Fourth Circuit Restores Early Voting and Out of Precinct Voting in North Carolina

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In a 2-1 decision, the Federal Appeals Court for the Fourth Circuit granted a temporary injunction to restore same day registration and out of precinct voting in North Carolina. It did not strike down the restrictions on early voting because under North Carolina’s earlier rules early voting would have to start in 2 weeks. The court recognized that reduced early voting is part of the total effort to suppress votes in North Carolina. However, they couldn’t reverse that portion of the law because there is not enough time for state officials to get ready.

The court considered local factors, history and undisputed evidence that changes to same day registration and provisional ballots disproportionately disenfranchise minority voters and concluded these measures likely violated Section 2 of the Voting Rights Act. The court said the lower court got the law wrong and abused its discretion when it failed to reach that conclusion. Writing for the majority,

“In refusing to consider the elimination of voting mechanisms successful in fostering minority participation, the district court misapprehended and misapplied Section 2 (of the Voting Rights Act), ”By inspecting the different parts of House Bill 589 as if they existed in a vacuum, the district court failed to consider the sum of those parts and their cumulative effect on minority access to the ballot box.”

The majority also noted the role of the Supreme Court’s ruling in Shelby v. Holder, which gutted Section 5 of the Voting Rights Act in the passage of this law. Those words bear repeating.

Immediately after Shelby County, i.e., literally the next day, when “history” without the Voting Rights Act’s preclearance requirements picked up where it left off in 1965, North Carolina rushed to pass House Bill 589, the “full bill” legislative leadership likely knew it could not have gotten past federal preclearance in the pre-Shelby County era. McCrory, 997 F. Supp. 2d at 336. Thus, to whatever extent the Supreme Court could rightly celebrate voting rights progress in Shelby County, the post-Shelby County facts on the ground in North Carolina should have cautioned the district court against doing so here.

It is heartening to see there are judges who understand the purpose of this law, given the combination of restrictive provisions within it, along with the fact that it was passed so quickly after the Supreme Court gutted Section 5 of the Voting Rights Act.

Judge Diana Gribbon Motz, offered two reasons for her dissent. First she said, the trial court’s decision that the law’s cumulative effect would not hurt minorities was not “clearly erroneous.” However, she did acknowledge that George W. Bush appointee, Judge Thomas Schroeder should have looked at the laws cumulatively instead of piece by piece.

The judge said she might have reached a different decision in reviewing the record, and that the judge should have looked at the totality of North Carolina’s election laws and their cumulative effect on voting rights instead of interpreting the law in a vacuum.

Her second reason is more important from a legal perspective. She said the 4th circuit should not be changing the rules this close to an election because state officials will be ill equipped to implement changes in the status quo this close to the election.

While this is very good news, if NC goes to the Supreme Court, it is likely to reverse this decision by the same 5-4 breakdown we saw earlier this week in the Ohio case.

As noted by Rick Hasen earlier on Wednesday,

I would not be surprised to see the Supreme Court reverse this 4th Circuit panel decision on the same 5-4 conservative/liberal lines that we saw earlier this week in the Ohio voting case. That would not necessarily mean that the Court would reject the broad reading of section 2 of the Voting Rights Act offered today by the 4th Circuit. The split could be over the issue, also present in the 7th Circuit Wisconsin voter id case (which could head to the Supreme Court today) about the dangers of courts changing election rules just before the election.

In fact, the Charlotte Post reports North Carolina plans to appeal to the Supreme Court on Thursday.