While concerned about intimidation, court permits expansion of voter challengers, reduction of early voting in 2014 election; But also offers important interpretation of Voting Rights Act provision
UPDATE: North Carolina requests stay at U.S. Supreme Court...
By Ernest A. Canning on 10/2/2014, 10:22am PT  

A bit of encouraging voting news came out of North Carolina on Wednesday, believe it or not. We'll see how long it lasts.

By way of a 2-1 decision and a lengthy Opinion [PDF] on Wednesday, a three-judge panel on the U.S. 4th Circuit Court of Appeal ordered U.S. District Court Judge Thomas J. Schroeder, a George W. Bush appointee, to issue a preliminary injunction to prevent the State of North Carolina from implementing two provisions of a sweeping election "reform" bill.

The court sharply criticized the lower court's ruling that previously allowed the law to move forward as is, despite the likelihood of a disproportionate effect on minority voters in the Tar Heel State.

The BRAD BLOG described the bill in question, when it was passed by the GOP legislature last year, as "the nation's worst voter suppression law since the Jim Crow era." The law includes virtually every restriction on voting --- shortening early voting hours, ending same-day registration, implementation of disenfranchising polling place Photo ID restrictions and much more --- ever attempted by Republicans across the country over the past decade. The legislation was, quite literally, rammed through the state's Republican-controlled legislature, with no period for public comment or debate, just one day after a sharply-divided U.S. Supreme Court gutted the heart of the Voting Rights Act in the Summer of 2013.

The majority opinion at the 4th Circuit was highly critical of Schroeder's analysis in the case. They described it as "flawed," containing "grave errors" and "plainly wrong" on the law. The court found that the District Court judge abused his discretion in refusing to issue a preliminary injunction that would prevent implementation of two provisions of the state's H.B. 589.

In their decision, the three-judge panel's majority also offered significant interpretations of Section 2 of the Voting Rights Act (VRA), that, if ultimately upheld, could minimize the damage wrought by the gutting of Section 5 by the U.S. Supreme Court last year...

Some provisions blocked, other remain in effect

"At the end of the day, we cannot escape the district court's repeated findings that plaintiffs presented undisputed evidence showing that same-day registration and out-of-precinct voting were enacted to increase voter participation, that African-American voters disproportionately used those electoral mechanisms and that House Bill 589 restricted those mechanisms and thus disproportionately impacts African-American voters," Judge James A. Wynn Jr., a Barack Obama appointee, wrote on behalf of the majority. He was joined by Judge Henry F. Floyd an Obama appointee to the 4th Circuit, who had initially been appointed to the U.S. District Court by George W. Bush. Judge Diana Gribbon Motz, a Clinton appointee, dissented.

The court ordered the District Court judge to issue preliminary injunctions barring enforcement of a provision in the new law that eliminated NC's progressive and successful same-day registration and voting rules, and another provision which prevents the counting of provisional votes cast by voters in the wrong precinct. Judge Schroeder had previously denied the preliminary injunction sought by plaintiffs in the lower court, even though he expressly found that those two provisions would create a disparate and adverse impact upon the right of African Americans to vote and to have their votes counted.

While conceding that the plaintiffs may ultimately prevail on the remaining contested provisions of H.B. 589 after the full trial scheduled for next year, the court found that plaintiffs had not satisfied all of the legal requirements that would justify enjoining those provisions in advance of the 2014 election.

As described by the 4th Circuit majority opinion, in order to obtain a preliminary injunction:

Plaintiffs must demonstrate that (1) they are likely to succeed on the merits; (2) they will likely suffer irreparable harm absent an injunction; (3) the balance of hardships weighs in their favor; and (4) the injunction is in the public interest.

While the law's strict Photo ID restrictions may eventually be found to violate both Section 2 of the VRA and the Equal Protection Clause of the U.S. Constitution's 14th Amendment, the majority found that plaintiffs will not be irreparably harmed if those provisions are not enjoined prior to the 2014 election, because that part of the law is not set to become effective until the 2016 election. Likewise, there is no irreparable harm in preventing pre-registration to 16 and 17-year old students, the court determined, since the right to vote is only available to those who are at least 18-years of age on Election Day.

Although the statute prevents local election boards from using their discretion to keep the polls open an additional hour, when needed, the majority concluded there was no irreparable harm since election boards "retain the ability to make up significant losses of time by ordering the polls to remain open on the event of a delay."

The court's refusal to block a reduction in the number of days for early voting is somewhat troubling, as the reason given by the majority did not exist at the time Judge Schroeder initially failed to order a preliminary injunction. Specifically, the majority ruled that preventing the reduction of early voting at this late date would impose an "undue burden on the state because it would have to begin in approximately two weeks."

The majority's reason for refusing to block an increase in the number of precinct "challengers," however, is a bit disconcerting:

[W]e agree with the district court that "African-American voters in North Carolina and elsewhere have good reason to be concerned about intimidation and other threats to their voting rights"...The district court found that "Plaintiffs have provided no basis to suggest that poll observers or any challenger(s) will abuse their statutory power." Although we are skeptical as to the ultimate accuracy of this prediction, we cannot say that the district court committed clear error."

While it was not part of the record in the North Carolina case, the prospect of armed supporters of Wisconsin Republican Gov. Scott Walker threatening to follow Democratic voters home underscores a potential grave risk to voters and to the integrity of the vote.

Important Section 2 Analysis

In finding that the plaintiffs were likely to ultimately succeed at trial on the merits, with respect to H.B. 589's provisions eliminating same-day registration and the counting of wrong-precinct ballots, the majority provided what may be the first sweeping appellate court analysis of the boundaries for litigation under Section 2 of the VRA since the Supreme Court gutted Section 5 in Shelby County vs. Holder.

Under Section 2 as it exists today, showing intentional discrimination is unnecessary. Instead, a Section 2 violation can "be established by proof of discriminatory results alone." [Citation]. Thus, the "right" Section 2 inquiry "is whether 'as a result of the challenged practice or structure plaintiffs do not have an equal opportunity to participate in the political processes and to elect candidates of their choice.'"

In other words, "a Section 2 violation can 'be established by proof of discriminatory results alone.'" It is not necessary to demonstrate that law makers intended to discriminate when enacting the law.

While Judge Schroeder correctly observed that previous Section 2 cases focused upon "vote dilution," that was so because, during the era of preclearance under Section 5, it was unnecessary to resort to Section 2 for cases like the one now before court in NC. Laws of this sort had been routinely blocked for years, under Section 5, when states failed to show that the law would not have a retrogressive impact upon minority voting rights. But the burden now shifts to the plaintiffs under Section 2 cases, now that Section 5 is unavailable. Vote "denial is simply a more extreme form of the same pernicious violation" that is involved in vote dilution, the 4th Circuit majority determined.

The majority was especially critical of Schroeder's citation to the U.S. Supreme Court's statement in Shelby County which said that "history did not end in 1965" and that "past discrimination cannot, in the manner of original sin, condemn governmental action." That, by no means, suggests that historical discrimination and sociological conditions should not be considered in a present-day Section 2 analysis, the court found.

In the initial complaint, plaintiffs alleged that the "blight" of racial discrimination has remained ever-present in the Tar Heel State over the better part of the past three decades, and even as recently as last year. They wrote [emphasis added]:

Over the past 30 years in North Carolina, there have been 30 successful cases brought under Section 2 of the Voting Rights Act and 40 objections to discriminatory changes to voting laws lodged by the Department of Justice under Section 5...Based on concerns about intimidation at the polling place, the United States Department of Justice sent federal observers to North Carolina to help enforce federal voting rights laws that protect ballot access in the November 2012 general election.

Just as had been the case under Section 5, Section 2 applies to election laws that have a retrogressive effect on minority voting rights. "What matters for purposes of Section 2 is not how many minority voters are being denied equal electoral opportunities but simply that 'any' minority voter is being denied equal electoral opportunities."

The court's findings here in regard to Section 2, could also have an impact on other Section 2 challenges currently pending in state's like Texas and Wisconsin, where a recent partisan ruling by the 7th Circuit seems to have simply ignored key provisions of the Voting Rights Act.

All three federal challenges, in Wisconsin, Texas and North Carolina, may well end up before the Supreme Court, eventually. A key question now is "how soon"?

For the moment, as of late Wednesday night, the state of North Carolina has appealed the three-judge panel's decision for a full hearing before the full 4th Circuit. So the positive result on Wednesday, like an earlier one at the 6th Circuit concerning Ohio Republicans' attempt to limit early voting, could be overturned by either the full Appellate Court, or even the U.S. Supremes.

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UPDATE 10/3/14: On Oct. 2, 2014 the 4th Circuit issued an Order [PDF] in which, by the same 2-1 margin, the court denied the state's motion to stay its decision to restore same day voter registration and the counting of out-of-precinct ballots.

At his Election Law Blog, U.C. Irvine Law Professor Rick Hasen reported that North Carolina filed a "32-page petition," seeking a stay from the U.S. Supreme Court. (Hasen erroneously reports that Chief Justice John Roberts "ordered a response by September 5." Obviously, the correct date for the response is October 5.)

Hasen, who, in an article published by the Harvard Law Review Forum, argues that the entire NC statute should ultimately be struck down as unconstitutional, finds it likely that the Court may issue a stay based primarily upon the argument that the eleventh-hour 4th Circuit decision will create electoral chaos. That is the same issue that has been advanced by the ACLU at the Supreme Court, in their Wisconsin Photo ID voting case appeal.

Hasen's predicts a likelihood that the Supreme Court will grant stays in both cases, resulting in voting rights being protected, for now, in WI, but taken away, once again, in the NC case. That is a far cry from an argument that a stay should be issued in both cases. In the WI case, a stay is needed to prevent 10% of the Badger State electorate from being disenfranchised. NC's inconvenience in having to afford same-day registration, just as they have for years, appears to be altogether outweighed by the acknowledged disparate impact the provision would have on the African American vote --- a disparate impact that cannot be remedied by a favorable ruling on the merits when the case is finally heard in full after the election. Any voting rights lost in 2014 would be irreparable. Also, since NC counted out-of-precinct provisional ballots in its past elections, it is more than a stretch to suggest that the continuance of that procedure for out-of-precinct ballots that have not yet been cast could somehow produce electoral chaos.

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UPDATE 10/9/2014: U.S. Supreme Court overturns 4th Circuit ruling, restores GOP voter suppression law in full, pending trial on merits next year. Full details now here...

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Ernest A. Canning has been an active member of the California state bar since 1977. Mr. Canning has received both undergraduate and graduate degrees in political science as well as a juris doctor. He is also a Vietnam vet (4th Infantry, Central Highlands 1968). Follow him on Twitter: @Cann4ing.

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