By Nate Cook

Elon University School of Law May ’17[1]

Edited by Anthony Rascati, Elon University School of Law Dec. ’17 and Mike Casterlow, Elon University School of Law Dec. ’17

North Carolina State Conference of NAACP v. McCrory, 831 F.3d 204 (4th Cir. 2016).

On July 29, 2016, the 4th Circuit struck down North Carolina’s Voter ID law, finding that the law at issue “target[ed] African Americans with almost surgical precision.”[2] This decision had an immediate impact, as it changed the rules for voting in the 2016 election. While elimination of the photo ID requirement was the most covered and discussed provision struck down by the court, other important provisions were changed by the court’s decision, such as the days allowed for early voting, the use of same-day registration, out-of-precinct provisional voting, and preregistration of 16- and 17-year-olds. To fully understand the gravity of this case, one must look first to the Voting Rights Act of 1965 that was passed to prohibit racial discrimination at the ballot box. Furthermore, it is important to understand the effect of the Supreme Court’s decision in the Shelby County[3] case, and how that case has since changed the political landscape for election legislation across the country. As is frequently now the case, North Carolina’s political climate is a microcosm of American politics, where partisanship plays an ever-increasing role. Republican-controlled legislatures across the country have made many recent attempts to change voting and election procedures in the wake of Shelby County, and North Carolina led the march. The 4th Circuit’s decision in this case illustrates how courts may interpret voting rights cases post-Shelby County, and provides insight that is very valuable for anyone interested in American election law and voting rights.

SL 2013–381, the law at question in this case, was originally filed in the House as HB 589. Initially, the bill only sought to create photo ID provisions for voting. However, while the bill sat in the Senate Rules Committee, the Supreme Court issued its opinion in Shelby County v. Holder. The Court in Shelby County struck down the preclearance coverage formula in § 4(b) of the Voting Rights Act because the Court found the formula to be based on outdated data. Without the formula, the preclearance requirements of § 5 of the Voting Rights Act no longer apply to any jurisdiction in the United States. North Carolina was subject to § 5 prior to the Shelby County decision. After Shelby County, the General Assembly requested data on voting methods and photo ID’s by race. The General Assembly then changed the bill by adding provisions that “restricted voting and registration in five different ways, all of which disproportionately affected African Americans.”[4] Those challenged provisions include the following: the requirement of a photo ID with restrictions as to which type of ID could be used; the reduction of in-person early voting from seventeen days to ten days; the elimination of same-day registration; the elimination of out-of-precinct provisional voting; and the elimination of preregistration of 16- and 17-year-olds.

Various voting rights groups and individual plaintiffs brought suit on Aug. 12, 2013, the day the law was signed by Gov. McCrory. The suits were consolidated, and Plaintiffs argued the law was unconstitutional under § 2 of the Voting Rights Act, the 14th Amendment, the 15th Amendment, and the 26th Amendment. Just prior to trial, the General Assembly passed a reasonable impediment exception to the photo ID requirement, signed into law as SL 2015-105. Due to the change, the district court bifurcated its trial. The district court conducted its trial of all provisions, except the photo ID provision, in July 2015 and conducted its trial of the modified photo ID requirement in January 2016. The district court upheld the law, finding “no discriminatory results under § 2, no discriminatory intent under § 2 or the 14th and 15th Amendments, no undue burden on the right to vote generally under the 14th Amendment, and no violation of the 26th Amendment.”[5]

On appeal, the 4th Circuit Court of Appeals limited its analysis to the effect of the law on African American voters and held that the challenged provisions “were enacted with racially discriminatory intent in violation of the Equal Protection Clause of the 14th Amendment and § 2 of the Voting Rights Act.”[6] The court did not address any other claims. In some of its more powerful prose, the court wrote:

In holding that the legislature did not enact the challenged provisions with discriminatory intent, the [district] court seems to have missed the forest in carefully surveying the many trees. This failure of perspective led the [district] court to ignore critical facts bearing on legislative intent, including the inextricable link between race and politics in North Carolina.[7]

The court provides a clean and thorough framework for how to analyze facially neutral laws to determine if they are “motivated by invidious racial discrimination.”[8] Applying the Supreme Court’s standard in Village of Arlington Heights v. Metropolitan Housing Development Corp. 429 U.S. 252, 97 S. Ct. 555, 50 L. Ed. 2d 450 (1977), the court makes “a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.”[9] “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.’”[10]

The court used the non-exhaustive list of factors from Arlington Heights to assess whether or not the General Assembly passed SL 2013-381 with a racially discriminatory purpose:

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.”[11]

Specific to claims of discriminatory intent under § 2 of the Voting Rights Act, the court also indicated that the existence of racially polarized voting is also “one of the critical background facts of which a court must take notice.”[12]

Arlington Heights Factors

The Historical Background of the Decision

When assessing discriminatory intent, the district court found “that there [was] little evidence of official discrimination since the 1980s” in North Carolina elections.[13] The 4th Circuit found this to be clearly erroneous, and provided examples that showed “[t]he 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.”[14] That record included evidence that “the Department of Justice issued over fifty objection letters to proposed election law changes in North Carolina—including several since 2000—because the State had failed to prove the proposed changes would have no discriminatory purpose or effect.”[15] Also during that time frame, “private plaintiffs brought fifty-five successful cases under § 2 of the Voting Rights Act.”[16] The court criticized the district court for failing to make the connection that “that state officials continued in their efforts to restrict or dilute African American voting strength well after 1980 and up to the present day.”[17] The court called this “perhaps the most critical . . . piece of historical evidence here.”[18]

Sequence of Events Leading to the Challenged Decision

Here, the 4th Circuit stated that “a court must consider ‘[d]epartures from the normal procedural sequence,’ which may demonstrate ‘that improper purposes are playing a role.’”[19] The court held that the district court erred by not making the inference that the sequence of events by the North Carolina General Assembly shows signs of discriminatory intent. The court detailed how the proposed bill changed after the Shelby County decision. For instance, before Shelby County, SL 2013-381 was only sixteen pages long and contained none of the challenged provisions, although it did contain a less restrictive photo ID requirement. The bill had more than three weeks of debate in public hearings, and nearly another three weeks of debate in the House, as well as some bipartisan support. The bill was sent to the Senate Rules Committee, where it sat for two months. “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.”[20]

The revised version of the bill also moved through the General Assembly in just three days, with only “one day for a public hearing, two days in the Senate, and two hours in the House.”[21] The bill lost its prior Democratic support, and the House was not allowed an opportunity to offer amendments. While the General Assembly did not break its procedural rules, a point that satisfied the district court’s decision, the court here noted that “a legislature need not break its own rules to engage in unusual practices.”[22] The court noted that the debate, which occurred prior to the Shelby County decision, was not probative since that debate did not include the provisions added to the bill. The court noted that “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.”[23] The court ultimately found that the sequence of events by the General Assembly cut in favor of a finding of discriminatory intent.

The Legislative History of the Decision

The court also noted that it did not have access to minutes of legislative meetings about SL 2013-381, as they are protected by legislative privilege. The 4th Circuit, like the district court, did not place significant weight on statements made by individual legislators during and after passage of the bill. However, the 4th Circuit did find significant “the General Assembly’s requests for and use of race data in connection with SL 2013-381.”[24]  “This data revealed that African Americans disproportionately used early voting, same-day registration, and out-of-precinct voting, and disproportionately lacked DMV-issued ID.”[25] Additionally, there was data “that African Americans did not disproportionately use absentee voting; whites did.”[26] The General Assembly did not alter any provisions affecting absentee voting. The court concluded that the General Assembly relied on racial data and only restricted voting practices that were disproportionately used by African Americans.

Impact of the Official Action: Whether It Bears More Heavily on One Race than Another

The record showed that African Americans disproportionately used the voting mechanisms removed by the law and also “disproportionately lacked the photo ID required by SL 2013-381.”[27] The court held that this information alone established a disproportionate factor under the Arlington Heights analysis, and the district court “clearly erred in finding that the cumulative impact of the challenged provisions of SL 2013–381 does not bear more heavily on African Americans.”[28]

Arlington Heights Factors Summary

Aggregating its analysis of the Arlington Heights factors, the court found 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.”[29] The court emphasized the importance of viewing the evidence by the totality of the circumstances.

Since race was found to be a motivating factor for passing SL 2013-381, the burden shifts, and “[the] court must carefully scrutinize a state’s non-racial motivations to determine whether they alone can explain enactment of the challenged law.”[30] The court found “[t]he record evidence plainly establishes race as a ‘but-for’ cause of SL 2013-381.”[31] The General Assembly argued that its various voting provisions in SL 2013-381 were created to combat voter fraud, promote public confidence in the electoral system, correct inconsistencies in the availability of early voting, avoid administrative burdens during the end of the early voting and avoid confusion. All in all, the General Assembly argued, it wanted to reset the law back to its original form.

The court thoroughly analyzed the specific justifications for each provision, and contrasted them with the evidence provided in the extensive record. For each provision, the court found that the General Assembly’s provisions “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 African American voters.”[32]

Conclusion

The Court broke from its full majority in Part V. B. regarding remedies. Circuit Judge Wynn, with whom Circuit Judge Floyd joined, wrote that because of the discriminatory intent of SL 2013-381’s provisions, the only acceptable remedy is invalidation. Specifically, the General Assembly’s eleventh-hour reasonable impediment exception to the photo ID requirement (passed just weeks before the district court trial in 2015) does not do enough to completely remedy the harm of disenfranchisement of African Americans. Circuit Judge Motz dissented to invalidating the reasonable impediment exception, arguing that there was not enough evidence in the record to assess whether the “reasonable impediment exception cures the unconstitutional 2013 photo ID requirement.”[33]

 

Ultimately, the five provisions at issue in SL 2013-381 (photo ID requirement, changes to early voting, same-day registration, out-of-precinct voting, and preregistration) were all found to be unconstitutional, and the district court’s judgment was reversed and remanded.

[1] The author interned for the Southern Coalition for Social Justice while the organization represented the League of Women Voters Plaintiffs during the July 2015 district court trial.

[2] North Carolina State Conference of NAACP v. McCrory, 831 F.3d 204, 214 (4th Cir. 2016).

[3] Shelby Cty., Ala. V. Holder, 133 S. Ct. 2612, 186 L. Ed. 2d 651 (2013).

[4] 831 F.3d 204 at 214.

[5] Id. at 219.

[6] Id.

[7] Id. at 214.

[8] Id. at 220.

[9] Id. at 220 (quoting Arlington Heights, 429 U.S. at 266, 97 S. Ct. 555).

[10] Id. at 220 (emphasis in original).

[11] Id. at 220-21 (quoting Arlington Heights, 429 U.S. at 266-67, 97 S. Ct. 555) (alterations in original).

[12] Id. at 221.

[13] Id. at 223 (quoting N.C. State. Conf. of the NAACP v. McCrory, __ F. Supp. 3d __, __, 2016 WL 1650774, at *143 (M.D.N.C. Apr. 25, 2016))

[14] Id. at 223.

[15] Id. at 224.

[16] Id.

[17] Id. at 225.

[18] Id.

[19] Id. at 227 (quoting Arlington Heights, 429 U.S. at 267, 97 S. Ct. 555).

[20] Id.

[21] Id. at 228 (emphasis in original).

[22] Id.

[23] Id. at 229.

[24] Id. at 230.

[25] Id.

[26] Id. (emphasis in original).

[27] Id. at 231.

[28] Id.

[29] Id. at 233.

[30] Id.

[31] Id. at 235.

[32] Id. at 238.

[33] Id. at 243.