N.C. State Conference v. Patrick McCrory , 831 F.3d 204 ( 2016 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-1468
NORTH CAROLINA STATE CONFERENCE OF THE NAACP; ROSANELL
EATON; EMMANUEL BAPTIST CHURCH; BETHEL A. BAPTIST CHURCH;
COVENANT PRESBYTERIAN CHURCH; BARBEE’S CHAPEL MISSIONARY
BAPTIST CHURCH, INC.; ARMENTA EATON; CAROLYN COLEMAN;
JOCELYN FERGUSON-KELLY; FAITH JACKSON; MARY PERRY, MARIA
TERESA UNGER PALMER,
Plaintiffs - Appellants,
and
JOHN DOE 1; JANE DOE 1; JOHN DOE 2; JANE DOE 2; JOHN DOE 3;
JANE DOE 3; NEW OXLEY HILL BAPTIST CHURCH; CLINTON
TABERNACLE AME ZION CHURCH; BAHEEYAH MADANY,
Plaintiffs,
v.
PATRICK L. MCCRORY, in his official capacity as Governor of
the State of North Carolina; KIM WESTBROOK STRACH, in her
official capacity as a member of the State Board of
Elections; JOSHUA B. HOWARD, in his official capacity as a
member of the State Board of Elections; RHONDA K. AMOROSO,
in her official capacity as a member of the State Board of
Elections; JOSHUA D. MALCOLM, in his official capacity as a
member of the State Board of Elections; PAUL J. FOLEY, in
his official capacity as a member of the State Board of
Elections; MAJA KRICKER, in her official capacity as a
member of the State Board of Elections; JAMES BAKER, in his
official capacity as a member of the North Carolina State
Board of Elections,
Defendants - Appellees.
----------------------------
CONSTITUTIONAL ACCOUNTABILITY CENTER; STACEY STITT; MARIA
DIAZ; ROBERT GUNDRUM; MISTY TAYLOR; SERVICE EMPLOYEES
INTERNATIONAL UNION; DEMOCRACY NORTH CAROLINA; UNC CENTER
FOR CIVIL RIGHTS; PEARLEIN REVELS; LOUISE MITCHELL; ERIC
LOCKLEAR; ANITA HAMMONDS BLANKS,
Amici Supporting Appellants,
JUDICIAL WATCH, INCORPORATED; ALLIED EDUCATIONAL FOUNDATION;
THOM TILLIS; LINDSEY GRAHAM; TED CRUZ; MIKE LEE; JUDICIAL
EDUCATION PROJECT; LAWYERS DEMOCRACY FUND; MOUNTAIN STATES
LEGAL FOUNDATION; AMERICAN CIVIL RIGHTS UNION; STATE OF
INDIANA; STATE OF ALABAMA; STATE OF ARIZONA; STATE OF
ARKANSAS; STATE OF GEORGIA; STATE OF KANSAS; STATE OF
MICHIGAN; STATE OF NORTH DAKOTA; STATE OF OHIO; STATE OF
OKLAHOMA; STATE OF SOUTH CAROLINA; STATE OF TEXAS; STATE OF
WEST VIRGINIA; STATE OF WISCONSIN; PACIFIC LEGAL FOUNDATION;
CENTER FOR EQUAL OPPORTUNITY; PROJECT 21,
Amici Supporting Appellees.
No. 16-1469
LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA; NORTH CAROLINA A.
PHILIP RANDOLPH INSTITUTE; UNIFOUR ONESTOP COLLABORATIVE;
COMMON CAUSE NORTH CAROLINA; GOLDIE WELLS; KAY BRANDON;
OCTAVIA RAINEY; SARA STOHLER; HUGH STOHLER,
Plaintiffs,
CHARLES M. GRAY; ASGOD BARRANTES; MARY-WREN RITCHIE,
Intervenors/Plaintiffs,
and
LOUIS M. DUKE; JOSUE E. BERDUO; NANCY J. LUND; BRIAN M.
MILLER; BECKY HURLEY MOCK; LYNNE M. WALTER; EBONY N. WEST,
Intervenors/Plaintiffs - Appellants,
v.
2
STATE OF NORTH CAROLINA; JOSHUA B. HOWARD, in his official
capacity as a member of the State Board of Elections; RHONDA
K. AMOROSO, in her official capacity as a member of the
State Board of Elections; JOSHUA D. MALCOLM, in his official
capacity as a member of the State Board of Elections; PAUL
J. FOLEY, in his official capacity as a member of the State
Board of Elections; MAJA KRICKER, in her official capacity
as a member of the State Board of Elections; PATRICK L.
MCCRORY, in his official capacity as Governor of the State
of North Carolina,
Defendants - Appellees.
----------------------------
CONSTITUTIONAL ACCOUNTABILITY CENTER; STACEY STITT; MARIA
DIAZ; ROBERT GUNDRUM; MISTY TAYLOR; SERVICE EMPLOYEES
INTERNATIONAL UNION; DEMOCRACY NORTH CAROLINA; UNC CENTER
FOR CIVIL RIGHTS; PEARLEIN REVELS; LOUISE MITCHELL; ERIC
LOCKLEAR; ANITA HAMMONDS BLANKS,
Amici Supporting Appellants,
JUDICIAL WATCH, INCORPORATED; ALLIED EDUCATIONAL FOUNDATION;
THOM TILLIS; LINDSEY GRAHAM; TED CRUZ; MIKE LEE; JUDICIAL
EDUCATION PROJECT; LAWYERS DEMOCRACY FUND; MOUNTAIN STATES
LEGAL FOUNDATION; AMERICAN CIVIL RIGHTS UNION; STATE OF
INDIANA; STATE OF ALABAMA; STATE OF ARIZONA; STATE OF
ARKANSAS; STATE OF GEORGIA; STATE OF KANSAS; STATE OF
MICHIGAN; STATE OF NORTH DAKOTA; STATE OF OHIO; STATE OF
OKLAHOMA; STATE OF SOUTH CAROLINA; STATE OF TEXAS; STATE OF
WEST VIRGINIA; STATE OF WISCONSIN; PACIFIC LEGAL FOUNDATION;
CENTER FOR EQUAL OPPORTUNITY; PROJECT 21,
Amici Supporting Appellees.
No. 16-1474
LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA; NORTH CAROLINA A.
PHILIP RANDOLPH INSTITUTE; UNIFOUR ONESTOP COLLABORATIVE;
COMMON CAUSE NORTH CAROLINA; GOLDIE WELLS; KAY BRANDON;
OCTAVIA RAINEY; SARA STOHLER; HUGH STOHLER,
Plaintiffs - Appellants,
3
and
LOUIS M. DUKE; CHARLES M. GRAY; ASGOD BARRANTES; JOSUE E.
BERDUO; BRIAN M. MILLER; NANCY J. LUND; BECKY HURLEY MOCK;
MARY-WREN RITCHIE; LYNNE M. WALTER; EBONY N. WEST,
Intervenors/Plaintiffs,
v.
STATE OF NORTH CAROLINA; JOSHUA B. HOWARD, in his official
capacity as a member of the State Board of Elections; RHONDA
K. AMOROSO, in her official capacity as a member of the
State Board of Elections; JOSHUA D. MALCOLM, in his official
capacity as a member of the State Board of Elections; PAUL
J. FOLEY, in his official capacity as a member of the State
Board of Elections; MAJA KRICKER, in her official capacity
as a member of the State Board of Elections; PATRICK L.
MCCRORY, in his official capacity as Governor of the State
of North Carolina,
Defendants - Appellees.
----------------------------
CONSTITUTIONAL ACCOUNTABILITY CENTER; STACEY STITT; MARIA
DIAZ; ROBERT GUNDRUM; MISTY TAYLOR; SERVICE EMPLOYEES
INTERNATIONAL UNION; DEMOCRACY NORTH CAROLINA; UNC CENTER
FOR CIVIL RIGHTS; PEARLEIN REVELS; LOUISE MITCHELL; ERIC
LOCKLEAR; ANITA HAMMONDS BLANKS,
Amici Supporting Appellants,
JUDICIAL WATCH, INCORPORATED; ALLIED EDUCATIONAL FOUNDATION;
THOM TILLIS; LINDSEY GRAHAM; TED CRUZ; MIKE LEE; JUDICIAL
EDUCATION PROJECT; LAWYERS DEMOCRACY FUND; MOUNTAIN STATES
LEGAL FOUNDATION; AMERICAN CIVIL RIGHTS UNION; STATE OF
INDIANA; STATE OF ALABAMA; STATE OF ARIZONA; STATE OF
ARKANSAS; STATE OF GEORGIA; STATE OF KANSAS; STATE OF
MICHIGAN; STATE OF NORTH DAKOTA; STATE OF OHIO; STATE OF
OKLAHOMA; STATE OF SOUTH CAROLINA; STATE OF TEXAS; STATE OF
WEST VIRGINIA; STATE OF WISCONSIN; PACIFIC LEGAL FOUNDATION;
CENTER FOR EQUAL OPPORTUNITY; PROJECT 21,
Amici Supporting Appellees.
4
No. 16-1529
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
v.
STATE OF NORTH CAROLINA; NORTH CAROLINA STATE BOARD OF
ELECTIONS; KIM WESTBROOK STRACH,
Defendants - Appellees,
and
CHRISTINA KELLEY GALLEGOS-MERRILL; JUDICIAL WATCH,
INCORPORATED,
Intervenors/Defendants.
----------------------------
CONSTITUTIONAL ACCOUNTABILITY CENTER; STACEY STITT; MARIA
DIAZ; ROBERT GUNDRUM; MISTY TAYLOR; SERVICE EMPLOYEES
INTERNATIONAL UNION; DEMOCRACY NORTH CAROLINA; UNC CENTER
FOR CIVIL RIGHTS; PEARLEIN REVELS; LOUISE MITCHELL; ERIC
LOCKLEAR; ANITA HAMMONDS BLANKS,
Amici Supporting Appellant,
JUDICIAL WATCH, INCORPORATED; ALLIED EDUCATIONAL FOUNDATION;
THOM TILLIS; LINDSEY GRAHAM; TED CRUZ; MIKE LEE; JUDICIAL
EDUCATION PROJECT; LAWYERS DEMOCRACY FUND; MOUNTAIN STATES
LEGAL FOUNDATION; AMERICAN CIVIL RIGHTS UNION; STATE OF
INDIANA; STATE OF ALABAMA; STATE OF ARIZONA; STATE OF
ARKANSAS; STATE OF GEORGIA; STATE OF KANSAS; STATE OF
MICHIGAN; STATE OF NORTH DAKOTA; STATE OF OHIO; STATE OF
OKLAHOMA; STATE OF SOUTH CAROLINA; STATE OF TEXAS; STATE OF
WEST VIRGINIA; STATE OF WISCONSIN; PACIFIC LEGAL FOUNDATION;
CENTER FOR EQUAL OPPORTUNITY; PROJECT 21,
Amici Supporting Appellees.
5
Appeals from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:13-cv-00658-TDS-JEP; 1:13-cv-00660-TDS-JEP;
1:13-cv-00861-TDS-JEP)
Argued: June 21, 2016 Decided: July 29, 2016
Before MOTZ, WYNN, and FLOYD, Circuit Judges.
Reversed and remanded by published opinion. Judge Motz wrote
the opinion for the court, in which Judge Wynn and Judge Floyd
joined except as to Part V.B. Judge Wynn wrote the opinion for
the court as to Part V.B., in which Judge Floyd joined. Judge
Motz wrote a separate dissenting opinion as to Part V.B.
ARGUED: Anna Marks Baldwin, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C.; Penda D. Hair, ADVANCEMENT PROJECT,
Washington, D.C.; Allison Jean Riggs, SOUTHERN COALITION FOR
SOCIAL JUSTICE, Durham, North Carolina, for Appellants. Thomas
A. Farr, OGLETREE DEAKINS NASH SMOAK & STEWART, PC, Raleigh,
North Carolina; Alexander McClure Peters, NORTH CAROLINA
DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellees.
ON BRIEF: Denise D. Lieberman, Donita Judge, Caitlin Swain,
ADVANCEMENT PROJECT, Washington, D.C.; Irving Joyner, Cary,
North Carolina; Adam Stein, TIN FULTON WALKER & OWEN, PLLC,
Chapel Hill, North Carolina; Daniel T. Donovan, Bridget K.
O’Connor, K. Winn Allen, Michael A. Glick, Ronald K. Anguas,
Jr., Madelyn A. Morris, KIRKLAND & ELLIS LLP, Washington, D.C.,
for Appellants North Carolina State Conference of Branches of
the NAACP, Rosanell Eaton, Emmanuel Baptist Church, Bethel A.
Baptist Church, Covenant Presbyterian Church, Barbee’s Chapel
Missionary Baptist Church, Inc., Armenta Eaton, Carolyn Coleman,
Jocelyn Ferguson-Kelly, Faith Jackson, Mary Perry, and Maria
Teresa Unger Palmer. Edwin M. Speas, John O’Hale, Caroline P.
Mackie, POYNER SPRUILL LLP, Raleigh, North Carolina; Joshua L.
Kaul, Madison, Wisconsin, Marc E. Elias, Bruce V. Spiva,
Elisabeth C. Frost, Amanda Callais, Washington, D.C., Abha
Khanna, PERKINS COIE LLP, Seattle, Washington, for Appellants
Louis M. Duke, Josue E. Berduo, Nancy J. Lund, Brian M. Miller,
Becky Hurley Mock, Lynne M. Walter, and Ebony N. West. Dale E.
Ho, Julie A. Ebenstein, Sophia Lin Lakin, AMERICAN CIVIL
LIBERTIES UNION FOUNDATION, INC., New York, New York;
Christopher Brook, ACLU OF NORTH CAROLINA LEGAL FOUNDATION,
6
Raleigh, North Carolina; Anita S. Earls, George Eppsteiner,
SOUTHERN COALITION FOR SOCIAL JUSTICE, Durham, North Carolina
for Appellants League of Women Voters of North Carolina, North
Carolina A. Philip Randolph Institute, Unifour Onestop
Collaborative, Common Cause North Carolina, Goldie Wells, Kay
Brandon, Octavia Rainey, Sara Stohler, and Hugh Stohler. Ripley
Rand, United States Attorney for the Middle District of North
Carolina, Gill P. Beck, Special Assistant United States Attorney
for the Middle District of North Carolina, Gregory B. Friel,
Deputy Assistant Attorney General, Justin Levitt, Deputy
Assistant Attorney General, Diana K. Flynn, Christine H. Ku,
Civil Rights Division, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellant United States of America. L.
Gray Geddie, Jr., Phillip J. Strach, Michael D. McKnight,
OGLETREE DEAKINS NASH SMOAK & STEWART, PC, Raleigh, North
Carolina, for Appellees State of North Carolina and North
Carolina State Board of Elections; Karl S. Bowers, Jr., BOWERS
LAW OFFICE LLC, Columbia, South Carolina, Robert C. Stephens,
OFFICE OF THE GOVERNOR OF NORTH CAROLINA, Raleigh, North
Carolina, for Appellee Patrick L. McCrory. Elizabeth B. Wydra,
Brianne J. Gorod, David H. Gans, CONSTITUTIONAL ACCOUNTABILITY
CENTER, Washington, D.C., for Amicus Constitutional
Accountability Center. Claire Prestel, Ryan E. Griffin, JAMES &
HOFFMAN, P.C., Washington, D.C.; Mary Joyce Carlson, Washington,
D.C.; Judith A. Scott, Lauren Bonds, Katherine Roberson-Young,
SERVICE EMPLOYEES INTERNATIONAL UNION, Washington, D.C., for
Amici Stacey Stitt, Maria Diaz, Robert Gundrum, Misty Taylor,
and Service Employees International Union. Mark R. Sigmon,
SIGMON LAW, PLLC, Raleigh, North Carolina, for Amicus Democracy
North Carolina. Mark Dorosin, Elizabeth Haddix, Brent Ducharme,
UNC CENTER FOR CIVIL RIGHTS, Chapel Hill, North Carolina, for
Amicus UNC Center for Civil Rights. Jeanette Wolfley, Assistant
Professor, UNIVERSITY OF NEW MEXICO SCHOOL OF LAW, Albuquerque,
New Mexico, Arnold Locklear, LOCKLEAR, JACOBS, HUNT & BROOKS,
Pembroke, North Carolina for Amici Pearlein Revels, Louise
Mitchell, Eric Locklear, and Anita Hammonds Blanks. Bradley J.
Schlozman, HINKLE LAW FIRM LLC, Wichita, Kansas; Chris Fedeli,
Lauren M. Burke, JUDICIAL WATCH, INC., Washington, D.C.; H.
Christopher Coates, LAW OFFICE OF H. CHRISTOPHER COATES,
Charleston, South Carolina, for Amici Judicial Watch, Inc. and
Allied Educational Foundation. Michael A. Carvin, Anthony J.
Dick, Stephen A. Vaden, JONES DAY, Washington, D.C., for Amici
Senators Thom Tillis, Lindsey Graham, Ted Cruz, Mike Lee, and
the Judicial Education Project. Maya M. Noronha, Trevor M.
Stanley, E. Mark Braden, Richard B. Raile, BAKER & HOSTETLER
LLP, Washington, D.C., for Amicus Lawyers Democracy Fund.
Joshua P. Thompson, Christopher M. Kieser, PACIFIC LEGAL
7
FOUNDATION, Sacramento, California, for Amici Pacific Legal
Foundation, Center for Equal Opportunity, and Project 21.
Steven J. Lechner, MOUNTAIN STATES LEGAL FOUNDATION, Lakewood,
Colorado, for Amicus Mountain States Legal Foundation. Joseph
A. Vanderhulst, PUBLIC INTEREST LEGAL FOUNDATION, Plainfield,
Indiana, for Amicus American Civil Rights Union. Gregory F.
Zoeller, Attorney General of Indiana, Thomas M. Fisher,
Solicitor General, Winston Lin, Deputy Attorney General, OFFICE
OF THE INDIANA ATTORNEY GENERAL, Indianapolis, Indiana; Luther
Strange, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF
ALABAMA, Montgomery, Alabama; Mark Brnovich, Attorney General,
OFFICE OF THE ATTORNEY GENERAL OF ARIZONA, Phoenix, Arizona;
Leslie Rutledge, Attorney General, OFFICE OF THE ATTORNEY
GENERAL OF ARKANSAS, Little Rock, Arkansas; Sam Olens, Attorney
General, OFFICE OF THE ATTORNEY GENERAL OF GEORGIA, Atlanta,
Georgia; Derek Schmidt, Attorney General, OFFICE OF THE ATTORNEY
GENERAL OF KANSAS, Topeka, Kansas; Bill Schuette, Attorney
General, OFFICE OF THE ATTORNEY GENERAL OF MICHIGAN, Lansing,
Michigan; Wayne Stenehjem, Attorney General, OFFICE OF THE
ATTORNEY GENERAL OF NORTH DAKOTA, Bismarck, North Dakota;
Michael DeWine, Attorney General, OFFICE OF THE ATTORNEY GENERAL
OF OHIO, Columbus, Ohio; E. Scott Pruitt, Attorney General,
OFFICE OF THE ATTORNEY GENERAL OF OKLAHOMA, Oklahoma City,
Oklahoma; Alan Wilson, Attorney General, OFFICE OF THE ATTORNEY
GENERAL OF SOUTH CAROLINA, Columbia, South Carolina; Ken Paxton,
Attorney General, OFFICE OF THE ATTORNEY GENERAL OF TEXAS,
Austin, Texas; Patrick Morrisey, Attorney General, OFFICE OF THE
ATTORNEY GENERAL OF WEST VIRGINIA, Charleston, West Virginia;
Brad D. Schimel, Attorney General, OFFICE OF THE ATTORNEY
GENERAL OF WISCONSIN, Madison, Wisconsin, for Amici States of
Indiana, Alabama, Arizona, Arkansas, Georgia, Kansas, Michigan,
North Dakota, Ohio, Oklahoma, South Carolina, Texas, West
Virginia, and Wisconsin.
8
DIANA GRIBBON MOTZ, Circuit Judge, writing for the court except
as to Part V.B.:
These consolidated cases challenge provisions of a recently
enacted North Carolina election law. The district court
rejected contentions that the challenged provisions violate the
Voting Rights Act and the Fourteenth, Fifteenth, and Twenty-
Sixth Amendments of the Constitution. In evaluating the massive
record in this case, the court issued extensive factual
findings. We appreciate and commend the court on its
thoroughness. The record evidence provides substantial support
for many of its findings; indeed, many rest on uncontested
facts. But, for some of its findings, we must conclude that the
district court fundamentally erred. In holding that the
legislature did not enact the challenged provisions with
discriminatory intent, the court seems to have missed the forest
in carefully surveying the many trees. This failure of
perspective led the court to ignore critical facts bearing on
legislative intent, including the inextricable link between race
and politics in North Carolina.
Voting in many areas of North Carolina is racially
polarized. That is, “the race of voters correlates with the
selection of a certain candidate or candidates.” Thornburg v.
Gingles, 478 U.S. 30, 62 (1986) (discussing North Carolina). In
Gingles and other cases brought under the Voting Rights Act, the
9
Supreme Court has explained that polarization renders minority
voters uniquely vulnerable to the inevitable tendency of elected
officials to entrench themselves by targeting groups unlikely to
vote for them. In North Carolina, restriction of voting
mechanisms and procedures that most heavily affect African
Americans will predictably redound to the benefit of one
political party and to the disadvantage of the other. As the
evidence in the record makes clear, that is what happened here.
After years of preclearance and expansion of voting access,
by 2013 African American registration and turnout rates had
finally reached near-parity with white registration and turnout
rates. African Americans were poised to act as a major
electoral force. But, on the day after the Supreme Court issued
Shelby County v. Holder, 133 S. Ct. 2612 (2013), eliminating
preclearance obligations, a leader of the party that newly
dominated the legislature (and the party that rarely enjoyed
African American support) announced an intention to enact what
he characterized as an “omnibus” election law. Before enacting
that law, the legislature requested data on the use, by race, of
a number of voting practices. Upon receipt of the race data,
the General Assembly enacted legislation that restricted voting
and registration in five different ways, all of which
disproportionately affected African Americans.
10
In response to claims that intentional racial
discrimination animated its action, the State offered only
meager justifications. Although the new provisions target
African Americans with almost surgical precision, they
constitute inapt remedies for the problems assertedly justifying
them and, in fact, impose cures for problems that did not exist.
Thus the asserted justifications cannot and do not conceal the
State’s true motivation. “In essence,” as in League of United
Latin American Citizens v. Perry (LULAC), 548 U.S. 399, 440
(2006), “the State took away [minority voters’] opportunity
because [they] were about to exercise it.” As in LULAC, “[t]his
bears the mark of intentional discrimination.” Id.Faced with this record, we can only conclude that the North
Carolina General Assembly enacted the challenged provisions of
the law with discriminatory intent. Accordingly, we reverse the
judgment of the district court to the contrary and remand with
instructions to enjoin the challenged provisions of the law.
I.
“The Voting Rights Act of 1965 employed extraordinary
measures to address an extraordinary problem.” Shelby Cty., 133
S. Ct. at 2618. Although the Fourteenth and Fifteenth
Amendments to the United States Constitution prohibit racial
discrimination in the regulation of elections, state
11
legislatures have too often found facially race-neutral ways to
deny African Americans access to the franchise. See id. at
2619; Johnson v. De Grandy, 512 U.S. 997, 1018 (1994) (noting
“the demonstrated ingenuity of state and local governments in
hobbling minority voting power” as “jurisdictions have
substantially moved from direct, over[t] impediments to the
right to vote to more sophisticated devices” (alteration in
original) (internal quotation marks omitted)).
To remedy this problem, Congress enacted the Voting Rights
Act. In its current form, § 2 of the Act provides:
No voting qualification or prerequisite to voting or
standard, practice, or procedure shall be imposed or
applied by any State or political subdivision in a
manner which results in a denial or abridgement of the
right of any citizen of the United States to vote on
account of race or color . . . .
52 U.S.C. § 10301(a) (2012) (formerly 42 U.S.C. § 1973(a)).
In addition to this general statutory prohibition on racial
discrimination, Congress identified particular jurisdictions
“covered” by § 5 of the Voting Rights Act. Shelby Cty., 133
S. Ct. at 2619. Covered jurisdictions were those that, as of
1972, had maintained suspect prerequisites to voting, like
literacy tests, and had less than 50% voter registration or
turnout. Id. at 2619-20. Forty North Carolina jurisdictions
were covered under the Act. 28 C.F.R. pt. 51 app. (2016). As a
result, whenever the North Carolina legislature sought to change
12
the procedures or qualifications for voting statewide or in
those jurisdictions, it first had to seek “preclearance” with
the United States Department of Justice. In doing so, the State
had to demonstrate that a change had neither the purpose nor
effect of “diminishing the ability of any citizens” to vote “on
account of race or color.” 52 U.S.C. § 10304 (2012) (formerly
42 U.S.C. § 1973c).
During the period in which North Carolina jurisdictions
were covered by § 5, African American electoral participation
dramatically improved. In particular, between 2000 and 2012,
when the law provided for the voting mechanisms at issue here
and did not require photo ID, African American voter
registration swelled by 51.1%. J.A. 804 1 (compared to an
increase of 15.8% for white voters). African American turnout
similarly surged, from 41.9% in 2000 to 71.5% in 2008 and 68.5%
in 2012. J.A. 1196-97. Not coincidentally, during this period
North Carolina emerged as a swing state in national elections.
Then, in late June 2013, the Supreme Court issued its
opinion in Shelby County. In it, the Court invalidated the
preclearance coverage formula, finding it based on outdated
data. Shelby Cty., 133 S. Ct. at 2631. Consequently, as of
that date, North Carolina no longer needed to preclear changes
1Citations to “J.A. __” refer to the Joint Appendix filed
by the parties in this appeal.
13
in its election laws. As the district court found, the day
after the Supreme Court issued Shelby County, the “Republican
Chairman of the [Senate] Rules Committee[] publicly stated, ‘I
think we’ll have an omnibus bill coming out’ and . . . that the
Senate would move ahead with the ‘full bill.’” N.C. State Conf.
of the NAACP v. McCrory, 2016 WL 1650774, at *9 (M.D.N.C. Apr.
25, 2016). The legislature then swiftly expanded an essentially
single-issue bill into omnibus legislation, enacting it as
Session Law (“SL”) 2013-381. 2
In this one statute, the North Carolina legislature imposed
a number of voting restrictions. The law required in-person
voters to show certain photo IDs, beginning in 2016, which
African Americans disproportionately lacked, and eliminated or
reduced registration and voting access tools that African
Americans disproportionately used. Id. at *9-10, *37, *123,
*127, *131. Moreover, as the district court found, prior to
enactment of SL 2013-381, the legislature requested and received
racial data as to usage of the practices changed by the proposed
law. Id. at *136-38.
2
The parties and the district court sometimes identify the
law at issue in this case as House Bill or HB 589, the initial
bill that originated in the House of the North Carolina General
Assembly. That bill was amended in the North Carolina Senate
and then enacted as SL 2013-381. See H.B. 589, 2013 Gen.
Assemb. (N.C. 2013); 2013 N.C. Sess. Laws 381.
14
This data showed that African Americans disproportionately
lacked the most common kind of photo ID, those issued by the
Department of Motor Vehicles (DMV). Id. The pre-Shelby County
version of SL 2013-381 provided that all government-issued IDs,
even many that had been expired, would satisfy the requirement
as an alternative to DMV-issued photo IDs. J.A. 2114-15. After
Shelby County, with race data in hand, the legislature amended
the bill to exclude many of the alternative photo IDs used by
African Americans. Id. at *142; J.A. 2291-92. As amended, the
bill retained only the kinds of IDs that white North Carolinians
were more likely to possess. Id.; J.A. 3653, 2115, 2292.
The district court found that, prior to enactment of SL
2013-381, legislators also requested data as to the racial
breakdown of early voting usage. Id. at *136-37. Early voting
allows any registered voter to complete an absentee application
and ballot at the same time, in person, in advance of Election
Day. Id. at *4-5. Early voting thus increases opportunities to
vote for those who have difficulty getting to their polling
place on Election Day.
The racial data provided to the legislators revealed that
African Americans disproportionately used early voting in both
2008 and 2012. Id. at *136-38; see also id. at *48 n.74 (trial
evidence showing that 60.36% and 64.01% of African Americans
voted early in 2008 and 2012, respectively, compared to 44.47%
15
and 49.39% of whites). In particular, African Americans
disproportionately used the first seven days of early voting.
Id. After receipt of this racial data, the General Assembly
amended the bill to eliminate the first week of early voting,
shortening the total early voting period from seventeen to ten
days. Id. at *15, *136. As a result, SL 2013-381 also
eliminated one of two “souls-to-the-polls” Sundays in which
African American churches provided transportation to voters.
Id. at *55.
The district court found that legislators similarly
requested data as to the racial makeup of same-day registrants.
Id. at *137. Prior to SL 2013-381, same-day registration
allowed eligible North Carolinians to register in person at an
early voting site at the same time as casting their ballots.
Id. at *6. Same-day registration provided opportunities for
those as yet unable to register, as well as those who had ended
up in the “incomplete registration queue” after previously
attempting to register. Id. at *65. Same-day registration also
provided an easy avenue to re-register for those who moved
frequently, and allowed those with low literacy skills or other
difficulty completing a registration form to receive personal
assistance from poll workers. See id.The legislature’s racial data demonstrated that, as the
district court found, “it is indisputable that African American
16
voters disproportionately used [same-day registration] when it
was available.” Id. at *61. The district court further found
that African American registration applications constituted a
disproportionate percentage of the incomplete registration
queue. Id. at *65. And the court found that African Americans
“are more likely to move between counties,” and thus “are more
likely to need to re-register.” Id. As evidenced by the types
of errors that placed many African American applications in the
incomplete queue, id. at *65, *123 & n.26, in-person assistance
likely would disproportionately benefit African Americans.
SL 2013-381 eliminated same-day registration. Id. at *15.
Legislators additionally requested a racial breakdown of
provisional voting, including out-of-precinct voting. Id. at
*136-37. Out-of-precinct voting required the Board of Elections
in each county to count the provisional ballot of an Election
Day voter who appeared at the wrong precinct, but in the correct
county, for all of the ballot items for which the voter was
eligible to vote. Id. at *5-6. This provision assisted those
who moved frequently, or who mistook a voting site as being in
their correct precinct.
The district court found that the racial data revealed that
African Americans disproportionately voted provisionally. Id.
at *137. In fact, the General Assembly that had originally
enacted the out-of-precinct voting legislation had specifically
17
found that “of those registered voters who happened to vote
provisional ballots outside their resident precincts” in 2004,
“a disproportionately high percentage were African American.”
Id. at *138. With SL 2013-381, the General Assembly altogether
eliminated out-of-precinct voting. Id. at *15.
African Americans also disproportionately used
preregistration. Id. at *69. Preregistration permitted 16- and
17-year-olds, when obtaining driver’s licenses or attending
mandatory high school registration drives, to identify
themselves and indicate their intent to vote. Id. at *7, *68.
This allowed County Boards of Elections to verify eligibility
and automatically register eligible citizens once they reached
eighteen. Id. at *7. Although preregistration increased
turnout among young adult voters, SL 2013-381 eliminated it.
Id. at *15, *69. 3
The district court found that not only did SL 2013-381
eliminate or restrict these voting mechanisms used
disproportionately by African Americans, and require IDs that
African Americans disproportionately lacked, but also that
African Americans were more likely to “experience socioeconomic
3SL 2013-381 also contained many provisions that did not
restrict access to voting or registration and thus are not
subject to challenge here. N.C. State Conf., 2016 WL 1650774,
at *9. Of course, as explained below, our holding regarding
discriminatory intent applies only to the law’s challenged
portions.
18
factors that may hinder their political participation.” Id. at
*89. This is so, the district court explained, because in North
Carolina, African Americans are “disproportionately likely to
move, be poor, less educated, have less access to
transportation, and experience poor health.” Id. at *89.
Nevertheless, over protest by many legislators and members
of the public, the General Assembly quickly ratified SL 2013-381
by strict party-line votes. Id. at *9-13. The Governor, who
was of the same political party as the party that controlled the
General Assembly, promptly signed the bill into law on August
12, 2013. Id. at *13.
That same day, the League of Women Voters, along with
numerous other organizations and individuals, filed suit. Id.
at *16. These Plaintiffs alleged that the restrictions on early
voting and elimination of same-day registration and out-of-
precinct voting were motivated by discriminatory intent in
violation of § 2 of the Voting Rights Act and the Fourteenth and
Fifteenth Amendments; that these provisions had a discriminatory
result in violation of § 2 of the Voting Rights Act; and that
these provisions burdened the right to vote generally, in
contravention of the Fourteenth Amendment. See id.
Also that same day, the North Carolina State Conference of
the NAACP, in conjunction with several other organizations and
individuals, filed a separate action. Id. They alleged that
19
the photo ID requirement and the provisions challenged by the
League of Women Voters produced discriminatory results under § 2
and demonstrated intentional discrimination in violation of the
Fourteenth and Fifteenth Amendments. Id. Soon thereafter, the
United States also filed suit, challenging the same provisions
as discriminatory in both purpose and result in violation of § 2
of the Voting Rights Act. Id. Finally, a group of “young
voters” intervened, alleging that these same provisions violated
their rights under the Fourteenth and Twenty-Sixth Amendments.
Id. 4 The district court consolidated the cases. Id.
Ahead of the 2014 midterm general election, Plaintiffs
moved for a preliminary injunction of several provisions of the
law. See N.C. State Conf. of the NAACP v. McCrory, 997 F. Supp.
2d 322, 339 (M.D.N.C. 2014). The district court denied the
motion. Id. at 383. On appeal, we reversed in part, remanding
the case with instructions to issue an order staying the
elimination of same-day registration and out-of-precinct voting.
League of Women Voters of N.C. v. North Carolina (LWV), 769 F.3d
224, 248-49 (4th Cir. 2014).
Over the dissent of two Justices, the Supreme Court stayed
our injunction mandate on October 8, 2014, pending its decision
4
The complaints also challenged a few other provisions of
SL 2013-381 that are not challenged on appeal and so not
discussed here. See, e.g., J.A. 16448.
20
on certiorari. See North Carolina v. League of Women Voters of
N.C., 135 S. Ct. 6 (2014) (mem.). On April 6, 2015, the Supreme
Court denied certiorari. See North Carolina v. League of Women
Voters of N.C., 135 S.Ct. 1735 (2015) (mem.). This denial
automatically reinstituted the preliminary injunction, restoring
same-day registration and out-of-precinct voting pending the
outcome of trial in this case. North Carolina v. League of
Women Voters of N.C., 135 S. Ct. at 6.
That consolidated trial was scheduled to begin on July 13,
2015. N.C. State Conf., 2016 WL 1650774, at *18. However, on
June 18, 2015, the General Assembly ratified House Bill 836,
enacted as Session Law (“SL”) 2015-103. Id. at *13, *18. This
new law amended the photo ID requirement by permitting a voter
without acceptable ID to cast a provisional ballot if he
completed a declaration stating that he had a reasonable
impediment to acquiring acceptable photo ID (“the reasonable
impediment exception”). Id. at *13. Given this enactment, the
district court bifurcated trial of the case. Id. at *18.
Beginning in July 2015, the court conducted a trial on the
challenges to all of the provisions except the photo ID
requirement. Id. In January 2016, the court conducted a
separate trial on the photo ID requirement, as modified by the
reasonable impediment exception. Id.21
On April 25, 2016, the district court entered judgment
against the Plaintiffs on all of their claims as to all of the
challenged provisions. Id. at *171. The court found no
discriminatory results under § 2, no discriminatory intent under
§ 2 or the Fourteenth and Fifteenth Amendments, no undue burden
on the right to vote generally under the Fourteenth Amendment,
and no violation of the Twenty-Sixth Amendment. See id. at
*133-34, *148, *164, *167. At the same time, acknowledging the
imminent June primary election, the court temporarily extended
the preliminary injunction of same-day registration and out-of-
precinct voting through that election. Id. at *167. The photo
ID requirement went into effect as scheduled for the first time
in the March 2016 primary election, and was again in effect
during the June primary election. Id. at *19, *171.
Plaintiffs timely noted this appeal. J.A. 24967, 24970,
24976, 24980. They also requested that we stay the district
court’s mandate and extend the preliminary injunction, which we
did pending our decision in this case. Order Extending the
Existing Stay, No. 16-1468 (Dkt. No. 122).
On appeal, Plaintiffs reiterate their attacks on the photo
ID requirement, the reduction in days of early voting, and the
elimination of same-day registration, out-of-precinct voting,
and preregistration, alleging discrimination against African
Americans and Hispanics. Because the record evidence is limited
22
regarding Hispanics, we confine our analysis to African
Americans. We hold that the challenged provisions of SL 2013-
381 were enacted with racially discriminatory intent in
violation of the Equal Protection Clause of the Fourteenth
Amendment and § 2 of the Voting Rights Act. We need not and do
not reach Plaintiffs’ remaining claims.
II.
A.
An appellate court can reverse a district court’s factual
findings only if clearly erroneous. United States v. U.S.
Gypsum Co., 333 U.S. 364, 395 (1948). This standard applies to
the ultimate factual question of a legislature’s discriminatory
motivation. See Pullman-Standard v. Swint, 456 U.S. 273, 287-88
(1982); Hunt v. Cromartie (Cromartie I), 526 U.S. 541, 549
(1999). Such a finding is clearly erroneous if review of the
entire record leaves the appellate court “with the definite and
firm conviction that the [d]istrict [c]ourt’s key findings are
mistaken.” Easley v. Cromartie (Cromartie II), 532 U.S. 234,
243 (2001) (citation and internal quotation marks omitted).
This is especially so when “the key evidence consisted primarily
of documents and expert testimony” and “[c]redibility
evaluations played a minor role.” Id.23
Moreover, if “the record permits only one resolution of the
factual issue” of discriminatory purpose, then an appellate
court need not remand the case to the district court. Pullman-
Standard, at 292; see Cromartie II, 532 U.S. at 257 (reversing,
without remanding, three-judge court’s factual finding that
racial intent predominated in creation of challenged
redistricting plan); Hunter v. Underwood, 471 U.S. 222, 229
(1985) (affirming Court of Appeals’ reversal without remand
where district court’s finding of no discriminatory purpose was
clearly erroneous); Dayton Bd. of Educ. v. Brinkman, 443 U.S.
526, 534, 542 (1979) (affirming Court of Appeals’ reversal of
finding of no intentional discrimination with remand only to
enter remedy order).
In Village of Arlington Heights v. Metropolitan Housing
Development Corp., 429 U.S. 252 (1977), the Supreme Court
addressed a claim that racially discriminatory intent motivated
a facially neutral governmental action. The Court recognized
that a facially neutral law, like the one at issue here, can be
motivated by invidious racial discrimination. Id. at 264-66.
If discriminatorily motivated, such laws are just as abhorrent,
and just as unconstitutional, as laws that expressly
discriminate on the basis of race. Id.; Washington v. Davis,
426 U.S. 229, 241 (1976).
24
When considering whether discriminatory intent motivates a
facially neutral law, a court must undertake a “sensitive
inquiry into such circumstantial and direct evidence of intent
as may be available.” Arlington Heights, 429 U.S. at 266.
Challengers need not show that discriminatory purpose was the
“sole[]” or even a “primary” motive for the legislation, just
that it was “a motivating factor.” Id. at 265-66 (emphasis
added). Discriminatory purpose “may often be inferred from the
totality of the relevant facts, including the fact, if it is
true, that the law bears more heavily on one race than another.”
Davis, 426 U.S. at 242. But the ultimate question remains: did
the legislature enact a law “because of,” and not “in spite of,”
its discriminatory effect. Pers. Adm’r of Mass. v. Feeney, 442
U.S. 256, 279 (1979).
In Arlington Heights, the Court set forth a nonexhaustive
list of factors to consider in making this sensitive inquiry.
These include: “[t]he historical background of the [challenged]
decision”; “[t]he specific sequence of events leading up to the
challenged decision”; “[d]epartures from normal procedural
sequence”; the legislative history of the decision; and of
course, the disproportionate “impact of the official action --
whether it bears more heavily on one race than another.”
Arlington Heights, 429 U.S. at 266-67 (internal quotation marks
omitted).
25
In instructing courts to consider the broader context
surrounding the passage of legislation, the Court has recognized
that “[o]utright admissions of impermissible racial motivation
are infrequent and plaintiffs often must rely upon other
evidence.” Cromartie I, 526 U.S. at 553. In a vote denial case
such as the one here, where the plaintiffs allege that the
legislature imposed barriers to minority voting, this holistic
approach is particularly important, for “[d]iscrimination today
is more subtle than the visible methods used in 1965.” H.R.
Rep. No. 109-478, at 6 (2006), as reprinted in 2006 U.S.C.C.A.N.
618, 620. Even “second-generation barriers” to voting, while
facially race neutral, may nonetheless be motivated by
impermissible racial discrimination. Shelby Cty., 133 S. Ct. at
2635 (Ginsburg, J., dissenting) (cataloguing ways in which
facially neutral voting laws continued to discriminate against
minorities even after passage of Voting Rights Act).
“Once racial discrimination is shown to have been a
‘substantial’ or ‘motivating’ factor behind enactment of the
law, the burden shifts to the law’s defenders to demonstrate
that the law would have been enacted without this factor.”
Hunter, 471 U.S. at 228. When determining if this burden has
been met, courts must be mindful that “racial discrimination is
not just another competing consideration.” Arlington Heights,
429 U.S. at 265-66. For this reason, the judicial deference
26
accorded to legislators when “balancing numerous competing
considerations” is “no longer justified.” Id. Instead, courts
must scrutinize the legislature’s actual non-racial motivations
to determine whether they alone can justify the legislature’s
choices. See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle,
429 U.S. 274, 287 (1977); cf. Miss. Univ. for Women v. Hogan,
458 U.S. 718, 728 (1982) (describing “inquiry into the actual
purposes underlying a statutory scheme” that classified based on
gender (emphasis added) (internal quotation marks omitted)). If
a court finds that a statute is unconstitutional, it can enjoin
the law. See, e.g., Hunter, 471 U.S. at 231; Anderson v.
Martin, 375 U.S. 399, 404 (1964).
B.
In the context of a § 2 discriminatory intent analysis, one
of the critical background facts of which a court must take
notice is whether voting is racially polarized. Indeed, to
prevail in a case alleging discriminatory dilution of minority
voting strength under § 2, a plaintiff must prove this fact as a
threshold showing. See Gingles, 478 U.S. at 51, 56, 62. Racial
polarization “refers to the situation where different races
. . . vote in blocs for different candidates.” Id. at 62. This
legal concept “incorporates neither causation nor intent”
regarding voter preferences, for “[i]t is the difference between
the choices made by blacks and whites -- not the reasons for
27
that difference -- that results” in the opportunity for
discriminatory laws to have their intended political effect.
Id. at 62-63.
While the Supreme Court has expressed hope that “racially
polarized voting is waning,” it has at the same time recognized
that “racial discrimination and racially polarized voting are
not ancient history.” Bartlett v. Strickland, 556 U.S. 1, 25
(2009). In fact, recent scholarship suggests that, in the years
following President Obama’s election in 2008, areas of the
country formerly subject to § 5 preclearance have seen an
increase in racially polarized voting. See Stephen
Ansolabehere, Nathaniel Persily & Charles Stewart III, Regional
Differences in Racial Polarization in the 2012 Presidential
Election: Implications for the Constitutionality of Section 5 of
the Voting Rights Act, 126 Harv. L. Rev. F. 205, 206 (2013).
Further, “[t]his gap is not the result of mere partisanship, for
even when controlling for partisan identification, race is a
statistically significant predictor of vote choice, especially
in the covered jurisdictions.” Id.
Racially polarized voting is not, in and of itself,
evidence of racial discrimination. But it does provide an
incentive for intentional discrimination in the regulation of
elections. In reauthorizing the Voting Rights Act in 2006,
Congress recognized that “[t]he potential for discrimination in
28
environments characterized by racially polarized voting is
great.” H.R. Rep. No. 109-478, at 35. This discrimination can
take many forms. One common way it has surfaced is in
challenges centered on vote dilution, where “manipulation of
district lines can dilute the voting strength of politically
cohesive minority group members.” De Grandy, 512 U.S. at 1007(emphasis added); see also Voinovich v. Quilter, 507 U.S. 146,
153-54 (1993). It is the political cohesiveness of the minority
groups that provides the political payoff for legislators who
seek to dilute or limit the minority vote.
The Supreme Court squarely confronted this connection in
LULAC. There, the record evidence revealed racially polarized
voting, such that 92% of Latinos voted against an incumbent of a
particular party, whereas 88% of non-Latinos voted for him. 548
U.S. at 427. The Court explained how this racial polarization
provided the impetus for the discriminatory vote dilution
legislation at issue in that case: “In old District 23 the
increase in Latino voter registration and overall population,
the concomitant rise in Latino voting power in each successive
election, the near-victory of the Latino candidate of choice in
2002, and the resulting threat to the” incumbent representative
motivated the controlling party to dilute the minority vote.
Id. at 428 (citation omitted). Although the Court grounded its
holding on the § 2 results test, which does not require proof of
29
intentional discrimination, the Court noted that the challenged
legislation bore “the mark of intentional discrimination.” Id.
at 440.
The LULAC Court addressed a claim of vote dilution, but its
recognition that racially polarized voting may motivate
politicians to entrench themselves through discriminatory
election laws applies with equal force in the vote denial
context. Indeed, it applies perhaps even more powerfully in
cases like that at hand, where the State has restricted access
to the franchise. This is so because, unlike in redistricting,
where states may consider race and partisanship to a certain
extent, see, e.g., Miller v. Johnson, 515 U.S. 900, 920 (1995),
legislatures cannot restrict voting access on the basis of race.
(Nor, we note, can legislatures restrict access to the franchise
based on the desire to benefit a certain political party. See
Anderson v. Celebrezze, 460 U.S. 780, 792-93 (1983).)
Using race as a proxy for party may be an effective way to
win an election. But intentionally targeting a particular
race’s access to the franchise because its members vote for a
particular party, in a predictable manner, constitutes
discriminatory purpose. This is so even absent any evidence of
race-based hatred and despite the obvious political dynamics. A
state legislature acting on such a motivation engages in
30
intentional racial discrimination in violation of the Fourteenth
Amendment and the Voting Rights Act.
III.
With these principles in mind, we turn to their application
in the case at hand.
A.
Arlington Heights directs us to consider “[t]he historical
background of the decision” challenged as racially
discriminatory. 429 U.S. at 267. Examination of North
Carolina’s history of race discrimination and recent patterns of
official discrimination, combined with the racial polarization
of politics in the state, seems particularly relevant in this
inquiry. The district court erred in ignoring or minimizing
these facts.
Unquestionably, North Carolina has a long history of race
discrimination generally and race-based vote suppression in
particular. Although we recognize its limited weight, see
Shelby Cty., 133 S. Ct. at 2628-29, North Carolina’s pre-1965
history of pernicious discrimination informs our inquiry. For
“[i]t was in the South that slavery was upheld by law until
uprooted by the Civil War, that the reign of Jim Crow denied
African–Americans the most basic freedoms, and that state and
31
local governments worked tirelessly to disenfranchise citizens
on the basis of race.” Id. at 2628.
While it is of course true that “history did not end in
1965,” id., it is equally true that SL 2013-381 imposes the
first meaningful restrictions on voting access since that date
-- and a comprehensive set of restrictions at that. Due to this
fact, and because the legislation came into being literally
within days of North Carolina’s release from the preclearance
requirements of the Voting Rights Act, that long-ago history
bears more heavily here than it might otherwise. Failure to so
recognize would risk allowing that troubled history to “pick[]
up where it left off in 1965” to the detriment of African
American voters in North Carolina. LWV, 769 F.3d at 242.
In considering Plaintiffs’ discriminatory results claim
under § 2, the district court expressly and properly recognized
the State’s “shameful” history of “past discrimination.” N.C.
State Conf., 2016 WL 1650774, at *83-86. But the court
inexplicably failed to grapple with that history in its analysis
of Plaintiffs’ discriminatory intent claim. Rather, when
assessing the intent claim, the court’s analysis on the point
consisted solely of the finding that “there is little evidence
of official discrimination since the 1980s,” accompanied by a
footnote dismissing examples of more recent official
discrimination. See id. at *143.
32
That finding is clearly erroneous. The record is replete
with evidence of instances since the 1980s in which the North
Carolina legislature has attempted to suppress and dilute the
voting rights of African Americans. In some of these instances,
the Department of Justice or federal courts have determined that
the North Carolina General Assembly acted with discriminatory
intent, “reveal[ing] a series of official actions taken for
invidious purposes.” Arlington Heights, 429 U.S. at 267. In
others, the Department of Justice or courts have found that the
General Assembly’s action produced discriminatory results. The
latter evidence, of course, proves less about discriminatory
intent than the former, but it is informative. A historical
pattern of laws producing discriminatory results provides
important context for determining whether the same
decisionmaking body has also enacted a law with discriminatory
purpose. See, e.g., Veasey v. Abbott, No. 14-41127, 2016 WL
3923868 (5th Cir. July 20, 2016) (en banc) (considering as
relevant, in intentional discrimination analysis of voter ID
law, DOJ letters and previous court cases about results and
intent).
The record reveals that, within the time period that the
district court found free of “official discrimination” (1980 to
2013), the Department of Justice issued over fifty objection
letters to proposed election law changes in North Carolina --
33
including several since 2000 -- because the State had failed to
prove the proposed changes would have no discriminatory purpose
or effect. See U.S. Dep’t of Justice, Civil Rights Div., Voting
Determination Letters for North Carolina (DOJ Letters) (Aug. 7,
2015), https://www.justice.gov/crt/voting-determination-letters-
north-carolina; see also Regents of the Univ. of California v.
Bakke, 438 U.S. 265, 305 (1978) (referring to objections of the
Department of Justice under § 5 as “administrative finding[s] of
discrimination”). 5 Twenty-seven of those letters objected to
laws that either originated in the General Assembly or
originated with local officials and were approved by the General
Assembly. See DOJ Letters.
5
Most recently, the Department of Justice objected to a law
the General Assembly enacted in 2011, Session Law (“SL”) 2011-
174. That statute changed the method of election for the school
board in Pitt County, North Carolina by reducing the number of
members and adding an at-large seat. See Letter from Thomas E.
Perez, Assistant Att’y General, Dept. of Just., to Robert T.
Sonnenberg, In-house Counsel, Pitt Cty. Sch. (Apr. 30, 2012), at
1, available at
https://www.justice.gov/sites/default/files/crt/legacy/2014/05/3
0/l_120430.pdf. The Department of Justice conducted an
Arlington Heights analysis and declined to preclear the
retrogressive law. Id. at 1-4. Key facts in the discriminatory
intent analysis included: that “[t]he county’s elections are
generally racially polarized,” that “African Americans have
never elected a candidate of choice to a county-wide office,”
that “Pitt County has a history of challenges to at-large
positions under the Voting Rights Act,” that the process for
enacting the law represented “a complete departure from the
normal procedures,” and that the “discriminatory effect was not
necessary to achieve the stated goal” of the law. Id. at 2-4.
34
During the same period, private plaintiffs brought fifty-
five successful cases under § 2 of the Voting Rights Act. J.A.
1260; Anita S. Earls et al., Voting Rights in North Carolina:
1982-2006, 17 S. Cal. Rev. L. & Soc. Just. 577 (2008). Ten
cases ended in judicial decisions finding that electoral schemes
in counties and municipalities across the state had the effect
of discriminating against minority voters. See, e.g., Ward v.
Columbus Cty., 782 F. Supp. 1097 (E.D.N.C. 1991); Johnson v.
Halifax Cty., 594 F. Supp. 161 (E.D.N.C. 1984) (granting
preliminary injunction). Forty-five cases were settled
favorably for plaintiffs out of court or through consent degrees
that altered the challenged voting laws. See, e.g., Daniels v.
Martin Cty. Bd. of Comm’rs., No. 4:89-cv-00137 (E.D.N.C. 1992);
Hall v. Kennedy, No. 3:88-cv-00117 (E.D.N.C. 1989); Montgomery
Cty. Branch of the NAACP v. Montgomery Cty. Bd. of Elections,
No. 3:90-cv-00027 (M.D.N.C. 1990). On several occasions, the
United States intervened in cases or filed suit independently.
See, e.g., United States v. Anson Bd. of Educ., No. 3:93-cv-
00210 (W.D.N.C. 1994); United States v. Granville Cty. Bd. of
Educ., No. 5:87-cv-00353 (E.D.N.C. 1989); United States v.
Lenoir Cty., No. 87-105-cv-84 (E.D.N.C. 1987).
And, of course, the case in which the Supreme Court
announced the standard governing § 2 results claims -- Thornburg
v. Gingles -- was brought by a class of African American
35
citizens in North Carolina challenging a statewide redistricting
plan. 478 U.S. at 35. There the Supreme Court affirmed
findings by the district court that each challenged district
exhibited “racially polarized voting,” and held that “the legacy
of official discrimination in voting matters, education,
housing, employment, and health services . . . acted in concert
with the multimember districting scheme to impair the ability”
of African American voters to “participate equally in the
political process.” Id. at 80.
And only a few months ago (just weeks before the district
court issued its opinion in the case at hand), a three-judge
court addressed a redistricting plan adopted by the same General
Assembly that enacted SL 2013-381. Harris v. McCrory, No. 1:13-
CV-949, 2016 WL 482052, at *1-2 (M.D.N.C. Feb. 5, 2016), prob.
juris. noted, __ S. Ct. __, No. 15-1262, 2016 WL 1435913 (June
27, 2016). The court held that race was the predominant motive
in drawing two congressional districts, in violation of the
Equal Protection Clause. Id. at *1-2, *17 & n.9. Contrary to
the district court’s suggestion, see N.C. State Conf., 2016 WL
1650774, at *143 n.223, a holding that a legislature
impermissibly relied on race certainly provides relevant
evidence as to whether race motivated other election legislation
passed by the same legislature.
36
The district court failed to take into account these cases
and their important takeaway: that state officials continued in
their efforts to restrict or dilute African American voting
strength well after 1980 and up to the present day. Only the
robust protections of § 5 and suits by private plaintiffs under
§ 2 of the Voting Rights Act prevented those efforts from
succeeding. These cases also highlight the manner in which race
and party are inexorably linked in North Carolina. This fact
constitutes a critical -- perhaps the most critical -- piece of
historical evidence here. The district court failed to
recognize this linkage, leading it to accept “politics as usual”
as a justification for many of the changes in SL 2013-381. But
that cannot be accepted where politics as usual translates into
race-based discrimination.
As it did with the history of racial discrimination, the
district court again recognized this reality when analyzing
whether SL 2013-381 had a discriminatory result, but not when
analyzing whether it was motivated by discriminatory intent. In
its results analysis, the court noted that racially polarized
voting between African Americans and whites remains prevalent in
North Carolina. N.C. State Conf., 2016 WL 1650774, at *86-87.
Indeed, at trial the State admitted as much. Id. at *86. As
one of the State’s experts conceded, “in North Carolina,
African-American race is a better predictor for voting
37
Democratic than party registration.” J.A. 21400. For example,
in North Carolina, 85% of African American voters voted for John
Kerry in 2004, and 95% voted for President Obama in 2008. N.C.
State Conf., 2016 WL 1650774, at *86. In comparison, in those
elections, only 27% of white North Carolinians voted for John
Kerry, and only 35% for President Obama. Id.Thus, whether the General Assembly knew the exact numbers,
it certainly knew that African American voters were highly
likely, and that white voters were unlikely, to vote for
Democrats. And it knew that, in recent years, African Americans
had begun registering and voting in unprecedented numbers.
Indeed, much of the recent success of Democratic candidates in
North Carolina resulted from African American voters overcoming
historical barriers and making their voices heard to a degree
unmatched in modern history.
Despite this, the district court took no issue with one of
the legislature’s stated purposes in enacting SL 2013-381 -- to
“mov[e] the law back to the way it was.” N.C. State Conf., 2016
WL 1650774, at *111. Rather, the court apparently regarded this
as entirely appropriate. The court noted repeatedly that the
voting mechanisms that SL 2013-381 restricts or eliminates were
ratified “relatively recently,” “almost entirely along party
lines,” when “Democrats controlled” the legislature; and that
SL 2013-381 was similarly ratified “along party lines” after
38
“Republicans gained . . . control of both houses.” Id. at *2-7,
*12.
Thus, the district court apparently considered SL 2013-381
simply an appropriate means for one party to counter recent
success by another party. We recognize that elections have
consequences, but winning an election does not empower anyone in
any party to engage in purposeful racial discrimination. When a
legislature dominated by one party has dismantled barriers to
African American access to the franchise, even if done to gain
votes, “politics as usual” does not allow a legislature
dominated by the other party to re-erect those barriers.
The record evidence is clear that this is exactly what was
done here. For example, the State argued before the district
court that the General Assembly enacted changes to early voting
laws to avoid “political gamesmanship” with respect to the hours
and locations of early voting centers. J.A. 22348. As
“evidence of justifications” for the changes to early voting,
the State offered purported inconsistencies in voting hours
across counties, including the fact that only some counties had
decided to offer Sunday voting. Id. The State then elaborated
on its justification, explaining that “[c]ounties with Sunday
voting in 2014 were disproportionately black” and
“disproportionately Democratic.” J.A. 22348-49. In response,
SL 2013-381 did away with one of the two days of Sunday voting.
39
See N.C. State Conf., 2016 WL 1650774, at *15. Thus, in what
comes as close to a smoking gun as we are likely to see in
modern times, the State’s very justification for a challenged
statute hinges explicitly on race -- specifically its concern
that African Americans, who had overwhelmingly voted for
Democrats, had too much access to the franchise. 6
These contextual facts, which reveal the powerful
undercurrents influencing North Carolina politics, must be
considered in determining why the General Assembly enacted SL
2013-381. Indeed, the law’s purpose cannot be properly
understood without these considerations. The record makes clear
that the historical origin of the challenged provisions in this
statute is not the innocuous back-and-forth of routine partisan
struggle that the State suggests and that the district court
accepted. Rather, the General Assembly enacted them in the
immediate aftermath of unprecedented African American voter
participation in a state with a troubled racial history and
racially polarized voting. The district court clearly erred in
ignoring or dismissing this historical background evidence, all
of which supports a finding of discriminatory intent.
6
Of course, state legislators also cannot impermissibly
dilute or deny the votes of opponent political parties, see
Anderson, 460 U.S. at 793 -- as this same General Assembly was
found to have done earlier this year. See Raleigh Wake Citizens
Ass’n v. Wake Cty. Bd. of Elections, No. 16-1270, 2016 WL
3568147 (4th Cir. July 1, 2016).
40
B.
Arlington Heights also instructs us to consider the
“specific sequence of events leading up to the challenged
decision.” 429 U.S. at 267. In doing so, a court must consider
“[d]epartures from the normal procedural sequence,” which may
demonstrate “that improper purposes are playing a role.” Id.
The sequential facts found by the district court are undeniably
accurate. N.C. State Conf., 2016 WL 1650774, at *8-13. Indeed,
they are undisputed. Id. And they are devastating. The record
shows that, immediately after Shelby County, the General
Assembly vastly expanded an earlier photo ID bill and rushed
through the legislative process the most restrictive voting
legislation seen in North Carolina since enactment of the Voting
Rights Act of 1965. Id. The district court erred in refusing
to draw the obvious inference that this sequence of events
signals discriminatory intent.
The district court found that prior to Shelby County,
SL 2013-381 numbered only sixteen pages and contained none of
the challenged provisions, with the exception of a much less
restrictive photo ID requirement. Id. at *8, *143-44. As the
court further found, this pre-Shelby County bill was afforded
more than three weeks of debate in public hearings and almost
three more weeks of debate in the House. Id. at *8. For this
version of the bill, there was some bipartisan support: “[f]ive
41
House Democrats joined all present Republicans in voting for the
voter-ID bill.” Id.The district court found that SL 2013-381 passed its first
read in the Senate on April 25, 2013, where it remained in the
Senate Rules Committee. Id. At that time, the Supreme Court
had heard argument in Shelby County, but had issued no opinion.
Id. “So,” as the district court found, “the bill sat.” Id.For the next two months, no public debates were had, no public
amendments made, and no action taken on the bill.
Then, on June 25, 2013, the Supreme Court issued its
opinion in Shelby County. Id. at *9. The very next day, the
Chairman of the Senate Rules Committee proclaimed that the
legislature “would now move ahead with the full bill,” which he
recognized would be “omnibus” legislation. Id. at *9. After
that announcement, no further public debate or action occurred
for almost a month. Id. As the district court explained, “[i]t
was not until July 23 . . . that an expanded bill, including the
election changes challenged in this case, was released.” Id. at
*144.
The new bill -- now fifty-seven pages in length -- targeted
four voting and registration mechanisms, which had previously
expanded access to the franchise, and provided a much more
stringent photo ID provision. See 2013 N.C. Sess. Laws 381.
Post-Shelby County, the change in accepted photo IDs is of
42
particular note: the new ID provision retained only those types
of photo ID disproportionately held by whites and excluded those
disproportionately held by African Americans. N.C. State Conf.,
2016 WL 1650774, at *37, *142. The district court specifically
found that “the removal of public assistance IDs” in particular
was “suspect,” because “a reasonable legislator [would be] aware
of the socioeconomic disparities endured by African Americans
[and] could have surmised that African Americans would be more
likely to possess this form of ID.” Id. at *142.
Moreover, after the General Assembly finally revealed the
expanded SL 2013-381 to the public, the legislature rushed it
through the legislative process. The new SL 2013-381 moved
through the General Assembly in three days: one day for a
public hearing, two days in the Senate, and two hours in the
House. Id. at *9-12. The House Democrats who supported the
pre-Shelby County bill now opposed it. Id. at *12. The House
voted on concurrence in the Senate’s version, rather than
sending the bill to a committee. Id. at *12. This meant that
the House had no opportunity to offer its own amendments before
the up-or-down vote on the legislation; that vote proceeded on
strict party lines. Id.; see J.A. 1299; N.C. H.R. Rules 43.2,
43.3, 44. The Governor, of the same party as the proponents of
the bill, then signed the bill into law. N.C. State Conf., 2016
WL 1650774, at *13. This hurried pace, of course, strongly
43
suggests an attempt to avoid in-depth scrutiny. See, e.g.,
Veasey, 2016 WL 3923868, at *12 (noting as suspicious voter ID
law’s “three-day passage through the Senate”). Indeed, neither
this legislature -- nor, as far as we can tell, any other
legislature in the Country -- has ever done so much, so fast, to
restrict access to the franchise.
The district court erred in accepting the State’s efforts
to cast this suspicious narrative in an innocuous light. To do
so, the court focused on certain minor facts instead of
acknowledging the whole picture. For example, although the
court specifically found the above facts, it dismissed
Plaintiffs’ argument that this sequence of events demonstrated
unusual legislative speed because the legislature “acted within
all [of its] procedural rules.” N.C. State Conf., 2016 WL
1650774, at *145. But, of course, a legislature need not break
its own rules to engage in unusual procedures. Even just
compared to the process afforded the pre-Shelby County bill, the
process for the “full bill” was, to say the very least, abrupt.
Similarly, the district court accused Plaintiffs of
“ignor[ing] the extensive debate and consideration the initial
voter-ID bill received in the spring.” Id. at *146. But
because the pre-Shelby County bill did not contain any of the
provisions challenged here, that debate hardly seems probative.
The district court also quoted one senator who opposed the new
44
“full bill” as saying that the legislators had “a good and
thorough debate.” Id. at *12, *145. We note, however, that
many more legislators expressed dismay at the rushed process.
Id. at *145. Indeed, as the court itself noted, “[s]everal
Democratic senators characterized the bill as voter suppression
of minorities. Others characterized the bill as partisan.” Id.
at *12 (citations omitted). Republican senators “strongly
denied such claims,” while at the same time linking the bill to
partisan goals: that “the bill reversed past practices that
Democrats passed to favor themselves.” Id.Finally, the district court dismissed the expanded law’s
proximity to the Shelby County decision as above suspicion. The
Court found that the General Assembly “would not have been
unreasonable” to wait until after Shelby County to consider the
“full bill” because it could have concluded that the provisions
of the “full bill” were “simply not worth the administrative and
financial cost” of preclearance. Id. at *144. Although desire
to avoid the hassle of the preclearance process could, in
another case, justify a decision to await the outcome in Shelby
County, that inference is not persuasive in this case. For
here, the General Assembly did not simply wait to enact changes
to its election laws that might require the administrative
hassle of, but likely would pass, preclearance. Rather, after
Shelby County it moved forward with what it acknowledged was an
45
omnibus bill that restricted voting mechanisms it knew were used
disproportionately by African Americans, id. at *148, and so
likely would not have passed preclearance. And, after Shelby
County, the legislature substantially changed the one provision
that it had fully debated before. As noted above, the General
Assembly completely revised the list of acceptable photo IDs,
removing from the list the IDs held disproportionately by
African Americans, but retaining those disproportionately held
by whites. Id. at *37, *142. This fact alone undermines the
possibility that the post-Shelby County timing was merely to
avoid the administrative costs.
Instead, this sequence of events -- the General Assembly’s
eagerness to, at the historic moment of Shelby County’s
issuance, rush through the legislative process the most
restrictive voting law North Carolina has seen since the era of
Jim Crow -- bespeaks a certain purpose. Although this factor,
as with the other Arlington Heights factors, is not dispositive
on its own, it provides another compelling piece of the puzzle
of the General Assembly’s motivation.
C.
Arlington Heights also recognizes that the legislative
history leading to a challenged provision “may be highly
relevant, especially where there are contemporaneous statements
by members of the decisionmaking body, minutes of its meetings,
46
or reports.” 429 U.S. at 268. Above, we have discussed much of
what can be gleaned from the legislative history of SL 2013-381
in the sequence of events leading up to its enactment.
No minutes of meetings about SL 2013-381 exist. And, as
the Supreme Court has recognized, testimony as to the purpose of
challenged legislation “frequently will be barred by
[legislative] privilege.” Id. That is the case here. See N.C.
State Conf., 2016 WL 1650774, at *71 n.124. The district court
was correct to note that statements from only a few legislators,
or those made by legislators after the fact, are of limited
value. See id. at 146; Barber v. Thomas, 560 U.S. 474, 485-86
(2010); Hunter, 471 U.S. at 228. 7
7 Some of the statements by those supporting the legislation
included a Republican precinct chairman who testified before the
House Rules Committee that the photo ID requirement would
“disenfranchise some of [Democrats’] special voting blocks
[sic],” and that “that within itself is the reason for the photo
voter ID, period, end of discussion.” See J.A. 1313-14; Yelton
testimony, Transcript of Public Hearing of the North Carolina
General Assembly, House Elections Committee (Apr. 10, 2013) at
51. Responding to the outcry over the law after its enactment,
the same witness later said publicly: “If [SL 2013-381] hurts
the whites so be it. If it hurts a bunch of lazy blacks that
want the government to give them everything, so be it.” See
J.A. 1313-14; Joe Coscarelli, Don Yelton, GOP Precinct Chair,
Delivers Most Baldly Racist Daily Show Interview of All Time,
New York Magazine, Oct. 24, 2013. These statements do not prove
that any member of the General Assembly necessarily acted with
discriminatory intent. But the sheer outrageousness of these
public statements by a party leader does provide some evidence
of the racial and partisan political environment in which the
General Assembly enacted the law.
47
We do find worthy of discussion, however, the General
Assembly’s requests for and use of race data in connection with
SL 2013-381. As explained in detail above, prior to and during
the limited debate on the expanded omnibus bill, members of the
General Assembly requested and received a breakdown by race of
DMV-issued ID ownership, absentee voting, early voting, same-day
registration, and provisional voting (which includes out-of-
precinct voting). N.C. State Conf., 2016 WL 1650774, at *136-
38, *148; J.A. 1628-29, 1637, 1640-41, 1782-97, 3084-3119.
This data revealed that African Americans
disproportionately used early voting, same-day registration, and
out-of-precinct voting, and disproportionately lacked DMV-issued
ID. N.C. State Conf., 2016 WL 1650774, at *148; J.A. 1782-97,
3084-3119. Not only that, it also revealed that African
Americans did not disproportionately use absentee voting; whites
did. J.A. 1796-97, 3744-47. SL 2013-381 drastically restricted
all of these other forms of access to the franchise, but
exempted absentee voting from the photo ID requirement. In sum,
relying on this racial data, the General Assembly enacted
legislation restricting all -- and only -- practices
disproportionately used by African Americans. When juxtaposed
against the unpersuasive non-racial explanations the State
proffered for the specific choices it made, discussed in more
48
detail below, we cannot ignore the choices the General Assembly
made with this data in hand.
D.
Finally, Arlington Heights instructs that courts also
consider the “impact of the official action” -- that is, whether
“it bears more heavily on one race than another.” 429 U.S. at
266 (internal quotation marks omitted). The district court
expressly found that “African Americans disproportionately used”
the removed voting mechanisms and disproportionately lacked DMV-
issued photo ID. N.C. State Conf., 2016 WL 1650774, at *37,
*136. Nevertheless, the court concluded that this
“disproportionate[] use[]” did not “significantly favor a
finding of discriminatory purpose.” Id. at *143. In doing so,
the court clearly erred. Apparently, the district court
believed that the disproportionate impact of the new legislation
“depends on the options remaining” after enactment of the
legislation. Id. at *136. Arlington Heights requires nothing
of the kind.
The Arlington Heights Court recognized that “[t]he impact
of [a governmental] decision” not to rezone for low-income
housing “bear[s] more heavily on racial minorities.” 429 U.S.
at 269. In concluding that the zoning decision had a
disproportionate impact, the Court explained that “[m]inorities
constitute[d] 18% of the Chicago area population, and 40% of the
49
income groups said to be eligible for” the low-income housing.
Id. The Court did not require those minority plaintiffs to show
that the Chicago area as a whole lacked low-income housing or
that the plaintiffs had no other housing options. Instead, it
was sufficient that the zoning decision excluded them from a
particular area. Id. at 260, 265-66, 269; see also City of
Memphis v. Greene, 451 U.S. 100, 110, 126 (1981) (indicating
that closing a street used primarily by African Americans had a
disproportionate impact, even though “the extent of the
inconvenience [was] not great”).
Thus, the standard the district court used to measure
impact required too much in the context of an intentional
discrimination claim. When plaintiffs contend that a law was
motivated by discriminatory intent, proof of disproportionate
impact is not “the sole touchstone” of the claim. Davis, 426
U.S. at 242. Rather, plaintiffs asserting such claims must
offer other evidence that establishes discriminatory intent in
the totality of the circumstances. Id. at 239-42. Showing
disproportionate impact, even if not overwhelming impact,
suffices to establish one of the circumstances evidencing
discriminatory intent. 8
8Interpreting Arlington Heights to require a more onerous
impact showing would eliminate the distinction between
discriminatory results claims under § 2 of the Voting Rights Act
(Continued)
50
Accordingly, the district court’s findings that African
Americans disproportionately used each of the removed
mechanisms, as well as disproportionately lacked the photo ID
required by SL 2013-381, if supported by the evidence,
establishes sufficient disproportionate impact for an Arlington
Heights analysis. As outlined above, the record evidence
provides abundant support for that holding.
Moreover, the district court also clearly erred in finding
that the cumulative impact of the challenged provisions of SL
2013-381 does not bear more heavily on African Americans. See
Clingman v. Beaver, 544 U.S. 581, 607-08 (2005) (O’Connor, J.,
concurring) (“A panoply of regulations, each apparently
defensible when considered alone, may nevertheless have the
combined effect of severely restricting participation and
competition.”). For example, the photo ID requirement
inevitably increases the steps required to vote, and so slows
the process. The early voting provision reduced the number of
days in which citizens can vote, resulting in more voters voting
and discriminatory intent claims under § 2 and the Constitution.
When plaintiffs contend that a law has a discriminatory result
under § 2, they need prove only impact. In that context, of
course plaintiffs must make a greater showing of
disproportionate impact. Otherwise, plaintiffs could prevail in
any and every case in which they proved any impact.
51
on Election Day. 9 Together, these produce longer lines at the
polls on Election Day, and absent out-of-precinct voting,
prospective Election Day voters may wait in these longer lines
only to discover that they have gone to the wrong precinct and
are unable to travel to their correct precincts. Thus,
cumulatively, the panoply of restrictions results in greater
disenfranchisement than any of the law’s provisions
individually.
The district court discounted the claim that these
provisions burden African Americans, citing the fact that
similar election laws exist or have survived challenges in other
states. See, e.g., N.C. State Conf., 2016 WL 1650774, at *45,
*139 (photo ID), *46 (early voting), *57 (same-day
registration), *66 (out-of-precinct voting), *69
(preregistration). But the sheer number of restrictive
9
The State unpersuasively contends that SL 2013-381’s “same
hours” provision leaves the opportunity to vote early
“materially the same as the early voting opportunities before
the bill was enacted,” despite the reduction in early voting
days. State Br. 51 (internal quotation marks omitted). The
same hours provision requires counties to offer the same number
of aggregate hours of early voting in midterm and presidential
elections as they did in the comparable 2010 midterm or 2012
presidential elections. N.C. State Conf., 2016 WL 1650774, at
*11. A critical problem with the State’s argument is that the
law provided that any county could waive out of this
requirement, and, in 2014, about 30% of the counties did waive
out of the requirement. See J.A. 9541-44. Moreover, longer
lines during the reduced number of days in which citizens can
vote would necessitate opening new polling sites and placing
them in high-demand locations; the law does not require either.
52
provisions in SL 2013-381 distinguishes this case from others.
See, e.g., Crawford v. Marion Cty. Election Bd., 553 U.S. 181,
185 (2008) (challenging only a photo ID requirement); Hunter,
471 U.S. at 223 (challenging only a felon and misdemeanant
disenfranchisement law); Veasey, 2016 WL 3923868, at *1
(challenging only a photo ID requirement). Moreover, removing
voting tools that have been disproportionately used by African
Americans meaningfully differs from not initially implementing
such tools. Cf. Harper v. Va. Bd. of Elections, 383 U.S. 663,
665 (1966) (“[O]nce the franchise is granted to the electorate,
lines may not be drawn which are inconsistent with the Equal
Protection Clause of the Fourteenth Amendment.”).
The district court also erred in suggesting that Plaintiffs
had to prove that the challenged provisions prevented African
Americans from voting at the same levels they had in the past.
No law implicated here -- neither the Fourteenth Amendment nor
§ 2 -- requires such an onerous showing. Emblematic of this
error is the almost dispositive weight the court gave to the
fact that African American aggregate turnout increased by 1.8%
in the 2014 midterm election as compared to the 2010 midterm
election. See N.C. State Conf., 2016 WL 1650774, at *18, *122,
*132. In addition to being beyond the scope of disproportionate
impact analysis under Arlington Heights, several factors counsel
against such an inference.
53
First, as the Supreme Court has explained, courts should
not place much evidentiary weight on any one election. See
Gingles, 478 U.S. at 74-77 (noting that the results of multiple
elections are more probative than the result of a single
election, particularly one held during pending litigation).
This is especially true for midterm elections. As the State’s
own expert testified, fewer citizens vote in midterm elections,
and those that do are more likely to be better educated, repeat
voters with greater economic resources. J.A. 23801-02; cf.
League of Women Voters of North Carolina, 135 S. Ct. at 6-7
(Ginsburg, J., dissenting) (noting that midterm primary
elections are “highly sensitive to factors likely to vary from
election to election,” more so than presidential elections).
Moreover, although aggregate African American turnout
increased by 1.8% in 2014, many African American votes went
uncounted. As the district court found, African Americans
disproportionately cast provisional out-of-precinct ballots,
which would have been counted absent SL 2013-381. See N.C.
State Conf., 2016 WL 1650774, at *63. And thousands of African
Americans were disenfranchised because they registered during
what would have been the same-day registration period but
because of SL 2013-381 could not then vote. See id. at *67.
Furthermore, the district court failed to acknowledge that a
1.8% increase in voting actually represents a significant
54
decrease in the rate of change. For example, in the prior four-
year period, African American midterm voting had increased by
12.2%. J.A. 1197.
In sum, while the district court recognized the undisputed
facts as to the impact of the challenged provisions of SL 2013-
381, it simply refused to acknowledge their import. The court
concluded its analysis by remarking that these provisions simply
eliminated a system “preferred” by African Americans as “more
convenient.” N.C. State Conf., 2016 WL 1650774, at *170. But
as the court itself found elsewhere in its opinion, “African
Americans . . . in North Carolina are disproportionately likely
to move, be poor, less educated, have less access to
transportation, and experience poor health.” Id. at *89.
These socioeconomic disparities establish that no mere
“preference” led African Americans to disproportionately use
early voting, same-day registration, out-of-precinct voting, and
preregistration. Nor does preference lead African Americans to
disproportionately lack acceptable photo ID. Yet the district
court refused to make the inference that undeniably flows from
the disparities it found many African Americans in North
Carolina experienced. Registration and voting tools may be a
simple “preference” for many white North Carolinians, but for
many African Americans, they are a necessity.
55
E.
In sum, assessment of the Arlington Heights factors
requires the conclusion that, at least in part, discriminatory
racial intent motivated the enactment of the challenged
provisions in SL 2013-381. The district court clearly erred in
holding otherwise. In large part, this error resulted from the
court’s consideration of each piece of evidence in a vacuum,
rather than engaging in the totality of the circumstances
analysis required by Arlington Heights. Any individual piece of
evidence can seem innocuous when viewed alone, but gains an
entirely different meaning when considered in context.
Our conclusion does not mean, and we do not suggest, that
any member of the General Assembly harbored racial hatred or
animosity toward any minority group. But the totality of the
circumstances -- North Carolina’s history of voting
discrimination; the surge in African American voting; the
legislature’s knowledge that African Americans voting translated
into support for one party; and the swift elimination of the
tools African Americans had used to vote and imposition of a new
barrier at the first opportunity to do so -- cumulatively and
unmistakably reveal that the General Assembly used SL 2013-381
to entrench itself. It did so by targeting voters who, based on
race, were unlikely to vote for the majority party. Even if
done for partisan ends, that constituted racial discrimination.
56
IV.
Because Plaintiffs have established race as a factor that
motivated enactment of the challenged provisions of SL 2013-381,
the burden now “shifts to the law’s defenders to demonstrate
that the law would have been enacted without this factor.”
Hunter, 471 U.S. at 228; Arlington Heights, 429 U.S. at 271
n.21. 10 Once the burden shifts, a court must carefully
scrutinize a state’s non-racial motivations to determine whether
they alone can explain enactment of the challenged law.
Arlington Heights, 429 U.S. at 265-66. “[J]udicial deference”
to the legislature’s stated justifications “is no longer
justified.” Id.A court assesses whether a law would have been enacted
without a racially discriminatory motive by considering the
substantiality of the state’s proffered non-racial interest and
how well the law furthers that interest. See Hunter, 471 U.S.
at 228-33; see also Mhany Mgmt., Inc. v. Cty. of Nassau, 819
F.3d 581, 614 (2d Cir. 2016) (considering “whether [non-racial]
concerns were sufficiently strong to cancel out any
10
We note that at least one of our sister circuits has
rejected the second step of this inquiry as inappropriate for
intent claims under § 2. See Askew v. City of Rome, 127 F.3d
1355, 1373 (11th Cir. 1997) (“[I]t is not a defense under the
Voting Rights Act that the same action would have been taken
regardless of the racial motive.”).
57
discriminatory animus” after shifting the burden under Arlington
Heights in a Fair Housing Act claim).
Given a state’s interest in the fair administration of its
elections, a rational justification can be imagined for many
election laws, including some of the challenged provisions here.
But a court must be mindful of the number, character, and scope
of the modifications enacted together in a single challenged law
like SL 2013-381. Only then can a court determine whether a
legislature would have enacted that law regardless of its impact
on African American voters.
In this case, despite finding that race was not a
motivating factor for enactment of the challenged provisions of
SL 2013-381, the district court addressed the State’s
justifications for each provision at length. N.C. State Conf.,
2016 WL 1650774, at *96-116, *147. The court did so, however,
through a rational-basis-like lens. For example, the court
found the General Assembly’s decision to eliminate same-day
registration “not unreasonable,” and found “at least plausible”
the reasons offered for excluding student IDs from the list of
qualifying IDs. Id. at *108, *142. But, of course, a finding
that legislative justifications are “plausible” and “not
unreasonable” is a far cry from a finding that a particular law
would have been enacted without considerations of race. As the
Supreme Court has made clear, such deference in that inquiry is
58
wholly inappropriate. See Arlington Heights, 429 U.S. at 265-66(explaining that because “racial discrimination is not just
another competing consideration,” a court must do much more than
review for “arbitrariness or irrationality”).
Accordingly, the ultimate findings of the district court
regarding the compelling nature of the State’s interests are
clearly erroneous. Typically, that fact would recommend remand.
But we need not remand where the record provides “a complete
understanding” of the merits, Tejada v. Dugger, 941 F.2d 1551,
1555 (11th Cir. 1991) (internal quotation marks omitted), and
“permits only one resolution of the factual issue,” Pullman-
Standard, 456 U.S. at 292. See also Withrow v. Larkin, 421 U.S.
35, 45 (1975) (declining to remand where Court “doubt[ed] that
such action . . . would add anything essential to the
determination of the merits”). After a total of four weeks of
trial, the district court entered a 479-page order based on more
than 25,000 pages of evidence. N.C. State Conf., 2016
WL 1650774, at *2. Although the court erred with respect to the
appropriate degree of deference due to the State’s proffered
justifications, that error affected only its ultimate finding
regarding their persuasive weight; it did not affect the court’s
extensive foundational findings regarding those justifications.
These foundational findings as to justifications for SL
2013-381 provide a more than sufficient basis for our review of
59
that law. For we are satisfied that this record is “complete,”
indeed as “complete” as could ever reasonably be expected, and
that remand would accomplish little. Tejada, 941 F.2d at 1555;
see Withrow, 421 U.S. at 45. And, after painstaking review of
the record, we must also conclude that it “permits only one
resolution of the factual issue.” Pullman-Standard, 456 U.S. at
292. The record evidence plainly establishes race as a “but-
for” cause of SL 2013-381. See Hunter, 471 U.S. at 232.
In enacting the photo ID requirement, the General Assembly
stated that it sought to combat voter fraud and promote public
confidence in the electoral system. See 2013 N.C. Sess. Laws
381. These interests echo those the Crawford Court held
justified a photo ID requirement in Indiana. 553 U.S. at 194-
97. The State relies heavily on that holding. But that
reliance is misplaced because of the fundamental differences
between Crawford and this case.
The challengers in Crawford did not even allege intentional
race discrimination. Rather, they mounted a facial attack on a
photo ID requirement as unduly burdensome on the right to vote
generally. The Crawford Court conducted an “Anderson-Burdick”
analysis, balancing the burden of a law on voters against the
state’s interests, and concluded that the photo ID requirement
“impose[d] only a limited burden on voters’ rights.” Crawford,
553 U.S. at 202-03 (internal quotation marks omitted). Given
60
that limited burden, the Court deferred to the Indiana
legislature’s choice of how to best serve its legitimate
interests. See id. at 194-97, 203.
That deference does not apply here because the evidence in
this case establishes that, at least in part, race motivated the
North Carolina legislature. Thus, we do not ask whether the
State has an interest in preventing voter fraud -- it does -- or
whether a photo ID requirement constitutes one way to serve that
interest -- it may -- but whether the legislature would have
enacted SL 2013-381’s photo ID requirement if it had no
disproportionate impact on African American voters. The record
evidence establishes that it would not have.
The photo ID requirement here is both too restrictive and
not restrictive enough to effectively prevent voter fraud; “[i]t
is at once too narrow and too broad.” Romer v. Evans, 517 U.S.
620, 633 (1996); see Anderson, 460 U.S. at 805 (rejecting
election law as “both too broad and too narrow”). First, the
photo ID requirement, which applies only to in-person voting and
not to absentee voting, is too narrow to combat fraud. On the
one hand, the State has failed to identify even a single
individual who has ever been charged with committing in-person
voter fraud in North Carolina. See J.A. 6802. On the other,
the General Assembly did have evidence of alleged cases of mail-
in absentee voter fraud. J.A. 1678, 6802. Notably, the
61
legislature also had evidence that absentee voting was not
disproportionately used by African Americans; indeed, whites
disproportionately used absentee voting. J.A. 1796-97. The
General Assembly then exempted absentee voting from the photo ID
requirement. 2013 N.C. Sess. Laws 381, pt. 4. This was so even
though members of the General Assembly had proposed amendments
to require photo ID for absentee voting, N.C. Gen. Assemb.
Proposed Amend. No. A2, H589-AST-50 [v.2] (April 24, 2013), and
the bipartisan State Board of Elections 11 specifically requested
that the General Assembly remedy the potential for mail-in
absentee voter fraud and expressed no concern about in-person
voter fraud, J.A. 1678.
The photo ID requirement is also too broad, enacting
seemingly irrational restrictions unrelated to the goal of
combating fraud. This overbreadth is most stark in the General
Assembly’s decision to exclude as acceptable identification all
forms of state-issued ID disproportionately held by African
Americans. See N.C. State Conf., 2016 WL 1650774, at *142. The
State has offered little evidence justifying these exclusions.
11
The North Carolina State Board of Elections is the state
agency responsible for administering the elections process and
overseeing campaign finance disclosure. N.C. Gen. Stat. § 163-
19 (2016); see also About Us, North Carolina State Board of
Elections, http://www.ncsbe.gov/about-us (last visited July 25,
2016). The Board is composed of five members appointed by the
Governor, three of which belong to the same party as the
Governor. See N.C. Gen. Stat § 163-19.
62
Review of the record further undermines the contention that the
exclusions are tied to concerns of voter fraud. This is so
because voters who lack qualifying ID under SL 2013-381 may
apply for a free voter card using two of the very same forms of
ID excluded by the law. See N.C. State Conf., 2016 WL 1650774,
at *26. Thus, forms of state-issued IDs the General Assembly
deemed insufficient to prove a voter’s identity on Election Day
are sufficient if shown during a separate process to a separate
state official. In this way, SL 2013-381 elevates form over
function, creating hoops through which certain citizens must
jump with little discernable gain in deterrence of voter fraud. 12
The State’s proffered justifications regarding restrictions
on early voting similarly fail. The State contends that one
purpose of SL 2013-381’s reduction in early voting days was to
correct inconsistencies among counties in the locations and
hours of early voting centers. J.A. 3325; 22348-50. See, e.g.,
J.A. 3325 (senator supporting the law: “what we’re trying to do
is put some consistency into the process and allow for the
12Tellingly, as discussed above, it was only after Shelby
County that the General Assembly removed these IDs, retaining as
acceptable ID only those disproportionately held by whites.
N.C. State Conf., 2016 WL 1650774, at *142. Further, the
General Assembly had before it recommendations from the State
Board of Elections that the law include some of the excluded
IDs. J.A. 6866, 7392. Thus, the record evidence indicates that
the General Assembly’s decision in the wake of Shelby County to
exclude certain IDs had less to do with combating fraud, and
more to do with the race of the ID holders.
63
facilities to be similarly treated in one county as in being
[sic] all the counties”). In some minor ways, SL 2013-381 does
achieve consistency in the availability of early voting within
each county. See N.C. Gen. Stat. § 163-227.2(g) (mandating the
same days and hours within counties).
But the record does not offer support for the view that SL
2013-381 actually achieved consistency in early voting among the
various counties. For example, while the State contends that it
meant to eliminate inconsistencies between counties in the
availability of Sunday early voting, see, e.g., J.A. 12997-98;
20943-44; 22348-49, SL 2013-381 offers no fix for that. Rather,
it permits the Board of Elections of each county to determine,
in the Board’s discretion, whether to provide Sunday hours
during early voting. See J.A. 3325 (senator supporting the law:
“[the law] still leaves the county the choice of opening on a
Sunday or not opening on Sunday”); cf. N.C. Gen. Stat. § 163-
227.2(f) (“A county board may conduct [early voting] during
evenings or on weekends . . . .” (emphasis added)). Moreover,
as discussed above, the State explicitly and problematically
linked these “inconsistencies” in Sunday early voting to race
and party. J.A. 22348-49.
In other ways, the challenged provision actually promotes
inconsistency in the availability of early voting across North
Carolina. SL 2013-381 mandates that County Boards of Elections
64
offer at least the same number of aggregate hours of early
voting as offered in 2010 for future non-presidential elections
and as offered in 2012 for future presidential elections. See
N.C. Gen. Stat. § 163-227.2(g2). If, as the State asserts, the
2010 and 2012 elections saw great disparities in voting hours
across county lines, SL 2013-381 in effect codifies those
inconsistencies by requiring those same county-specific hours
for all future elections.
Moreover, in its quest for “consistency” in the
availability of early voting, the General Assembly again
disregarded the recommendations of the State Board of Elections.
The Board counseled that, although reducing the number of days
of early voting might ease administrative burdens for lower
turnout elections, doing so for high-turnout elections would
mean that “North Carolina voters’ needs will not be
accommodated.” J.A. 1700. The Board explained that reducing
early voting days would mean that “traffic will be increased on
Election Day, increasing demands for personnel, voting equipment
and other supplies, and resulting in likely increases to the
cost of elections.” J.A. 1700; see also J.A. 1870-72 (reducing
early voting days, according to one County Board of Elections,
would lead to “increased costs, longer lines, increased wait
times, understaffed sites, staff burn-out leading to mistakes,
65
and inadequate polling places; or, in a worst case scenario, all
of these problems together”).
Concerning same-day registration, the State justifies its
elimination as a means to avoid administrative burdens that
arise when verifying the addresses of those who register at the
very end of the early voting period. These concerns are real.
Even so, the complete elimination of same-day registration
hardly constitutes a remedy carefully drawn to accomplish the
State’s objectives. The General Assembly had before it
alternative proposals that would have remedied the problem
without abolishing the popular program. J.A. 1533-34; 6827-28.
The State Board of Elections had reported that same-day
registration “was a success.” J.A. 1529. The Board
acknowledged some of the conflicts between same-day registration
and mail verification, J.A. 1533-34, but clarified that “same
day registration does not result in the registration of voters
who are any less qualified or eligible to vote than” traditional
registrants, J.A. 6826, and that “undeliverable verification
mailings were not caused by the nature of same day
registration,” J.A. 6827. Indeed, over 97% of same-day
registrants passed the mail verification process. J.A. 6826.
The State Board of Elections believed this number would have
been higher had some counties not delayed the mail verification
process in violation of the law. J.A. 6826-28.
66
Again, the General Assembly ignored this advice. In other
circumstances we would defer to the prerogative of a legislature
to choose among competing policy proposals. But, in the broader
context of SL 2013-381’s multiple restrictions on voting
mechanisms disproportionately used by African Americans, we
conclude that the General Assembly would not have eliminated
same-day registration entirely but-for its disproportionate
impact on African Americans.
Turning to the elimination of out-of-precinct voting, the
State initially contended that the provision was justified to
“move[] the law back to the way it was”; i.e., the way it was
before it was broadened to facilitate greater participation in
the franchise by minority voters. J.A. 3307. Recognizing the
weakness of that justification, during the litigation of this
case, the State asserted that the General Assembly abolished
out-of-precinct voting to “permit[] election officials to
conduct elections in a timely and efficient manner.” J.A.
22328. Such post hoc rationalizations during litigation provide
little evidence as to the actual motivations of the legislature.
See Miss. Univ. for Women, 458 U.S. at 730 (analyzing whether
the State’s recited justification was “the actual purpose”
(emphasis added)); United States v. Virginia, 518 U.S. 515, 533
(1996) (“The justification must be genuine, not hypothesized or
invented post hoc in response to litigation.”).
67
Finally, the General Assembly’s elimination of
preregistration provides yet another troubling mismatch with its
proffered justifications. Here, the record makes clear that the
General Assembly contrived a problem in order to impose a
solution. According to the State, the preregistration system
was too confusing for young voters. SL 2013-381 thus sought, in
the words of a sponsor of the law, to “offer some clarity and
some certainty as to when” a “young person is eligible to vote,”
by eliminating preregistration altogether. J.A. 3317. 13 But, as
the district court itself noted, that explanation does not hold
water. The court found that “pre-registration’s removal []
ma[d]e registration more complex” and prone to confusion. N.C.
State Conf., 2016 WL 1650774, at *116 (emphasis added).
In sum, the array of electoral “reforms” the General
Assembly pursued in SL 2013-381 were not tailored to achieve its
purported justifications, a number of which were in all events
insubstantial. In many ways, the challenged provisions in SL
2013-381 constitute solutions in search of a problem. The only
clear factor linking these various “reforms” is their impact on
13 Strangely, the main evidence regarding this asserted
confusion appears to be a single senator’s testimony regarding
the experience of his high-school-aged son. See J.A. 3317
(senator indicating his son was confused about when to vote with
pre-registration). But even that testimony does not coherently
identify the problem that the law sought to remedy. See J.A.
3335 (same senator indicating his son was not confused about
when to vote under pre-SL 2013-381 law).
68
African American voters. The record thus makes obvious that the
“problem” the majority in the General Assembly sought to remedy
was emerging support for the minority party. Identifying and
restricting the ways African Americans vote was an easy and
effective way to do so. We therefore must conclude that race
constituted a but-for cause of SL 2013-381, in violation of the
Constitutional and statutory prohibitions on intentional
discrimination.
V.
As relief in this case, Plaintiffs ask that we declare the
challenged provisions in SL 2013-381 unconstitutional and
violative of § 2 of the Voting Rights Act, and that we
permanently enjoin each provision. They further ask that we
exercise our authority pursuant to § 3 of the Voting Rights Act
to authorize federal poll observers and place North Carolina
under preclearance. These requests raise issues of severability
and the proper scope of any equitable remedy. We address each
in turn.
A.
When discriminatory intent impermissibly motivates the
passage of a law, a court may remedy the injury -- the impact of
the legislation -- by invalidating the law. See, e.g., Hunter,
471 U.S. at 231; Anderson, 375 U.S. at 400-04. If a court finds
69
only part of the law unconstitutional, it may sever the
offending provision and leave the inoffensive portion of the law
intact. Leavitt v. Jane L., 518 U.S. 137, 139-40 (1996). State
law governs our severability analysis. Id. In North Carolina,
severability turns on whether the legislature intended that the
law be severable, Pope v. Easley, 556 S.E.2d 265, 268 (N.C.
2001), and whether provisions are “so interrelated and mutually
dependent” on others that they “cannot be enforced without
reference to another,” Fulton Corp. v. Faulkner, 481 S.E.2d 8, 9
(N.C. 1997).
We have held that discriminatory intent motivated only the
enactment of the challenged provisions of SL 2013-381. As an
omnibus bill, SL 2013-381 contains many other provisions not
subject to challenge here. We sever the challenged provisions
from the remainder of the law because it contains a severability
clause, see 2013 N.C. Sess. Laws 381 § 60.1, to which we defer
under North Carolina law. Pope, 556 S.E.2d at 268. Further,
the remainder of the law “can[] be enforced without” the
challenged provisions. Fulton Corp., 481 S.E.2d at 9.
Therefore, we enjoin only the challenged provisions of SL 2013-
381 regarding photo ID, early voting, same-day registration,
out-of-precinct voting, and preregistration.
70
WYNN, Circuit Judge, with whom FLOYD, Circuit Judge, joins,
writing for the court as to Part V.B.:
B.
As to the appropriate remedy for the challenged provisions,
“once a plaintiff has established the violation of a
constitutional or statutory right in the civil rights area,
. . . court[s] ha[ve] broad and flexible equitable powers to
fashion a remedy that will fully correct past wrongs.” Smith v.
Town of Clarkton, 682 F.2d 1055, 1068 (4th Cir. 1982); see Green
v. Cty. Sch. Bd., 391 U.S. 430, 437–39 (1968) (explaining that
once a court rules that an official act purposefully
discriminates, the “racial discrimination [must] be eliminated
root and branch”). In other words, courts are tasked with
shaping “[a] remedial decree . . . to place persons” who have
been harmed by an unconstitutional provision “in ‘the position
they would have occupied in the absence of [discrimination].’”
Virginia, 518 U.S. at 547 (last alteration in original) (quoting
Milliken v. Bradley, 433 U.S. 267, 280 (1977)).
The Supreme Court has established that official actions
motivated by discriminatory intent “ha[ve] no legitimacy at all
under our Constitution or under the [Voting Rights Act].” City
of Richmond v. United States, 422 U.S. 358, 378 (1975). Thus,
the proper remedy for a legal provision enacted with
discriminatory intent is invalidation. See id. at 378–79
71
(“[Official actions] animated by [a discriminatory] purpose have
no credentials whatsoever; for [a]cts generally lawful may
become unlawful when done to accomplish an unlawful end.” (last
alteration in original) (internal quotation marks omitted)); see
also Hunter, 471 U.S. at 229, 231–33 (affirming the invalidation
of a state constitutional provision because it was adopted with
the intent of disenfranchising African Americans); Washington v.
Seattle Sch. Dist. No. 1, 458 U.S. 457, 466, 470–71, 487 (1982)
(affirming a permanent injunction of a state initiative that was
motivated by a racially discriminatory purpose); Anderson, 375
U.S. at 403–04 (indicating that the purposefully discriminatory
use of race in a challenged law was “sufficient to make it
invalid”). Notably, the Supreme Court has invalidated a state
constitutional provision enacted with discriminatory intent even
when its “more blatantly discriminatory” portions had since been
removed. Hunter, 471 U.S. at 232–33.
Moreover, the fact that the General Assembly later amended
one of the challenged provisions does not change our conclusion
that invalidation of each provision is the appropriate remedy in
this case. Specifically, in 2015, the General Assembly enacted
SL 2015-103, which amended the photo ID requirement and added
the reasonable impediment exception. See 2015 N.C. Sess. Laws
103 § 8 (codified at N.C. Gen. Stat. §§ 163-82.8, 163-166.13,
163-166.15, 163-182.1B, 163-227.2). Our dissenting colleague
72
contends that even though we all agree that 1) the General
Assembly unconstitutionally enacted the photo ID requirement
with racially discriminatory intent, and 2) the remedy for an
unconstitutional law must completely cure the harm wrought by
the prior law, we should remand for the district court to
consider whether the reasonable impediment exception has
rendered our injunction of that provision unnecessary. But,
even if the State were able to demonstrate that the amendment
lessens the discriminatory effect of the photo ID requirement,
it would not relieve us of our obligation to grant a complete
remedy in this case. That remedy must reflect our finding that
the challenged provisions were motivated by an impermissible
discriminatory intent and must ensure that those provisions do
not impose any lingering burden on African American voters. We
cannot discern any basis upon which this record reflects that
the reasonable impediment exception amendment fully cures the
harm from the photo ID provision. Thus, remand is not
necessary.
While remedies short of invalidation may be appropriate if
a provision violates the Voting Rights Act only because of its
discriminatory effect, laws passed with discriminatory intent
inflict a broader injury and cannot stand. See Veasey, 2016 WL
3923868, at *36, *36 n.66 (distinguishing between the proper
remedy for a law enacted with a racially discriminatory purpose
73
and the more flexible range of remedies that should be
considered if the law has only a discriminatory effect).
Here, the amendment creating the reasonable impediment
exception does not invalidate or repeal the photo ID
requirement. It therefore falls short of the remedy that the
Supreme Court has consistently applied in cases of this nature.
Significantly, the burden rests on the State to prove that
its proposed remedy completely cures the harm in this case. See
Virginia, 518 U.S. at 547 (noting that the defendant “was
obliged to show that its remedial proposal ‘directly address[ed]
and relate[d] to’ the violation” (alterations in original)
(quoting Milliken, 433 U.S. at 282)); Green, 391 U.S. at 439(placing the burden on the defendant to prove that its plan
would effectively cure the violation). Here, nothing in this
record shows that the reasonable impediment exception ensures
that the photo ID law no longer imposes any lingering burden on
African American voters. To the contrary, the record
establishes that the reasonable impediment exception amendment
does not so fundamentally alter the photo ID requirement as to
eradicate its impact or otherwise “eliminate the taint from a
law that was originally enacted with discriminatory intent.”
Johnson v. Governor of Fla., 405 F.3d 1214, 1223 (11th Cir.
2005) (en banc).
74
For example, the record shows that under the reasonable
impediment exception, if an in-person voter cannot present a
qualifying form of photo ID -- which “African Americans are more
likely to lack” -- the voter must undertake a multi-step
process. N.C. State Conf., 2016 WL 1650774, at *37. First, the
voter must complete and sign a form declaring that a reasonable
impediment prevented her from obtaining such a photo ID, and
identifying that impediment. 14 N.C. Gen. Stat. § 163-166.15. In
addition, the voter must present one of several alternative
types of identification required by the exception. Id. § 163-
166.15(c). Then, the voter may fill out a provisional ballot,
which is subject to challenge by any registered voter in the
county. Id. § 163-182.1B. On its face, this amendment does not
fully eliminate the burden imposed by the photo ID requirement.
Rather, it requires voters to take affirmative steps to justify
to the state why they failed to comply with a provision that we
have declared was enacted with racially discriminatory intent
and is unconstitutional.
In sum, the State did not carry its burden at trial to
prove that the reasonable impediment exception amendment
14 While declaring that a reasonable impediment
“prevent[ed]” her from obtaining an acceptable photo ID, the
voter must heed the form’s warning that “fraudulently or falsely
completing this form is a Class I felony” under North Carolina
law. J.A. 10368.
75
completely cures the harm in this case, nor could it given the
requirements of the reasonable impediment exception as enacted
by the General Assembly. Accordingly, to fully cure the harm
imposed by the impermissible enactment of SL 2013-381, we
permanently enjoin all of the challenged provisions, including
the photo ID provision.
DIANA GRIBBON MOTZ, Circuit Judge, writing for the court:
C.
As to the other requested relief, we decline to impose any
of the discretionary additional relief available under § 3 of
the Voting Rights Act, including imposing poll observers during
elections and subjecting North Carolina to ongoing preclearance
requirements. See 52 U.S.C. § 10302(a), (c) (formerly 42 U.S.C.
§ 1973a). Such remedies “[are] rarely used” and are not
necessary here in light of our injunction. Conway Sch. Dist. v.
Wilhoit, 854 F. Supp. 1430, 1442 (E.D. Ark. 1994).
To be clear, our injunction does not freeze North Carolina
election law in place as it is today. Neither the Fourteenth
Amendment nor § 2 of the Voting Rights Act binds the State’s
hands in such a way. The North Carolina legislature has
authority under the Constitution to determine the “times,
places, and manner” of its elections. U.S. Const. art. I § 4.
In exercising that power, it cannot be that states must forever
76
tip-toe around certain voting provisions disproportionately used
by minorities. Our holding, and the injunction we issue
pursuant to it, does not require that. If in the future the
General Assembly finds that legitimate justifications counsel
modification of its election laws, then the General Assembly can
certainly so act. Of course, legitimate justifications do not
include a desire to suppress African American voting strength.
***
It is beyond dispute that “voting is of the most
fundamental significance under our constitutional
structure.” Ill. State Bd. of Elections v. Socialist Workers
Party, 440 U.S. 173, 184 (1979). For “[n]o right is more
precious in a free country than that of having a voice in the
election of those who make the laws under which, as good
citizens, we must live. Other rights, even the most basic, are
illusory if the right to vote is undermined.” Wesberry v.
Sanders, 376 U.S. 1, 17 (1964). We thus take seriously, as the
Constitution demands, any infringement on this right. We cannot
ignore the record evidence that, because of race, the
legislature enacted one of the largest restrictions of the
franchise in modern North Carolina history.
We therefore reverse the judgment of the district court.
We remand the case for entry of an order enjoining the
77
implementation of SL 2013-381’s photo ID requirement and changes
to early voting, same-day registration, out-of-precinct voting,
and preregistration.
REVERSED AND REMANDED
78
DIANA GRIBBON MOTZ, Circuit Judge, dissenting as to Part V.B.:
We have held that in 2013, the General Assembly, acting
with discriminatory intent, enacted a photo ID requirement to
become effective in 2016. But in 2015, before the requirement
ever went into effect, the legislature significantly amended the
law. North Carolina recently held two elections in which the
photo ID requirement, as amended, was in effect. The record,
however, contains no evidence as to how the amended voter ID
requirement affected voting in North Carolina. In view of these
facts and Supreme Court precedent as to the propriety of
injunctive relief, I believe we should act cautiously.
The Supreme Court has explained that “[a]n injunction is a
matter of equitable discretion; it does not follow from success
on the merits as a matter of course.” Winter v. Natural Res.
Defense Council Inc., 555 U.S. 7, 32 (2008); see also Weinberger
v. Romero-Barcelo, 456 U.S. 305 (1982). Given the “inherent
limitation upon federal judicial authority,” a court’s charge is
only to “cure the condition that offends the Constitution.”
Milliken v. Bradley, 433 U.S. 267, 282 (1977) (internal
quotation marks omitted).
If interim events have “cured the condition,” id., and a
defendant carries its “heavy burden” of demonstrating that the
wrong will not be repeated, a court will properly deny an
injunction of the abandoned practice. United States v. W.T.
79
Grant, 345 U.S. 894, 896-97 (1953); see Kohl by Kohl v.
Woodhaven Learning Ctr., 865 F.2d 930, 934 (8th Cir. 1989) (“A
change in circumstances can destroy the need for an
injunction.”). Thus, a defendant’s voluntary cessation of an
unconstitutional practice or amendment of an unconstitutional
law fundamentally bears “on the question of whether a court
should exercise its power to enjoin” the practice or law. City
of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 288-89
(1982).
The remedy for an unconstitutional law must completely cure
the harm wrought by the prior law. But, a superseding statute
can have that effect. See id. And, where a governmental body
has already taken adequate steps to remedy an unconstitutional
law, courts “generally decline to add . . . a judicial remedy to
the heap.” Winzler, 681 F.3d at 1211; cf. A. L. Mechling Barge
Lines, Inc. v. United States, 368 U.S. 324, 331 (1961) (“[S]ound
discretion withholds the remedy where it appears that a
challenged ‘continuing practice’ is, at the moment adjudication
is sought, undergoing significant modification so that its
ultimate form cannot be confidently predicted.”).
In 2015, two years after the enactment of the photo ID
requirement, but prior to its implementation, the General
Assembly added the reasonable impediment exception to the photo
ID requirement. See 2015 N.C. Sess. Laws 103 § 8. The
80
exception provides that a voter without qualifying photo ID may
cast a provisional ballot after declaring under penalty of
perjury that he or she “suffer[s] from a reasonable impediment
that prevents [him] from obtaining acceptable photo
identification.” N.C. State Conf., 2016 WL 1650774, at *36
(internal quotation marks omitted). No party in this case
suggests that the legislature acted with discriminatory intent
when it enacted the reasonable impediment exception.
The majority maintains, however, that the reasonable
impediment exception does not fully remedy the impact of the
photo ID requirement. Perhaps not. But, by its terms, the
exception totally excuses the discriminatory photo ID
requirement. 1 Of course, in practice, it may not do so. But on
this record, I believe we cannot assess whether, or to what
extent, the reasonable impediment exception cures the
unconstitutional 2013 photo ID requirement.
1Recently, a court considering a similar reasonable
impediment exception suggested that the exception could remedy
an otherwise problematic photo ID requirement. See South
Carolina v. United States, 898 F. Supp. 2d 30, 35-38 (D.D.C.
2012). In South Carolina, a three-judge panel precleared a
photo ID requirement with a reasonable impediment exception
after finding that it would not “disproportionately and
materially burden racial minorities” as compared to the then-
existing identification requirement. Id. at 38. Here, North
Carolina’s reasonable impediment exception “is effectively a
codification of th[at] three-judge panel’s holding.” N.C. State
Conf., 2016 WL 1650774, at *12. See also Veasey v. Abbott,
Civil Action No. 2:13-cv-193 (S.D. Tex. July 23, 2016).
81
Because the district court failed to find discriminatory
intent, it did not consider whether any unconstitutional effect
survived the 2015 amendment. Instead, it focused on whether the
law, as amended in 2015, burdened voters enough to sustain
claims under a § 2 results or an Anderson-Burdick analysis. Id.
at *122, *156. Of course, this is not the standard that
controls or the findings that bear on whether a court should
enjoin an unconstitutional racially discriminatory, but
subsequently amended, law. 2
Moreover, additional information now exists that goes
directly to this inquiry. For after trial in this case, the
State implemented the reasonable impediment exception in primary
elections in March and June of 2016. The parties and amici in
this case have urged on us anecdotal extra-record information
concerning the implementation of the exception during the March
election. For example, Amicus supporting the Plaintiffs reports
that, in the March 2016 primary election, poll workers gave
reasonable-impediment voters incorrect ballots and County Boards
2
This contrasts with our ability to assess, without remand,
whether the State demonstrated that SL 2013-381 would have been
enacted without considerations of race. See supra, Part IV.
Although the district court did not shift the burden to the
State under Arlington Heights, it had already made extensive
findings of the relevant foundational facts regarding the
State’s proffered justifications. We lack the equivalent
findings regarding what discriminatory impact less than a
“material burden” may survive the reasonable impediment
exception.
82
of Elections were inconsistent about what they deemed a
“reasonable” impediment. See Br. of Amicus Curiae Democracy
North Carolina in Support of Appellants at 8-32, N.C. State
Conf., ___ F.3d ___ (4th Cir. 2016) (No. 16-1468). In response,
the State maintains that “the vast majority” of these criticisms
“are inaccurate or misleading,” in part because Amicus completed
its report before the State conducted its final vote count.
Appellee’s Resp. in Opp’n. to Mot. for Stay of J. and Inj.
Pending Appeal at 3-5, N.C. State Conf., ___ F.3d ___ (4th Cir.
2016) (No. 16-1468). Of course, these submissions as to the
March election do not constitute evidence and we cannot consider
them as such. Witters v. Washington Dep’t of Servs. for the
Blind, 474 U.S. 481, 488 n.3 (1986). And for the June election,
we do not even have anecdotal information.
Thus, we are faced with a statute enacted with racially
discriminatory intent, amended before ever implemented in a way
that may remedy that harm, and a record incomplete in more than
one respect. Given these facts, I would only temporarily enjoin
the photo ID requirement and remand the case to the district
court to determine if, in practice, the exception fully remedies
the discriminatory requirement or if a permanent injunction is
necessary. In my view, this approach is that most faithful to
Supreme Court teaching as to injunctive relief.
83