-off of 30 days before an election. 42 U.S.C. § 1973gg-6(a)(1).
Finally, Plaintiffs argue that Defendants' stated policy underlying elimination of SDR is tenuous, noting that supporters expressed concern for providing "integrity of the voting process" to ensure that votes "be protected and not negated by fraud." (J.A. at 2516-17.) To be sure, a free-standing claim of "electoral integrity does not operate as an all-purpose justification flexible enough to embrace any burden." McLaughlin v. N.C. Bd. of Elections, 65 F.3d 1215, 1228 (4th Cir.1995) (quoting Republican Party of Ark. v. Faulkner Cnty., 49 F.3d 1289, 1299 (8th Cir.1995) (internal quotation marks omitted)). But here there is more in the legislative record. During the Senate Rules Committee debate on the challenged SDR provision, Senator Rucho contended:
(Doc. 134-4 at 45.) Later, during the second reading, he added:
(Id. at 87.) Defendants have presented evidence in support of this interest.
Plaintiff's witness, Gary Bartlett (SBOE Executive Director from 1993 to 2013), acknowledged at the hearing that under SDR, CBOEs sometimes lacked sufficient time to verify registrants under State law.
The State has an interest in closing the voter rolls at a reasonable time before Election Day. In Marston v. Lewis, 410 U.S. 679, 681, 93 S.Ct. 1211, 35 L.Ed.2d 627 (1973), the Supreme Court held that "it is clear that the State has demonstrated that [a] 50-day voter registration cut-off (for election of state and
Plaintiffs argue that SDR is actually more reliable than traditional registration because CBOEs are less likely to deny voters who registered during early voting than those who registered before the 25-day cut-off. But as their own witness, Director Bartlett, demonstrated, this argument ignores the fact that with SDR over a thousand voters have had their votes counted without being properly verified by the CBOEs. Current SBOE Director, Kim Strach, testified that this concern was recently validated when improper and unverified votes cast as a result of SDR tainted the outcome of a municipal election in the town of Pembroke in November 2013 and caused the SBOE to issue an order to conduct an entirely new election. (Doc. 126-1 ¶ 28; Doc. 161-9 at 48.)
Plaintiffs' argument, therefore, fails to rebut Defendants' point. It is sufficient for the State to voice concern that SDR burdened CBOEs and left inadequate time for elections officials to properly verify voters before the canvass and that unverified votes were counted as a result. In fact, the State has more than an interest in allowing time for verification — it has a duty to ensure that unverified voters do not have their votes counted in an election. Thus, to the extent this Gingles factor applies here, the court finds that the State's asserted justification for the repeal of SDR is not tenuous. Plaintiffs' further contention that these unverified voters nevertheless represent a low level of possible fraud in view of the nearly half a million people who use SDR does not somehow render the State's interest tenuous. Cf. Florida, 885 F.Supp.2d at 355-56. Whether other — arguably better — policy solutions exist to address the problem is for elected officials, not the courts, to decide.
For all these reasons and considering the complete record, the court finds that Plaintiffs have not shown a likelihood of success on the merits of their claim that current North Carolina law (without SDR) interacts with current conditions and historical discrimination to result in an inequality of opportunity for African-Americans to exercise their right to vote in violation of Section 2 of the VRA. The motion for preliminary injunction on this basis will be denied.
The showing of intent required to prove a violation of Section 2 is the same as that required to establish a violation of the Fifteenth Amendment and the Fourteenth Amendment's Equal Protection Clause. See Charleston Cnty., 316 F.Supp.2d at 272 n. 3 (citing Garza, 918 F.2d at 766); cf. Reno, 520 U.S. at 481, 117 S.Ct. 1491 ("Since 1980, a plaintiff bringing a constitutional vote dilution challenge, whether under the Fourteenth or Fifteenth Amendment, has been required to establish that the State or political subdivision acted with a discriminatory purpose."). The analysis to follow, therefore, applies to the Section 2 claim as well as to Plaintiffs' claims under the Fourteenth and Fifteenth Amendments.
In Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 265-66, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977), the Supreme Court held that discriminatory intent is established where a plaintiff proves that racial discrimination was a "motivating factor" in the governing body's decision. See also Reno, 520 U.S. at 488, 117 S.Ct. 1491; Brown, 895 F.Supp.2d at 1245-46. "Determining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available." Arlington Heights, 429 U.S. at 266, 97 S.Ct. 555. The Court instructed that whether the impact of the action "bears more heavily on one race than another" is "an important starting point." Id. (quoting Washington v. Davis, 426 U.S. 229, 242, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976)). Next, the court should consider "[t]he historical background of the decision ... particularly if it reveals a series of official actions taken for invidious purposes." Id. at 267, 97 S.Ct. 555. "The specific sequence of events leading up to the challenged decision also may shed some light on the decisionmaker's purposes." Id. This includes departures from the normal legislative procedure as well as substantive departures, "particularly if the factors usually considered important by the decisionmaker strongly favor a decision contrary to the one reached." Id. Also relevant are "[t]he legislative or administrative history ... especially where there are contemporary statements by members of the decisionmaking body, minutes of its meetings, or reports." Id. at 268, 97 S.Ct. 555. The Supreme Court did not purport to establish a conclusive list of factors in Arlington Heights, and other factors, particularly the nature and weight of the State interest involved, may be specifically relevant to a claim of discriminatory intent. See, e.g., Florida, 885 F.Supp.2d at 348, 355; Terrazas v. Clements, 581 F.Supp. 1329, 1347 (N.D.Tex.1984).
As to the first factor and as discussed above, the enactment of SL 2013-381's elimination of SDR will bear more heavily on African-Americans than whites because the former disproportionately took advantage of SDR. As in Brown, however, the disparate impact is softened by the
As for the historical background of the decision, Plaintiffs contend that it "was not lost on the members of the General Assembly" that, prior to SL 2013-381, North Carolina's decade of State action liberalizing election laws "had succeeded in dramatically increasing overall voter turnout in North Carolina, and had increased African-American voter participation in particular." (Doc. 98-1 at 61.) Plaintiffs argue that race data was offered by opponents to HB 589 during debate on the bill (id.) and that the "marked upward trend in black voter registration and turnout was well-known and widely discussed by local media sources and in public hearings of the House Elections Committee, as well as documented in SBOE data" (Doc. 97 at 65).
There is evidence that at its initiation — before any indication of how it would be used by any minority group — SDR was a partisan issue insofar as it was passed by a Democratically-controlled General Assembly on a near-party line vote and was signed into law by a Democratic governor. (J.A. at 1209 (report of Dr. Kousser), 2643-44.) When Republicans gained control of the legislature and the governorship in 2013, they moved to repeal SDR. During debate on HB 589, while asserting its disproportionate impact on blacks, some opponents of the bill nevertheless attributed the supporters' motivation to partisanship. (See, e.g., J.A. at 2563 (statement of Representative Hall that the bill was "the most pointedly, obviously politically partisan bill [he had] ever seen"); 1109 (report of Dr. Burden, noting that "[a]ll evidence indicates that SL 2013-381 was enacted primarily for political gain...").)
To be sure, a partisan motive does not preclude or excuse the existence of a racial motivation. While "[r]arely can it be said that a legislature or administrative body operating under a broad mandate made a decision motivated solely by a single concern," "racial discrimination is not just another competing consideration." Arlington Heights, 429 U.S. at 265, 97 S.Ct. 555. "Protecting incumbency and safeguarding the voting rights of minorities are purposes often at war with each other," and racial animus in this context need not be "based on any dislike, mistrust, hatred or bigotry." Garza, 918 F.2d at 778 (Kozinski, J., concurring in part and dissenting in part). But the fact that a bill reverses prior practice does not itself constitute impermissible intent. This is especially true not only where evidence suggests
Plaintiffs also argue that the sponsors of HB 589 sought data from the SBOE on the potential racial impact of some of its provisions, but the evidence is sparse as to SDR. Plaintiffs note that on March 5, 2013, the various House sponsors of HB 589 sent an email to the SBOE 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." (J.A. at 1713.) This evidence seems to relate only to the voter ID provisions then under consideration. The legislators additionally stated that they "would need to have that subset broken down into different categories within each county by all possible demographics that [the SBOE] typically captures (party affiliation, ethnicity, age, gender, etc.)." (Id.) The SBOE sent the data in a large spreadsheet the next day. (J.A. at 1714-81.) On March 28, Representative Lewis sent a ten-page letter to Director Bartlett containing nearly 100 numbered inquiries regarding the SBOE's January 2013 conclusion that 612,955 registered voters lacked a qualifying photo ID. (J.A. at 3128-37.) One of the inquiries mentioned race, asking the SBOE to "provide the age and racial breakdown for voters who do not have a driver's license number listed." (J.A. at 3131.) On April 11, Director Bartlett sent a 19-page response with an attached spreadsheet that included the requested race data. (J.A. at 3148-66.) That same day, the Speaker's general counsel emailed the SBOE, asking for additional race data regarding people who requested absentee ballots in 2012 (J.A. at 3234), which was provided (J.A. at 3235-46).
As to SDR, Kim Strach emailed some data to Representative Lewis, one of the bill's House sponsors, on July 25, the day of the House concurrence vote. (J.A. at 3265.) This data included the verification rates for SDR in the 2010 and 2012 elections and information about the type of IDs presented by same-day registrants. (J.A. at 3267-84.) It also included spreadsheets that contain race data for individual same-day registrants and whether those registrants were verified. (J.A. at 3278, 3280.) This was the same data that Defendants relied upon during the preliminary injunction hearing to demonstrate that SDR resulted in the counting of over a thousand ballots of voters who were never properly verified. Thus, as to SDR, there is little evidence from which to infer that the General Assembly's course of action was based on research of the racial effect or implications of its repeal.
Plaintiffs also argue that the General Assembly proceeded to pass the bill even after opponents cited the disproportional use of SDR by black North Carolinians. Plaintiffs rely on a declaration from Senator Stein stating that during Senate debate he emphasized that in 2012 nearly 100,000 people registered with SDR, and that 34% were minority. (J.A. at 190.) The Senate transcript reveals that Senator Stein mentioned the first figure but not the minority participation; however, he did refer to SL 2013-381 several times as "disproportionately affect[ing] minorities."
While Plaintiffs rely heavily on these facts to establish improper intent, the United States also argues that the court should infer improper intent from the General Assembly's failure to solicit expert opinions about the impact of the changes. (Doc. 166 at 219.) Cf. Brown, 895 F.Supp.2d at 1248 (noting plaintiffs' urging to infer intent from the Florida legislature's failure to conduct any study or analysis of the effect the changes prior to amending the statute). When the court asked during the hearing if it would have been better or worse not to have asked for any race data, the United States responded that "[i]t would be just an additional factor to consider." (Id. at 219-20.) Consequently, Plaintiffs' effort to simultaneously rely on the presence and absence of race information presents a challenge.
Discriminatory purpose "implies more than intent as volition or intent as awareness of consequences." Personnel Adm'r of Mass. v. Feeney, 442 U.S. 256, 279, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979). "It implies that the decisionmaker ... selected or reaffirmed a particular course of action at least in part `because of,' not merely `in spite of,' its adverse effects upon an identifiable group." Id. To infer from the opponents' objections that the General Assembly passed the bill because of the objections is difficult on this record. This is especially true where some of the contemporaneous legislative criticism eschewed any improper intent. (See, e.g., Doc. 134-4 at 204 (statement of Sen. Bryant clarifying that he was not trying to accuse Republicans of being racist, but only stating that the bill would have a racial impact regardless of its purpose).
The next factor is "[t]he specific sequence of events leading up to the challenged decision," including whether the decision was a "[d]eparture[] from the normal procedural sequence" or if "factors usually considered important ... would strongly favor" a contrary decision. Arlington Heights, 429 U.S. at 267, 97 S.Ct. 555. Plaintiffs describe the procedure used in the passage of SL 2013-381 as "irregular," "highly expedited," and "unorthodox." (Doc. 98-1 at 62.) Particularly, they note that (1) the original version of HB 589 that left the House of Representatives in April concerned only voter ID; (2) the Senate took no action on HB 589 until
A reading of the complete legislative record reveals that, although the procedural path of the bill left room for criticism by opponents, any inference of impermissible intent is marginal. As Plaintiffs must concede, the General Assembly complied with all of its rules during the passage of SL 2013-381. (See Doc. 164 at 28-29 (statement of United States' counsel).) No one raised a point of order. Moreover, testimony established that the process known as "gut-and-amend" used to transform the voter ID bill into the omnibus bill that became SL 2013-381 is not uncommon in the General Assembly. (Id. at 133 (testimony of Senator Dan Blue, an opponent of the bill, acknowledging that gut-and-amend happens "quite a bit" and "too often" in the General Assembly).) Such a process occurs because the General Assembly must meet a "cut-off" date — known as the "cross-over date" — by which a piece of legislation must be approved by one House lest it die for the remainder of the session. (Id. at 131-33.) Plaintiffs' legislator-witnesses admitted that it is not uncommon for a bill to return to its originating house with significant material not originally part of the bill. (Id. at 133; Doc. 165 at 85-88 (testimony of Rep. Glazier).) In this regard, Plaintiffs' real contention seems to be that the process for HB 589 was unusual for a bill having the significance they contend it did and the majority's failure to give deference to existing political relationships with those on the other side of the aisle. (See Doc. 165 at 67 (testimony of Rep. Glazier: "I was shocked by it, not by, in some respects, some of the provisions, but by the — and, again, my comments on the floor that night made it clear — by the process"), 69 ("[t]he process this bill got was nothing more than what we give to a golf cart bill"); J.A. 179 ¶ 3 (declaration of Sen. Stein describing the Senate proceedings as "irregular for a bill of this magnitude").)
The fact that the Senate acted after Shelby County favors Plaintiffs, but it does not bear the full significance that they attribute to it. That decision greatly altered the burden of proof calculus for a legislative body considering changes to voting laws. It would not have been unreasonable for the North Carolina Senate to conclude that passing the "full bill" before Shelby County was simply not worth the administrative and financial cost of seeking permission from the United States. Proponents were aware that — as opponents sharply reminded them during debate — they were still obliged to comply with Section 2 and the Constitution. (Doc. 134-4 at 153, 192.)
Plaintiffs' contention that only one legislator spoke in favor of the bill is inaccurate.
Plaintiffs further rely on the fact that the House voted to concur in the Senate's changes without forming a Committee of the Whole or referring the bill to another committee. The record establishes that forming a Committee of the Whole is quite rare. As noted, Representative Moore stated that "[i]t would be pointless to do so, because the Committee of the Whole would be the entire House sitting as a Committee and then later simply sitting as the House." (J.A. at 2507-08.) Defendants also adduced evidence during the hearing that previous Democratically-controlled majorities of the General Assembly returned politically-sensitive bills for concurrence as to extensive changes without referring the substitute bill to a committee.
The Senate debated the bill over two separate sessions and a Rules Committee meeting, debated over a dozen amendments and added several (including two by Democrats), and each opponent was given the floor and sufficient time to speak and explain his or her objections. The Senate also granted time to adjourn between debate to allow members to caucus and consider further amendments. (Doc. 134-4 at 123-25.) At the end of the Senate debate, Senator Nesbitt — a strong opponent of the bill — stated "[w]e've had a good and thorough debate on this bill over two days," and "I think we've reviewed the bill in great detail." (Id. at 315-16.) When the bill returned to the House, every opponent was given time to speak, some were given extensions, and many did not even use their full allotment of time. (J.A. at 2615.) While the proceedings moved quickly, the court cannot say that it is uncommon for a controversial bill to be passed near the end of a legislative session.
As for the remaining procedural argument, Plaintiffs point to the fact that the bill expanded to 57 pages before the Rules Committee meeting. This is a significant difference. However, a review of the bill reveals that apart from the original voter ID provisions, a significant portion of those 57 pages consisted of existing law. Moreover, several component parts — including the reduction of early voting and elimination of SDR — had been included in other bills introduced in the House and Senate around the same time as the original HB 589.
Arlington Heights also instructs the court to consider the legislative history of the decision, especially "contemporaneous statements by members of the decisionmaking body, minutes of its meetings, or reports." 429 U.S. at 268, 97 S.Ct. 555. Much of this has been addressed in the preceding discussion regarding the debate of the bill. Plaintiffs have not identified any comment, and the court has found none, of a racial nature by any supporter of the bill during the legislative process.
Plaintiffs argue that the State invented post-hoc rationales to defend the provisions of SL 2013-381. To be sure, "in some circumstances it is reasonable to infer discriminatory intent based on evidence of pretext." Florida, 885 F.Supp.2d at 355. As to SDR, however, the principal interest the State asserts in this litigation — the verification problem described above — had been identified by the SBOE in 2009 and was raised more than once by Senator Rucho. (J.A. at 1533; Doc. 134-4 at 45, 87.) The legislative record and the evidence presented at the hearing falls short of demonstrating that Senator Rucho's proffered reason likely was not the General Assembly's actual reason for eliminating SDR.
In the totality of the circumstances, Plaintiffs' evidence that the General Assembly acted at least in part with discriminatory animus certainly raises suspicions and presents substantial questions. But it is opposed with at least equally compelling evidence that the lawmakers acted rather for a legitimate State interest. In this circuit, Plaintiffs must demonstrate more than "only a grave or serious question for litigation"; they must "clearly demonstrate that [they] will likely succeed on the merits." Real Truth About Obama, 575 F.3d at 347 (emphasis in original). Where such competing evidence exists, especially where Defendants have presented evidence that the State interest was eliminating a practice that permitted (if not encouraged) a not insignificant number of unverified ballots to be counted, the court cannot say at this preliminary stage that it is likely that racial animus was a motivating factor for the General Assembly's elimination of SDR. See Charleston Cnty., 316 F.Supp.2d at 306 (declining to determine that invidious discrimination was a motivating factor where South Carolina county's decision to institute an at-large voting system "might reasonably be explained in the context of either of the historical explanations advanced by Plaintiffs and Defendants,
The private Plaintiffs have asserted Fourteenth Amendment claims under the line of Supreme Court Equal Protection cases specifically applicable to voting restrictions. In Harper v. Virginia State Board of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966), the Court struck down Virginia's poll tax in State elections as violative of the Equal Protection Clause. In so doing, the majority hinted that because voting is a fundamental right, strict scrutiny applies to all State restrictions on that right. See id. at 670, 86 S.Ct. 1079. However, later decisions established that, because "[e]lection laws will invariably impose some burden upon individual voters," they are subjected to strict scrutiny only when they impose a "severe" burden. Burdick, 504 U.S. at 433-34, 112 S.Ct. 2059. Two freedom-of-association cases, Burdick and Anderson v. Celebrezze, 460 U.S. 780, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983), established a balancing test for election laws that do not severely burden First and Fourteenth Amendment rights.
Burdick, 504 U.S. at 434, 112 S.Ct. 2059 (quoting Anderson, 460 U.S. at 789, 103 S.Ct. 1564).
In Crawford v. Marion County Election Board, 553 U.S. 181, 128 S.Ct. 1610, 170 L.Ed.2d 574 (2008), the Court extended the Anderson-Burdick balancing test outside the context of the First Amendment and applied it to State election procedures as a whole. In upholding Indiana's voter ID law, the plurality stated that "however slight [a] burden may appear ... it must be justified by relevant and legitimate state interests `sufficiently weighty to justify the limitation.'" 553 U.S. at 191, 128 S.Ct. 1610 (plurality opinion) (quoting Norman v. Reed, 502 U.S. 279, 288-89, 112 S.Ct. 698, 116 L.Ed.2d 711 (1992)). Justice Scalia, joined by Justices Thomas and Alito, agreed that the Anderson-Burdick framework applied to the voter ID law. Id. at 204-05, 128 S.Ct. 1610 (Scalia, J., concurring in the judgment).
Thus, the court first must determine whether the burden imposed by SL 2013-381's elimination of SDR is severe. If it is, it must be "narrowly drawn to advance a state interest of compelling importance." Burdick, 504 U.S. at 434, 112 S.Ct. 2059 (quoting Norman, 502 U.S. at 289, 112 S.Ct. 698). Otherwise, if a law "imposes only `reasonable, nondiscriminatory restrictions' upon [voters' Fourteenth Amendment rights], `the State's important regulatory interests are generally sufficient to justify' the restrictions." Id. (quoting Anderson, 460 U.S. at 788, 103 S.Ct. 1564). Under this framework, the court must balance North Carolina's precise interests against the burden imposed by the elimination of SDR.
Plaintiffs' claims under this test are not based on race, but on their right to vote generally. (Doc. 167 at 122.) Plaintiffs do not argue that strict scrutiny applies in this case and thus concede that the repeal of SDR does not create a severe burden on the right to vote. In any event, the Court essentially resolved this question in Crawford. The plurality recognized that "[f]or most voters who need them, the inconvenience of making a trip to the [Bureau of Motor Vehicles], gathering the required documents, and posing for a photograph surely does not qualify as a substantial burden on the right to vote, or even represent a significant increase over the usual burdens of voting." 553 U.S. at 198, 128 S.Ct. 1610 (plurality opinion). Even though the plurality recognized that the requirements may create a special burden for some voters, it found that it is unlikely the voter ID law "would pose a constitutional problem unless it is wholly unjustified." Id. at 199, 128 S.Ct. 1610. The burden imposed by the repeal of SDR — that is, the requirement that voters register at least 25 days before Election Day — is even less than the one at issue in Crawford. This is particularly true because voters may register without making a trip anywhere; they simply must mail the proper form to their CBOE along with a copy of a HAVA-compliant ID. See id. at 205, 128 S.Ct. 1610 (Scalia, J., concurring in the judgment) ("Ordinary and widespread burdens, such as those requiring `nominal effort' of everyone, are not severe)." (quoting Clingman v. Beaver, 544 U.S. 581, 591, 125 S.Ct. 2029, 161 L.Ed.2d 920 (2005)). Thus, the Anderson-Burdick framework is applicable here.
It is equally clear that, under Crawford, a requirement to register 25 days before Election Day constitutes a "reasonable,
Here, the slight burden imposed by the 25-day cut-off is more than justified by the State's important interest in detecting fraud and ensuring that only properly verified voters have their votes counted at the canvass. See supra Part III.B.1-2. While the removal of the SDR option will affect some voters more than others, this is not the standard upon which voting regulations are judged under Anderson-Burdick. As Justice Scalia explained in Crawford, "[t]he Indiana law affects different voters differently, but what petitioners view as the law's several light and heavy burdens are no more than the different impacts of the single burden that the law uniformly imposes on all voters." 553 U.S. at 205, 128 S.Ct. 1610 (citations omitted). Supreme Court precedents "refute the view that individual impacts are relevant to determining the severity of the burden it imposes." Id. For example, the write-in ballot prohibition in Burdick was upheld despite the fact that it entirely deprived the plaintiff of his right to vote for his candidate of choice.
Under this standard, the burden imposed by elimination of SDR is slight — much less severe than the burden created by the voter ID law at issue in Crawford. As Defendants have articulated an important interest directly served by the elimination of SDR — not counting votes of those whose registrations have not been properly verified — the court finds that Plaintiffs have not demonstrated a likelihood of success on the merits on this portion of their Anderson-Burdick claim.
Intervenors challenge the elimination of SDR under the Twenty-Sixth Amendment, which provides that "[t]he right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age." Because the elimination of SDR allegedly impacts voters in the 18- to 24-year-old age bracket disproportionally, Intervenors urge the court to apply the Arlington Heights framework to a claim of age discrimination in voting under the Twenty-Sixth Amendment. While it is true that the Twenty-Sixth Amendment was patterned after the Fifteenth, see Walgren v. Howes, 482 F.2d 95, 101 (1st Cir.1973), no court has ever applied Arlington Heights to a claim of intentional age discrimination in voting. Nor has any court considered the application of the Twenty-Sixth Amendment to the regulation of voting procedure, such as the decision whether to offer SDR. Thus, Intervenors' Twenty-Sixth Amendment arguments present an issue of first impression in the federal courts.
However, it is unnecessary to decide at this stage whether Intervenors are likely to succeed on this novel claim. Unlike the Twenty-Sixth Amendment cases cited to the court, Intervenors do not proceed as a class, but rather as ten individuals. Cf. Walgren v. Bd. of Selectmen of Town of Amherst, 373 F.Supp. 624, 625 (D.Mass.1974), aff'd by 519 F.2d 1364 (1st Cir.1975); Sloane v. Smith, 351 F.Supp. 1299, 1300 (M.D.Pa.1972); see also, e.g., McCoy v. McLeroy, 348 F.Supp. 1034, 1036 (M.D.Ga.1972). Consequently, they must present evidence that they themselves are entitled to the relief sought. They have presented no evidence that would permit the court to conclude that any of them is likely to suffer any irreparable harm before trial. Indeed, counsel for Intervenors indicated at the hearing that he did not intend to produce any evidence in support of Intervenors' claims because they had been unrebutted by Defendants.
In 2002, Congress passed HAVA, 42 U.S.C. §§ 15301-15545. Under HAVA, states are required to offer provisional ballots to Election Day voters who changed residences within 30 days of an election but failed to report the move to their CBOE. 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). After HAVA, in 2003 the General Assembly passed Session Law 2003-226 in order to bring North Carolina into compliance with federal law.
Soon after, two plaintiffs challenged the authority of the SBOE to count provisional ballots cast outside the voter's correct precinct — referred to as "out-of-precinct provisional ballots." The North Carolina Supreme Court held that the counting of such ballots violated State law. James v.
Passage of SL 2013-381 reinstated the James court's interpretation of State law by prohibiting the counting of out-of-precinct provisional ballots. Section 163-55(a) now provides: "Every person born in the United States, and every person who has been naturalized, and who shall have resided in the State of North Carolina and in the precinct in which the person offers to vote for 30 days next preceding an election, shall, if otherwise qualified as prescribed in this Chapter, be qualified to vote in the precinct in which the person resides." Section 163-166.11(5) provides that a "ballot shall not be counted if the voter did not vote in the proper precinct under [section] 163-55, including a central location to be provided by that section." Thus, if a voter appears at the wrong precinct on Election Day, he or she will have to get to the proper precinct before the close of the polls in order to cast a valid vote.
All Plaintiffs move to enjoin the prohibition on counting out-of-precinct provisional ballots. They rely on the same four legal theories, which will be addressed in turn.
In order to show likelihood of success on the merits of their Section 2 results claims, Plaintiffs must show that the system put in place by SL 2013-381 with respect to out-of-precinct provisional ballots interacts with historical and current conditions to deny black North Carolinians equal access to the polls. As noted above, for purposes of these motions the court accepts that North Carolina's history of official discrimination against blacks has resulted in current socioeconomic disparities with whites. Particularly relevant for the purposes of out-of-precinct voting are the following: (1) between the years 2006 and 2010, an average of 17.1% of blacks in North Carolina moved within the State, as compared to only 10.9% of whites (J.A. at 1228); and (2) 27% of poor blacks in North Carolina lack access to a vehicle, compared to 8.8% of poor whites (J.A. at 1155). Also, the court accepts the determinations of Plaintiffs' experts that the prohibition on counting out-of-precinct provisional ballots will disproportionally affect black voters. (E.g., J.A. at 728-34 (report of Plaintiffs' expert Dr. Allan J. Lichtman), 868-69, 878 (report of Dr. Stewart).) However, Plaintiffs have nevertheless not shown an inequality of opportunity under the totality of the circumstances and thus a likelihood of success on the merits of this claim.
First, although failure to count out-of-precinct provisional ballots will have a disproportionate effect on black voters, such an effect will be minimal because so few voters cast them. According to Dr. Stewart's calculations, which the court accepts, approximately 3,348 out-of-precinct provisional ballots cast by black voters were counted to some extent in the 2012 general election. (J.A. at 878.) This represents 1.16% of the votes cast by black voters on Election Day.
Here, too, the court is concerned with the potential scope of a determination that North Carolina's failure to partially count out-of-precinct votes violates Section 2. As noted earlier in the context of SDR, the Section 2 results standard is not retrogression, but an assessment of equality of opportunity under the current system. The fact that North Carolina counted out-of-precinct provisional ballots for four federal election cycles before reversing course, while relevant for the purposes of determining disproportionate impact, does not affect the ultimate inquiry under Section 2. Thus, 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.
Finally, the State has articulated a legitimate administrative interest in requiring Election Day voters to vote in their proper precinct. The North Carolina Supreme Court said as much in James, when it
Id. at 644-45 (quoting Sandusky Cnty. Democratic Party, 387 F.3d at 569). The State's proffered justifications are consistent with the observations of the James court and the Sixth Circuit. (See Doc. 126 at 39-40.) Moreover, testimony presented at the hearing confirmed one of the State's concerns; Melvin F. Montford of Plaintiff North Carolina A. Phillip Randolph Institute testified that his organization's GOTV volunteers take prospective voters to the polls without regard to precinct. (Doc. 164 at 78.) Such activity has the potential to burden precincts, create confusion, and lead to mistakes and election fraud. Because the State's interest in the precinct system is significant and legitimate, it cannot be tenuous.
In conclusion, the minimal usage of out-of-precinct ballots, ready availability of other methods of voting — including early voting and mail-in absentee balloting — without regard to precinct, and the State's legitimate interest in the precinct system all counsel against a Section 2 results finding. Considering the totality of the circumstances, Plaintiffs have not demonstrated a likelihood of success on their Section 2 results claim with respect to the counting of out-of-precinct provisional ballots. Consequently, their motion for a preliminary injunction on this theory of recovery will be denied.
Plaintiffs' Arlington Heights argument tracks the analogous argument discussed above with respect to SDR, with one major distinction. Plaintiffs contend that the decision to repeal the provisions for counting out-of-precinct provisional ballots was racially motivated because 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." (J.A. at 2635.) While it can be assumed that the General Assembly is deemed to be aware of its prior findings, it does not follow that any future decision to reverse course evidences racial motivation. This is especially true given the legitimate interest articulated by both Defendants
The legislative record contains no evidence that race motivated the opponents of SL 2005-2.
Thus, considering the totality of the circumstances, the court concludes that Plaintiffs have not demonstrated a clear showing of likelihood of success on the merits insofar as racial discrimination is alleged to have been a motivating factor in the decision to prohibit the counting of out-of-precinct provisional ballots. Plaintiffs' motion for preliminary injunction on this basis, therefore, will be denied.
The private Plaintiffs also challenge SL 2013-381's prohibition on counting out-of-precinct provisional ballots under the Anderson-Burdick balancing test. As the court has already concluded with respect to SDR, because the requirement to vote in one's correct precinct applies to each voter equally, the relevant burden under Anderson-Burdick is that which applies to voters generally. Of course, the requirement will affect voters who would have voted out-of-precinct more than it will affect those who vote early or who normally vote at their precinct of residence. But this is not the proper standard under Anderson-Burdick. Like the decision not to offer SDR, the current law prohibiting the counting of out-of-precinct provisional ballots "imposes only `reasonable, nondiscriminatory restrictions,'" and therefore "the State's important regulatory interests are generally sufficient to justify" the law. Burdick, 504 U.S. at 434, 112 S.Ct. 2059 (quoting Anderson, 460 U.S. at 788, 103 S.Ct. 1564).
Intervenors also argue that the prohibition on counting out-of-precinct provisional ballots violates the Twenty-Sixth Amendment because it has the purpose and effect of discriminating in voting based on age. As noted above as to SDR, however, none of the ten Intervenors has presented any evidence that they will likely suffer irreparable harm before trial in the absence of an injunction. See supra Part III.B.4. Thus, they have not demonstrated entitlement to preliminary relief, and their motions to preliminarily enjoin the prohibition on counting out-of-precinct provisional ballots will be denied.
"No-excuse" early voting
However, the decrease in permissible days is coupled with a required increase in voting hours. SL 2013-381 requires the CBOEs, before the 2014 elections, to "calculate the cumulative total number of scheduled voting hours at all sites during the 2010 ... elections" and "ensure that at least the same number of hours offered in 2010 is offered for [early voting] under this section through a combination of hours and numbers of [early-voting] sites during the... election." N.C. Gen.Stat. § 163-227.2(g2)(2).
In the event a county determines that it either cannot meet the aggregate-hours requirement or that additional hours are unnecessary, it may seek a waiver. A CBOE may only decide to seek a waiver "by unanimous vote of the board, with all members present and voting." Id. § 163-227(g3). The waiver request is then transmitted to the SBOE, where it also must be approved by a unanimous vote before a county will be granted a waiver. Id. Absent a waiver, counties must either open more early-voting sites or keep existing sites open longer to satisfy SL 2013-381's aggregate-hours requirement.
All Plaintiffs, including Intervenors, seek to enjoin enforcement of SL 2013-381's early-voting provisions. Plaintiffs' claims are brought under the same four legal theories discussed above. Plaintiffs' principal arguments are the following: (1) the reduction in early-voting days will lead to long lines both during early voting and on Election Day, deterring black and young voters from participating in the election; (2) seven fewer days will make it harder for GOTV operations to target black voters who need transportation to the polls and otherwise would not vote; (3) the aggregate-hours amendment will not compensate for the lost days because counties cannot add more hours during the mid-day times that voters prefer to use, and over 30 counties obtained a waiver from the requirement during the May 2014 primaries; and (4) the seven lost days will result in fewer Sunday voting hours, which are particularly important to black voters and GOTV operations because of "souls to the polls" efforts by churches. Defendants generally contend that the State is not required to have any early voting and that
Even assuming, without deciding,
There is also no evidence in the record that it is likely that counties will not be able to handle the turnout this fall with the remaining ten days.
Plaintiffs' witnesses opined that the loss of one week of early voting will hamper GOTV efforts and thus depress black turnout. (Doc. 164 at 74-76 (testimony of Melvin F. Montford); Doc. 165 at 95-97 (testimony of Rev. Jimmy Hawkins).) But no witness testified that he or she will not be able adjust operations readily to fit the new early-voting period. Cf. Brown, 895 F.Supp.2d at 1253-54 (citing Florida, 885 F.Supp.2d at 336) (finding that, despite testimony suggesting a two-week period was essential to GOTV efforts, groups would be able to adjust to a new distribution of hours over fewer days). In fact, one witness testified that even 17 days was not sufficient for his efforts and that a whole month of early voting would be preferable. (Doc. 165 at 100.) This suggests that although GOTV operators would prefer more days of early voting, they will be able to adjust to a reduced schedule of
Finally, Plaintiffs argue that historically black voters disproportionately used the first week of early voting under the old law and that SL 2013-381 "takes that away." This is a reformulation of the same argument. The evidence shows that black voters utilized the initial days of early voting more than white voters. To say that they will no longer use the first seven days of the new ten-day period is speculative and insufficient to show irreparable harm.
On this record, Plaintiffs have failed to carry their burden to make a clear showing that they are likely to be irreparably harmed by the reduction of seven possible days of early voting.
SL 2013-381 institutes for the first time in North Carolina a requirement that a voter "present photo identification bearing any reasonable resemblance to that voter to a local election official at the voting place before voting."
SL 2013-381 requires the State to provide a special photo identification card free of charge to any registered voter who executes a declaration "stating the registered voter is registered and does not have other photo identification acceptable under [the photo ID requirement]." Id. § 20-37.7(d)(5). The State must also provide a free photo identification card to anyone appearing before the DMV for the purpose of registering to vote who declares that she does not have an acceptable photo ID. Id. § 20-37.7(d)(6). In addition, the State may not charge the usual ten dollar fee to obtain a copy of one's birth certificate or marriage license if the registered voter declares she needs such document in order to obtain acceptable photo ID. Id. § 130A-93.1(c).
SL 2013-381's voter ID requirement does not take immediate effect. Instead, Section 6.2 of the law provides that the requirement to present valid photo ID "becomes effective January 1, 2016, and applies to primaries and elections conducted on or after that date." 2013 N.C. Sess. Law 381, § 6.2(2). Before the 2016 elections, the law provides for a "soft rollout" of the voter ID requirement, such that,
Id. § 6.2(6).
The private Plaintiffs move to enjoin
Plaintiffs rely on the declarations of a husband and wife in Pitt County who state they were improperly advised they needed a photo ID in order to vote in the May 2014 primary (but were able to vote).
In conclusion, the private Plaintiffs have not shown that they are likely to suffer irreparable harm if the "soft rollout" is not enjoined before the November 2014 election. Therefore, the motions to enjoin the soft rollout will be denied.
SL 2013-381 ends the practice of "pre-registering" 16- and 17-year-olds who would not be 18 before the next general election, which had begun in 2009. 2013 N.C. Sess. Law 381, § 12.1. Prior to enactment, N.C. Gen.Stat. § 163-82.1(d) provided "[a] person who is at least 16 years of age but will not be 18 years of age by the date of the next election and who is otherwise qualified to register may preregister to vote and shall be automatically registered upon reaching the age of eligibility following verification of the person's qualifications and address in accordance with [Section] 163-82.7." 2009 N.C. Sess. Laws 541, § 7(a). After the passage of SL 2013-381, voter registration application forms in North Carolina now ask only one question regarding the applicant's age: "Will you be 18 years of age on or before election day?" N.C. Gen.Stat. § 163-82.4(d)(2)(a). Thus, those who are 17 but will be 18 before Election Day still may register to vote in that election under SL 2013-381.
The NAACP Plaintiffs and Intervenors move to enjoin SL 2013-381's elimination of pre-registration of 16- and 17-year-olds. As discussed above, Intervenors claim injury not because the repeal of pre-registration will infringe their right to vote (as they are all over 18 years of age) or any 16- or 17-year-olds' right to vote, but because the statute will make it harder for Intervenors to conduct voter-registration drives targeting young people. (See, e.g., Doc. 63 in case 1:13CV660 ¶ 88.) The difficulty posed to Intervenors on the present motions is demonstrating that, even assuming they could succeed on the merits, they will be irreparably harmed before trial absent an injunction. The NAACP Plaintiffs, however, appear to assert direct claims on behalf of their 16- or 17-year-old members. (Doc. 52 in case 1:13CV658 ¶ 93.)
To be sure, assuming the direct right of 16- or 17-year-olds to vote is at issue in these cases, an injunction would not protect any young person's right to vote during the November 2014 general election. No present 16-year-old would be eligible to vote this fall, and any 17-year-old who will be 18 by Election Day has been able to register for some time even under SL 2013-381. Although Plaintiffs have presented evidence that the DMV refused to register people who were under 18 for some time after the passage of SL 2013-381 (Plaintiffs' Hearing Exhs. 220-23), SBOE Director Strach testified that this problem has been corrected and the DMV is now sending all voter registration applications for 17-year-olds directly to the SBOE. (Doc. 161-9 at 93-95, 99.) While individuals who turned 17 between September 1 and November 4 of 2013 would have suffered some harm in the sense that they "lost" two months of possible registration time, and individuals who were turned away by the DMV undoubtedly suffered harm at that time, a preliminary injunction at this time would do nothing for either of these groups.
It is also clear that SL 2013-381's elimination of pre-registration will not irreparably harm Plaintiffs' or Intervenors' ability to engage in pre-registration efforts for 16- and 17-year-olds. "`I]rreparable harm, as the name suggests, is harm that cannot be undone.' In other words, easily reversed harm cannot be considered irreparable." Kobach v. U.S. Election Assistance Comm'n, No. 13-cv-4095, 2014 WL 1806703, at *2 (D.Kan. May 7, 2014) (footnote omitted) (quoting Salt Lake Tribune Publ'g Co., LLC v. AT & T Corp., 320 F.3d 1081, 1105 (10th Cir.2003)). For those 16- and 17-year-olds who are not eligible to vote in the upcoming November 2014 general election, an injunction would be ineffective. Plaintiffs and
Thus, because the NAACP Plaintiffs and Intervenors have failed to demonstrate how they will suffer irreparable harm absent an injunction, their motion to enjoin the elimination of pre-registration pending trial will be denied.
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). SL 2013-381 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 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, rather than in the precinct, to exercise the right to challenge a ballot on Election Day. Id. § 20.2 (codified at N.C. Gen.Stat. § 163-87)). During early voting, any resident of the State may now file a challenge. Id. § 20.1 (codified at N.C. Gen.Stat. § 163-84)).
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 CBOE 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)). SL 2013-381 eliminates the discretion of the CBOEs by deleting the "extraordinary circumstances" clause. 2013 N.C. Sess. Law 381, § 33.1. The law now provides:
N.C. Gen.Stat. § 163-166.01. The law thus vests discretion in the SBOE to the exclusion of the CBOEs and conditions the exercise of discretion on a delay of 15 minutes or longer.
The private Plaintiffs move to preliminarily enjoin these two provisions from going into effect during the November 2014 general election. With respect to the discretion to keep the polls open, Plaintiffs bring claims of racially discriminatory intent, undue burden under the Anderson-Burdick framework, and intent to discriminate against young voters in violation of the Twenty-Sixth Amendment. As to the
As noted, 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. Several witnesses testified to recalling personal experiences in their lifetimes when intimidation based on race occurred, or worse, was condoned.
However, Plaintiffs' legitimate concerns do not support a conclusion that the potential for additional poll observers and challengers renders any intimidation likely under the facts presented to the court. The law provides that "[a]n observer shall do no electioneering at the voting place, and shall in no manner impede the voting process or interfere or communicate with or observe any voter in casting a ballot," unless the chief judge of elections permits the observer to make observations and take notes. N.C. Gen.Stat. § 163-45(c). Plaintiffs have provided no basis to suggest that poll observers or any challenger(s) will abuse their statutory power.
On these provisions, Plaintiffs fall short of the showing necessary to establish irreparable harm. Therefore, the motion to preliminarily enjoin the poll observers and discretion provisions will be denied.
Defendants move for judgment on the pleadings on all claims pursuant to Federal Rule of Civil Procedure 12(c). The standard of review governing motions for judgment on the pleadings is the same as that employed on motions to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Drager v. PLIVA USA, Inc., 741 F.3d 470, 474 (4th Cir.2014). "[A] complaint must contain sufficient factual matter ... to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). A claim is plausible
With respect to the voter ID provision, Defendants contend that Crawford is controlling precedent and requires dismissal of the private Plaintiffs' Anderson-Burdick claims. But Crawford turned on the specific facts relevant in the context of Indiana's voter ID law and recognized that the determination of whether such a law satisfies the Constitution is factually intensive. See Crawford, 553 U.S. at 191-203, 128 S.Ct. 1610 (plurality opinion). Plaintiffs here have alleged that approximately 5% of the voting-age population of North Carolina lacks valid ID, that it would be a significant burden for many voters to obtain such ID, and that the State has minimal evidence of voter fraud. (Doc. 1 in case 1:13CV861 ¶¶ 49-50, 76; Doc. 52 in case 1:13CV658 ¶¶ 71-72, 81, 83.) Such allegations are sufficient to make a claim under Anderson-Burdick at least plausible. See Veasey, ___ F.Supp.2d at ___ ___, 2014 WL 3002413, at *14-18; Frank, ___ F.Supp.2d at ___ _ ___, 2014 WL 1775432, at *3-18.
Plaintiffs have also alleged that blacks disproportionally lack IDs and that their socioeconomic conditions interact with the ID requirement to create an inequality of opportunity to vote. (See, e.g., Doc. 1 in case 1:13CV861 ¶¶ 14-17, 74-75.) Such facts state a plausible Section 2 results claim that depends on the facts adduced at trial. Finally, Plaintiffs have plausibly alleged that the General Assembly was motivated by discriminatory intent when it passed SL 2013-381, and the voter ID provision particularly. (See, e.g., id. ¶¶ 81-89, 92.) Thus, they have stated claims under both Section 2 and the Fourteenth and Fifteenth Amendments.
As to the Twenty-Sixth Amendment claim, the court will exercise its discretion under Federal Rule of Civil Procedure 12(i) to defer a ruling until trial. See Design Res., Inc. v. Leather Indus. of Am., 900 F.Supp.2d 612, 621 (M.D.N.C.2012). Not only would it assist the court to have a more developed factual record, but, as recognized above, Intervenors raise a novel claim. The court need not decide the proper framework to apply at this early stage, especially considering that if the other Plaintiffs are ultimately successful, such a claim will not have to be adjudicated. Thus, rather than to wrestle with a matter of first impression, the court will defer any ruling on Intervenors' Twenty-Sixth Amendment voter ID claim to trial.
Plaintiffs have also pleaded plausible claims with respect to SDR, out-of-precinct voting, and early voting. Although the court determined that Section 2, Fourteenth and Fifteenth Amendment challenges to the SDR and out-of-precinct provisions were unlikely to succeed on the merits, the inquiry here is a lesser standard. Plaintiffs have pleaded adequate factual matter to make these claims plausible. (See, e.g., Doc. 1 in case 1:13CV861 ¶¶ 14-22, 27-34, 37-38, 41-42, 69-73.)
With respect to the other provisions, it is clear to the court that the private Plaintiffs' and Intervenors' claims "can be adjudicated more accurately after the parties have developed the factual record." Design Res., 900 F.Supp.2d at 621 (quoting Flue-Cured Tobacco Co-op. Stabilization Corp. v. EPA, 857 F.Supp. 1137, 1145 (M.D.N.C.1994)). Very little of the parties' arguments and evidence have been devoted toward certain challenged provisions, such as the increased numbers of poll observers and eligible challengers and the elimination of CBOE discretion to keep the polls open for an additional hour. The court would benefit from additional factual development in these areas and is reluctant to rule on the face of the complaint, especially when challenges to so many provisions are already proceeding. Although more arguments were directed toward the elimination of pre-registration, the court would also benefit from further development of the record and argument in this area.
Therefore, the court finds that Plaintiffs have stated plausible claims under Section 2 and the Fourteenth and Fifteenth Amendments (both discriminatory intent and Anderson-Burdick) regarding voter ID, SDR, out-of-precinct voting, and early voting. The remainder of the claims by Plaintiffs and Intervenors will be deferred under Rule 12(i). Defendants' Rule 12(c) motion will therefore be denied in its entirety.
The United States also seeks the appointment of federal observers "to monitor future elections in North Carolina, including the November 2014 general election," pursuant to Section 3 of the VRA. (Doc. 97 at 76.) Section 3(a) authorizes the court to appoint such monitors if it determines that doing so is "necessary to enforce [the] voting guarantees" of the VRA and the Fourteenth and Fifteenth
The United States' request is premised on its only claim in the case — violation of the Section 2 of the VRA. As noted above, however, the United States demonstrated neither irreparable harm nor, where addressed, a likelihood of success on its claims. The United States has also not demonstrated that any of the changes implemented by SL 2013-381 will render federal observers necessary for the November general election. For example, neither the elimination (or return, if it had been ordered) of SDR, nor the reduction of seven days of early voting, nor the prohibition on counting out-of-precinct provisional ballots has been shown likely to create the kind of problem at the polls that observers can monitor to ensure compliance. Cf. Berks Cnty., 250 F.Supp.2d at 543 (appointing federal examiner to oversee defendant's compliance with court order requiring Spanish ballots). Similarly, and as explained previously, to conclude that potential poll monitors or challengers under SL 2013-381 will somehow act unlawfully would be speculative. Indeed, the State's experience during the May 2014 primary, where black turnout increased without serious incident, suggests otherwise.
Consequently, the United States' request for federal observers prior to trial will be denied. Coleman v. Bd. of Educ., 990 F.Supp. 221, 233 (S.D.N.Y.1997) (declining to appoint federal observers because showing was insufficient).
For the reasons stated, the court finds that Plaintiffs have stated plausible claims that should not be dismissed at this stage. Defendants' motion for judgment on the pleadings will therefore be denied. However, based on a careful review of the extensive record submitted by the parties and the applicable law, the court finds that at this stage of the proceedings Plaintiffs and Intervenors have failed to demonstrate a likelihood of success on their claims that SL 2013-381's changes as to same-day registration and out-of-precinct provisional voting were implemented with intent to deny or abridge the right to vote of African-American North Carolinians or otherwise violate Section 2 of the VRA or the Constitution. Further, even if the court assumes, without deciding, that Plaintiffs and Intervenors can demonstrate a likelihood of success on their legal challenges to the remaining provisions of SL 2013-381, they have not made a clear showing that they will nevertheless suffer irreparable harm if the court does not enjoin the law before a trial on the merits can be held. The only election slated before trial is the November 2014 general
IT IS THEREFORE ORDERED that Defendants' motions for judgment on the pleadings (Doc. 94 in case 1:13CV861, Doc. 106 in case 1:13CV658, and Doc. 110 in case 1:13CV660) are DENIED.
IT IS FURTHER ORDERED that Plaintiffs' and Intervenors' motions for a preliminary injunction (Docs. 96 & 98 in case 1:13CV861; Docs. 108 & 110 in case 1:13CV658; and Docs. 112 & 114 in case 1:13CV660) are DENIED.
IT IS FURTHER ORDERED that Plaintiffs' motions to strike Defendants' experts (Docs. 146, 148, & 150 in case 1:13CV861; Docs. 156, 158, & 160 in case 1:13CV658; and Docs. 157, 159, & 161 in case 1:13CV660) are DENIED AS MOOT.
In addition, only 14 counties offered any voting on the first Saturday available in 2010. (Id. at 45-90.) Once again, the largest counties (Mecklenburg, Guilford, Forsyth, Wake, Durham, and Cumberland) offered no hours of early voting on the first Saturday. (Id.) The counties that chose to offer voting on the first Saturday in 2010 will have two additional Saturdays in 2014 as well as one Sunday (on which none of them previously offered voting) to make up the required hours. Voters will have no fewer than two Saturdays of early voting in counties that previously offered three Saturdays. In most counties, including the six largest, the weekend voting situation will remain unchanged from 2010. Indeed, counties may actually be compelled to add more weekend hours to comply with the aggregate-hours requirement. For example, Chatham County will now offer four sites with 33 aggregate hours of voting on the second Saturday before Election Day, as opposed to three sites and 15 aggregate hours in 2010. See N.C. State Bd. of Elections, N.C. One-Stop Voting Site Results — November 4, 2014 Election, http://www.ncsbe.gov/webapps/os_sites/OSVotingSiteList.aspx?County=CHATHAM&Election=11/04/2014 (last visited Aug. 5, 2014). This falls far short of the showing necessary to demonstrate irreparable harm.
