Louis Duke v. State of North Carolina

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 1:13-cv-00660-TDS-JEP,1:13-cv-00658-TDS-JEP,1:13-cv-00861-TDS-JEP. [999447105]. [14-1845, 14-1856, 14-1859]

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-1845

LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA; A. PHILIP
RANDOLPH INSTITUTE; UNIFOUR ONESTOP COLLABORATIVE; COMMON
CAUSE NORTH CAROLINA; GOLDIE WELLS; KAY BRANDON; OCTAVIA
RAINEY; SARA STOHLER; HUGH STOHLER,
Plaintiffs,
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 – Appellants,
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.
------------------------------------UNITED STATES OF AMERICA,
Amicus Curiae,

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BRENNAN CENTER FOR JUSTICE AT NYU SCHOOL OF LAW,
Amicus Supporting Appellants,
JUDICIAL WATCH, INCORPORATED; ALLIED EDUCATIONAL FOUNDATION;
CHRISTINA KELLEY GALLEGOS-MERRILL,
Amici Supporting Appellees.

No. 14-1856

NORTH CAROLINA STATE CONFERENCE OF BRANCHES OF THE NAACP;
ROSANELL EATON; EMMANUEL BAPTIST CHURCH; BETHEL A. BAPTIST
CHURCH; COVENANT PRESBYTERIAN CHURCH; CLINTON TABERNACLE AME
ZION CHURCH; BARBEE'S CHAPEL MISSIONARY BAPTIST CHURCH,
INC.; ARMENTA EATON; CAROLYN COLEMAN; JOCELYN FERGUSONKELLY; FAITH JACKSON; MARY PERRY; MARIA TERESA UNGER PALMER,
Plaintiffs – Appellants,
and
NEW OXLEY HILL BAPTIST CHURCH; BAHEEYAH MADANY; JOHN DOE 1;
JANE DOE 1; JOHN DOE 2; JANE DOE 2; JOHN DOE 3; JANE DOE 3,
Plaintiffs,
v.
PATRICK L. MCCRORY, in his official capacity as Governor of
the 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,
Defendants – Appellees.

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-----------------------------------UNITED STATES OF AMERICA,
Amicus Curiae,
BRENNAN CENTER FOR JUSTICE AT NYU SCHOOL OF LAW,
Amicus Supporting Appellants,
JUDICIAL WATCH, INCORPORATED; ALLIED EDUCATIONAL FOUNDATION;
CHRISTINA KELLEY GALLEGOS-MERRILL,
Amici Supporting Appellees.

No. 14-1859

LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA; A. PHILIP RANDOLPH
INSTITUTE; UNIFOUR ONESTOP COLLABORATIVE; COMMON CAUSE NORTH
CAROLINA; GOLDIE WELLS; OCTAVIA RAINEY; HUGH STOHLER; KAY
BRANDON; SARA STOHLER,
Plaintiffs – Appellants,
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.

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MCCRORY, in his official capacity as Governor of the state
of North Carolina,
Defendants – Appellees.
−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−------UNITED STATES OF AMERICA,
Amicus Curiae,
BRENNAN CENTER FOR JUSTICE AT NYU SCHOOL OF LAW,
Amicus Supporting Appellants,
JUDICIAL WATCH, INCORPORATED; ALLIED EDUCATIONAL FOUNDATION;
CHRISTINA KELLEY GALLEGOS-MERRILL,
Amici Supporting Appellees.

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-00861-TDS-JEP;
1:13-cv-00660-TDS-JEP)

Argued:

September 25, 2014

Decided: October 1, 2014

Before MOTZ, WYNN, and FLOYD, Circuit Judges.

Reversed in
part,
affirmed
in
part,
and
remanded
with
instructions by published opinion.
Judge Wynn wrote the
majority opinion, in which Judge Floyd joined. Judge Motz wrote
a dissenting opinion.

ARGUED:
Allison Jean Riggs, SOUTHERN COALITION FOR SOCIAL
JUSTICE, Durham, North Carolina; Penda Denise Hair, ADVANCEMENT
PROJECT, Washington, D.C.; Marc Erik Elias, PERKINS COIE LLP,
Washington, D.C., for Appellants.
Alexander McClure Peters,
NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina;
Thomas A. Farr, OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C.,
Raleigh, North Carolina, for Appellees.
Holly Aiyisha Thomas,
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UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Amicus United States of America.
ON BRIEF: Anita S. Earls,
George E. Eppsteiner, SOUTHERN COALITION FOR SOCIAL JUSTICE,
Durham, North Carolina; Dale Ho, Julie A. Ebenstein, Sean Young,
New York, New York, Laughlin McDonald, ACLU VOTING RIGHTS
PROJECT, Atlanta, Georgia; Christopher Brook, ACLU OF NORTH
CAROLINA
LEGAL
FOUNDATION,
Raleigh,
North
Carolina,
for
Appellant League of Women Voters of North Carolina.
Elisabeth
C. Frost, Washington, D.C., Joshua L. Kaul, PERKINS COIE LLP,
Madison, Wisconsin; Edwin M. Speas, Jr., John W. O’Hale,
Caroline P. Mackie, POYNER SPRUILL LLP, Raleigh, North Carolina,
for Appellant Louis M. Duke. Edward A. Hailes, Jr., 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, Susan M. Davies, Bridget K.
O’Connor, K. Winn Allen, Kim Knudson, Jodi Wu, KIRKLAND & ELLIS
LLP, Washington, D.C., for Appellant North Carolina State
Conference of Branches of the NAACP. Robert C. Stephens, OFFICE
OF THE GOVERNOR OF NORTH CAROLINA, Raleigh, North Carolina; Karl
S. Bowers, Jr., BOWERS LAW OFFICE LLC, Columbia, South Carolina,
for Appellee Governor Patrick L. McCrory. Katherine A. Murphy,
NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina;
Phillip J. Strach, Michael D. McKnight, OGLETREE, DEAKINS, NASH,
SMOAK & STEWART, P.C., Raleigh, North Carolina, for Appellees
State of North Carolina and North Carolina State Board of
Election.
Molly J. Moran, Acting Assistant Attorney General,
Diana K. Flynn, Civil Rights Division, UNITED STATES DEPARTMENT
OF JUSTICE, Washington, D.C.; Ripley Rand, United States
Attorney, Greensboro, North Carolina, Gill P. Beck, Special
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Asheville, North Carolina, for Amicus United States of
America.
Samuel
Brooke,
SOUTHERN
POVERTY
LAW
CENTER,
Montgomery, Alabama; Michael C. Li, Jennifer L. Clark, Tomas
Lopez, THE BRENNAN CENTER FOR JUSTICE AT N.Y.U. SCHOOL OF LAW,
New York, New York, for Amicus The Brennan Center for Justice at
N.Y.U School of Law.
Chris Fedeli, JUDICIAL WATCH, INC.,
Washington, D.C.; H. Christopher Coates, LAW OFFICE OF H.
CHRISTOPHER COATES, Charleston, South Carolina; Bradley J.
Schlozman, HINKLE LAW FIRM LLC, Wichita, Kansas; Gene B.
Johnson, JOHNSON LAW FIRM, P.A., Arden, North Carolina, for
Amici
Judicial
Watch,
Incorporated,
Allied
Educational
Foundation, and Christina Kelley Gallegos-Merrill.

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WYNN, Circuit Judge:
The

right

to

vote

is

fundamental.

“No

right

is

more

precious in a free country than that of having a voice in the
election

of

those

who

make

citizens, we must live.
illusory

if

the

right

the

laws

under

which,

as

good

Other rights, even the most basic, are
to

vote

Sanders, 376 U.S. 1, 17 (1964).

is

undermined.”

Wesberry

v.

And a tight timeframe before an

election does not diminish that right.
“In decision after decision, [the Supreme] Court has made
clear that a citizen has a constitutionally protected right to
participate in elections on an equal basis with other citizens
in the jurisdiction.”
(1972).

Dunn v. Blumstein, 405 U.S. 330, 336

Congress sought to further ensure equal access to the

ballot box by passing the Voting Rights Act, which was aimed at
preventing “an inequality in the opportunities enjoyed by black
and

white

voters

to

elect

their

preferred

representatives.”

Thornburg v. Gingles, 478 U.S. 30, 47 (1986).
On June 25, 2013, the Supreme Court lifted certain Voting
Rights Act restrictions that had long prevented jurisdictions
like North Carolina from passing laws that would deny minorities
equal access.

See Shelby Cnty., Ala. v. Holder, 133 S. Ct. 2612

(2013).

very

The

next

day,

North

Carolina

began

pursuing

sweeping voting reform—House Bill 589—which is at the heart of
this appeal.
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With House Bill 589, North Carolina imposed strict voter
identification requirements, cut a week off of early voting,
prohibited local election boards from keeping the polls open on
the final Saturday afternoon before elections, eliminated sameday voter registration, opened up precincts to “challengers,”
eliminated pre-registration of sixteen- and seventeen-year-olds
in high schools, and barred votes cast in the wrong precinct
from being counted at all.
In

response,

various

Plaintiffs

and

the

United

States

Government sued North Carolina, alleging that House Bill 589
violates

equal

Constitution

as

protection
well

as

provisions

the

Voting

of

the

Rights

United

Act.

States

Plaintiffs

sought to prevent House Bill 589 from taking effect by asking
the

district

court

for

a

preliminary

injunction.

Such

an

injunction would maintain the status quo to prevent irreparable
harm while the lawsuit plays itself out in the courts.
But the district court refused.
court

laid

out

what

it

believed

In so doing, the district
to

be

the

applicable

law.

Notably, however, the district court got the law plainly wrong
in

several

crucial

respects.

When

the

applicable

law

is

properly understood and applied to the facts as the district
court portrayed them, it becomes clear that the district court
abused

its

discretion

in

denying

Plaintiffs

a

preliminary

injunction and not preventing certain provisions of House Bill
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589 from taking effect while the parties fight over the bill’s
legality.

Accordingly, we reverse the district court’s denial

of the preliminary injunction as to House Bill 589’s elimination
of

same-day

registration

and

prohibition

on

counting

out-of-

precinct ballots.
However,

we

affirm

the

district

court’s

denial

of

Plaintiffs’ request for a preliminary injunction with respect to
the following House Bill 589 provisions: (i) the reduction of
early-voting

days;

(ii)

the

expansion

of

allowable

voter

challengers; (iii) the elimination of the discretion of county
boards of elections to keep the polls open an additional hour on
Election

Day

in

“extraordinary

circumstances”;

(iv)

the

elimination of pre-registration of sixteen- and seventeen-yearolds who will not be eighteen years old by the next general
election;

and

(v)

the

soft

roll-out

of

requirements to go into effect in 2016.

voter

identification

With respect to these

provisions, we conclude that, although Plaintiffs may ultimately
succeed at trial, they have not met their burden of satisfying
all

elements

necessary

for

a

preliminary

injunction.

We

therefore affirm in part, reverse in part, and remand to the
district court with specific instructions to enter, as soon as

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possible, an order granting a preliminary injunction enjoining
enforcement of certain provisions of House Bill 589. 1

I.

Background 2

In spring 2013, the North Carolina General Assembly began
working on a voter identification law.

The House Committee on

Elections, chaired by Representative David R. Lewis, held public
hearings,

and

an

initial

version

introduced in the House on April 4.

of

House

Bill

589

was

In April, House Bill 589

was debated, amended, and advanced; it ultimately passed the
House essentially along party lines, with no support from any
African American representatives.
In March 2013, before the bill was introduced to the house,
the various sponsors of House Bill 589 sent an e-mail to the
1

While the separate opinion is styled as a dissent, it
concurs with the majority opinion in affirming the district
court’s decision to deny an injunction as to multiple House Bill
589 provisions. We agree with a number of the concerns the
separate opinion raises as to all but two of the challenged
provisions—the elimination of same-day registration and out-ofprecinct voting.
2

As an appellate court, we neither re-weigh evidence nor
make factual findings.
And though we may, in this procedural
posture, call out clear error if the district court “ma[de]
findings without properly taking into account substantial
evidence to the contrary[,]” United States v. Caporale, 701 F.3d
128, 140 (4th Cir. 2012), we are taking the facts as they have
been depicted by the district court in North Carolina State
Conference of Branches of the NAACP v. McCrory, 997 F. Supp. 2d
322 (M.D.N.C. 2014).

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State Board of Elections asking for a “cross matching of the
registered

voters

in

[North

Carolina]

with

the

[DMV]

to

determine a list of voters who have neither a [North Carolina]
Driver’s License nor a [North Carolina] Identification Card.”
Id. at 357.
down

into

possible

The legislators also wanted “that subset broken
different

categories

demographics

that

[the

within

each

State

county

Board

of

by

all

Elections]

typically captures (party affiliation, ethnicity, age, gender,
etc.).”

McCrory, 997 F. Supp. 2d at 357.

The State Board of

Elections sent the data in a large spreadsheet the next day.
Later in March 2013, Representative Lewis sent a ten-page
letter to State Board of Elections Director Gary Bartlett asking
about

the

State

Board

of

Elections’

conclusion

that

612,955

registered voters lacked a qualifying photo identification.
asked

the

State

Board

of

Elections

to

“provide

the

age

He
and

racial breakdown for voters who do not have a driver’s license
number listed.”

Id.

In April, Bartlett sent a nineteen-page

response along with a spreadsheet that included the requested
race data.

That same day, Speaker of the House Thom Tillis’s

general counsel e-mailed the State Board of Elections, asking
for

additional

race

data

on

people

who

requested

absentee

ballots in 2012; that data, too, the State Board of Elections
provided.

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In late April 2013, House Bill 589 made its way to the
North Carolina Senate, passed first reading, and was assigned to
the Senate Rules Committee.

That committee took no action on

the bill for three months, until July 23.

“The parties do not

dispute that the Senate believed at this stage that [House Bill]
589 would have to be submitted to the United States Department
of Justice . . . for ‘pre-clearance’ under Section 5 of the
[Voting Rights Act], 42 U.S.C. § 1973c(a), because many North
Carolina

counties

were

‘covered

jurisdictions’

under

that

Section.

However, at that time the United States Supreme Court

was considering a challenge to the . . . ability to enforce
Section 5.”

McCrory, 997 F. Supp. 2d at 336. 3

On June 25, the Supreme Court issued its decision in Shelby
County, declaring the formula used to determine the Section 5
covered

jurisdictions

unconstitutional.

The

very

next

day,

Senator Thomas Apodaca, Chairman of the North Carolina Senate
Rules Committee, publicly stated, “So, now we can go with the
full bill.”

Id. at 336.

The contents of the “full bill” were

not disclosed at the time.
3

Under Section 5’s preclearance requirement, no change in
voting procedures in covered jurisdictions could take effect
until approved by federal authorities.
A jurisdiction could
obtain such preclearance only by proving that the change had
neither “the purpose [nor] the effect of denying or abridging
the right to vote on account of race or color.”
52 U.S.C.
§ 10304(a).

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A meeting of the Rules Committee was subsequently scheduled
for July 23.

The night before the Rules Committee meeting, the

new bill, by then fifty-seven pages in length, was posted for
the members on the Rules Committee website.

Unlike the original

bill, which focused mainly on voter identification, the amended
House Bill 589 expanded the list of restrictive provisions to
include

(1)

elimination

the
of

reduction

same-day

of

early-voting

registration;

(3)

days;

a

(2)

the

prohibition

on

counting out-of-precinct ballots; (4) an expansion of allowable
poll observers and voter challenges; (5) the elimination of the
discretion of county boards of elections to keep the polls open
an

additional

hour

on

Election

Day

in

extraordinary

circumstances; and (6) the elimination of pre-registration of
sixteen- and seventeen-year-olds who will not be eighteen years
old by the next general election.
After

debate

on

July

23,

the

committee and proceeded to the floor.

amended

bill

passed

the

On July 25, the Senate

began its session with the third reading of the substantially
amended House Bill 589.

Proponents and opponents of the bill

debated its provisions and various proposed amendments for four
hours.

“Several

Senators

suppression of minorities.”

characterized

the

bill

as

voter

McCrory, 997 F. Supp. 2d at 337.

Nevertheless, at the close of debate, a party-line vote sent
House Bill 589, as amended, back to the House for concurrence.
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That same day, after the bill had been modified and passed
by the Senate, a State Board of Elections employee e-mailed data
to Representative Lewis, one of the bill’s House sponsors.

The

data contained verification rates for same-day registration in
the 2010 and 2012 elections and information about the type of
identifications presented by same-day registrants.
On the evening of July 25, the House received the Senate’s
version

of

House

Bill

the

measure

characterized

589.

During

“variously

as

debate,
voter

opponents

suppression,

partisan, and disproportionately affecting” African Americans,
young voters, and the elderly.
At

10:39

p.m.

that

night,

McCrory, 997 F. Supp. 2d at 337.

the

House

voted–again

along

party

lines–to concur in the Senate’s version of House Bill 589.
The bill was ratified the next day, July 26, and presented
to Governor Patrick McCrory on July 29.

The Governor signed

House Bill 589 into law on August 12, 2013.
That very same day, Plaintiffs filed lawsuits challenging
certain House Bill 589 provisions in the federal district court
for the Middle District of North Carolina.

Plaintiffs alleged

that the challenged provisions violated both the United States
Constitution and the Voting Rights Act.

Soon thereafter, in

September 2013, the United States filed a lawsuit challenging
certain House Bill 589 provisions exclusively under the Voting

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And finally, a group of young voters intervened,

also asserting constitutional claims.
The

lawsuits

were

consolidated,

the

parties

undertook

discovery, and Plaintiffs moved for a preliminary injunction.
House Bill 589 contains numerous provisions, only some of which
Plaintiffs

challenge.

Specifically,

Plaintiffs

challenge

the

legality of, and asked the court to enjoin: the elimination of
same-day voter registration; the elimination of out-of-precinct
voting; the reduction of early-voting days; an increase in atlarge observers at the polls and the deputizing of any resident
to

challenge

ballots

at

the

polls;

the

elimination

of

the

discretion of county boards of elections to extend poll hours
under

extraordinary

circumstances;

and

the

soft

roll-out

of

voter identification requirements to go into effect in 2016.

A. Same-Day Registration
In 2007, the General Assembly passed legislation permitting
same-day registration at early-voting sites.

The law provided

that “an individual who is qualified to register to vote may
register in person and then vote at [an early-voting] site in
the person’s county of residence during the period for [early]
voting provided under [Section] 163-227.2.”
Laws

253,

(2008)).

§

1

(codified

at

N.C.

Gen.

Stat.

2007 N.C. Sess.
§

163-82.6A(a)

The law required a prospective voter to complete a
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voter-registration form and produce a document to prove his or
her current name and address.

Id. (codified at N.C. Gen. Stat.

§ 163-82.6A(b) (2008)).
If the registrant wanted to vote immediately, he or she
could

“vote

[Section]

a

retrievable

163-227.2

absentee

immediately

ballot

after

as

provided

registering.”

(codified at N.C. Gen. Stat. § 163-82.6A(c) (2008)).

in
Id.

Within two

business days, both the pertinent county board of elections and
the State Board of Elections were required to verify the voter’s
driver’s license or social security number, update the database,
proceed to verify the voter’s proper address, and count the vote
unless it was determined that the voter was not qualified to
vote.

Id. (codified at N.C. Gen. Stat. § 163-82.6A(d) (2008)).

House Bill 589 eliminated same-day registration.

A voter’s

registration must now be postmarked at least twenty-five days
before Election Day or, if delivered in person or via fax or
scanned document, received by the county board of elections at a
time

established

by

the

board.

N.C.

Gen.

Stat.

§

163-

testimony

that

82.6(c)(1)-(2).
Plaintiffs’
African

American

expert
North

presented

unrebutted

Carolinians

have

used

same-day

registration at a higher rate than whites in the three federal
elections during which it was offered.

Specifically, in 2012,

13.4% of African American voters who voted early used same-day
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registration, as compared to 7.2% of white voters; in the 2010
midterm, the figures were 10.2% and 5.4%, respectively; and in
2008, 13.1% and 8.9%.

The district court therefore concluded

that the elimination of same-day registration would “bear more
heavily

on

African-Americans

than

whites.”

McCrory,

997

F.

Act,

42

Supp. 2d at 355.

B. Out-of-Precinct Voting
In

2002,

Congress

U.S.C. §§ 15301-15545.

passed

the

Help

America

Vote

Under the Help America Vote Act, states

are required to offer provisional ballots to Election Day voters
who changed residences within thirty days of an election but
failed to report the move to their county board of elections.
See 42 U.S.C. § 15482(a).

However, such provisional ballots are

only required to be counted “in accordance with State law.”

Id.

§ 15482(a)(4).
In

response,

the

North

Carolina

General

Assembly

passed

Session Law 2005-2, removing the requirement that voters appear
in the proper precinct on Election Day in order to vote.

2005

N.C. Sess. Law 2, § 2 (codified at N.C. Gen. Stat. § 163-55(a)
(2006)).

The law provided that “[t]he county board of elections

shall count [out-of-precinct provisional ballots] for all ballot
items on which it determines that the individual was eligible

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under State or federal law to vote.”

Id. § 4 (codified at N.C.

Gen. Stat. § 163-166.11(5) (2006)).
The General Assembly made a finding when it adopted the
mechanism in SL 2005-2 that “‘of those registered voters who
happened

to

vote

provisional

ballots

outside

their

resident

precincts on the day of the November 2004 General Election, a
disproportionately

high

percentage

were

African-American.’”

McCrory, 997 F. Supp. 2d at 368 (citation omitted).
The district court found that (1) between the years 2006
and 2010, an average of 17.1% of African Americans in North
Carolina moved within the State, as compared to only 10.9% of
whites; and (2) 27% of poor African Americans in North Carolina
lack

access

to

the

court

Also,
experts

that

provisional
voters.”

a

vehicle,
accepted

“the

compared
the

Id. at 366.

will

8.8%

of

determinations

prohibition

ballots

to

on

poor

of

counting

whites.

Plaintiffs’

out-of-precinct

disproportionately

affect

black

According to calculations the district

court accepted, the total number of African Americans using outof-precinct

voting

represents

vote in that election.

0.342%

of

the

African

American

The total share of the overall white

vote that voted out-of-precinct was 0.21%.

Id.

House Bill 589

bars county boards of elections from counting such ballots.

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C. Early Voting
“No-excuse”

early

voting

was

established

for

even-year

general elections in North Carolina beginning in 2000.

1999

N.C. Sess. Law 455, § 1 (codified at N.C. Gen. Stat. §§ 163226(a1), 163-227.2(a1) (2000)).

At that point, a registered

voter could present herself at her county board of elections
office

“[n]ot

earlier

than

the

first

business

day

after

the

twenty-fifth day before an election . . . and not later than
5:00 p.m. on the Friday prior to that election” to cast her
ballot.

N.C. Gen. Stat. § 163-227.2(b) (2000).

After

the

2000

election

cycle,

the

General

expanded no-excuse early voting to all elections.
Sess. Law 337, § 1.

Assembly
2001 N.C.

It also amended the early-voting period so

that voters could appear at the county board of elections office
to

vote

“[n]ot

earlier

than

the

third

Thursday

before

an

election . . . and not later than 1:00 P.M. on the last Saturday
before

that

election.”

2001

N.C.

Sess.

Law

319,

(codified at N.C. Gen. Stat. § 163-227.2(b) (2002)).

§

5(a)

Under this

law, county boards of elections were required to remain open for
voting until 1:00 p.m. on that final Saturday, but retained the
discretion to allow voting until 5:00 p.m.

Id.

They were also

permitted to maintain early-voting hours during the evening or
on

weekends

throughout

the

early-voting

period.

(codified at N.C. Gen. Stat. § 163-227.2(f) (2002)).
18

Id.

§

5(b)

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House Bill 589 changes the law to allow only ten days of
early voting.

It also eliminates the discretion county boards

of elections had to stay open until 5:00 p.m. on the final
Saturday of early voting.
The district court found that in 2010, 36% of all African
American

voters

compared

to

that

33.1%

of

cast

ballots

white

utilized

voters.

By

early

voting,

comparison,

in

as
the

presidential elections of 2008 and 2012, over 70% of African
American voters used early voting compared to just over 50% of
white voters.

D. Poll Observers and Challengers
North

Carolina

law

permits

the

chair

of

each

political

party in every county to “designate two observers to attend each
voting place at each primary and election.”
163-45(a).

N.C. Gen. Stat. §

House Bill 589 allows the chair of each county party

to “designate 10 additional at-large observers who are residents
of that county who may attend any voting place in that county.”
2013 N.C. Sess. Law 381, § 11.1 (codified at N.C. Gen. Stat. §
163-45(a)).

“Not

more

than

two

observers

from

the

same

political party shall be permitted in the voting enclosure at
any time, except that in addition one of the at-large observers
from each party may also be in the voting enclosure.”
list

of

at-large

observers

must
19

be

“provided

by

Id.

the

The

county

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director

of

precinct].”

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elections

to

the

Pg: 20 of 69

chief

judge

[for

each

affected

Id. (codified at § 163-45(b)).

In conjunction with the addition of at-large observers, the
law now permits any registered voter in the county to challenge
a ballot on Election Day.
Stat. § 163-87)).

Id. § 20.2 (codified at N.C. Gen.

And during early voting, any state resident

may now challenge ballots.

Id. § 20.1 (codified at N.C. Gen.

Stat. § 163-84)).

E. County Boards of Elections Discretion to Keep the
Polls Open
Under North Carolina law, the polls on Election Day are to
remain open from 6:30 a.m. until 7:30 p.m.
163-166.01.

N.C. Gen. Stat. §

Beginning in 2001, each county board of elections

had the power to “direct that the polls remain open until 8:30
p.m.” in “extraordinary circumstances.”

2001 N.C. Sess. Laws

460, § 3 (codified at N.C. Gen. Stat. § 163-166 (2002)).
Bill

589

eliminates

the

discretion

of

the

county

House

boards

of

elections by deleting the “extraordinary circumstances” clause.
2013 N.C. Sess. Law 381, § 33.1.
The law now provides “If the polls are delayed in opening
for more than 15 minutes, or are interrupted for more than 15
minutes after opening, the State Board of Elections may extend
the closing time by an equal number of minutes.

20

As authorized

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by law, the State Board of Elections shall be available either
in person or by teleconference on the day of election to approve
any such extension.”

N.C. Gen. Stat. § 163-166.01.

F. Socioeconomic Disparities in North Carolina
The district court found that Plaintiffs’ expert testimony
“demonstrate[d] that black citizens of North Carolina currently
lag

behind

including

whites

2d

several

education,

transportation,
Supp.

in

at

and

key

socioeconomic

employment,

residential

348.

income,

stability.”

Plaintiffs

indicators,
access

McCrory,

presented

997

to
F.

“unchallenged

statistics,” for example, that (1) as of 2011-12, 34% of African
American North Carolinians live below the federal poverty level,
compared to 13% of whites; (2) as of the fourth quarter of 2012,
unemployment

rates

in

North

Carolina

were

17.3%

for

African

Americans and 6.7% for whites; (3) 15.7% of African American
North Carolinians over age 24 lack a high school degree, as
compared to 10.1% of whites; (4) 27% of poor African American
North Carolinians do not have access to a vehicle, compared to
8.8% of poor whites; and (5) 75.1% of whites in North Carolina
live in owned homes as compared to 49.8% of African Americans.
Id.

at

348

n.27.

The

district

court

accepted

that

“North

Carolina’s history of official discrimination against blacks has

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resulted in current socioeconomic disparities with whites.”

Id.

at 366.

II.

Standard of Review

The

district

conclusions
Therein,

in

the

court

an

made

opinion

district

these

and

court

order

Emergency

denied,

Motion

instead

for

granting

Injunction

other

filed

denied

request for a preliminary injunction.
an

and

August

completely

8,

and
2014.

Plaintiffs’

Plaintiffs in turn filed
Pending

Plaintiffs’

findings

motion

Appeal,
to

which

expedite

we

this

appeal.
We

evaluate

preliminary
review[ing]

the

district

injunction
the

district

“for

court’s
an

court’s

decision

abuse
factual

of

to

deny

a

discretion[,]

findings

error and . . . its legal conclusions de novo.”

for

clear

Pashby v.

Delia, 709 F.3d 307, 319 (4th Cir. 2013) (internal quotation
marks

and

citations

omitted).

A

district

court

abuses

its

discretion when it misapprehends or misapplies the applicable
law.

See, e.g., Centro Tepeyac v. Montgomery Cnty., 722 F.3d

185, 188 (4th Cir. 2013)(en banc).

“Clear error occurs when,

although there is evidence to support it, the reviewing court on
the

entire

evidence

is

left

with

the

definite

conviction that a mistake has been committed.”

22

and

firm

United States v.

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Harvey, 532 F.3d 326, 336 (4th Cir. 2008)(internal quotation
marks and citations omitted).

III. Preliminary Injunction Analysis
A

preliminary

injunction

may

either prohibitory or mandatory.
the

preliminary

injunction

be

characterized

as

being

Here, Plaintiffs assert that

they

seek

is

prohibitory

while

Defendants claim it is mandatory, which “in any circumstance is
disfavored.”

Taylor v. Freeman, 34 F.3d 266, 270 n.2 (4th Cir.

1994).
Whereas
prohibitory
prevent

mandatory
injunctions

irreparable

injunctions
“aim

harm

Pashby, 709 F.3d at 319.
this

purpose

to

be

“the

to

while

alter

maintain
a

the
the

lawsuit

status

status

remains

quo,

quo

and

pending.”

We have defined the status quo for
last

uncontested

status

between

the

parties which preceded the controversy.”

Id. at 320 (internal

quotation

“To

sometimes

marks

and

necessary

citation
to

omitted).

require

a

party

be

who

sure,
has

it

is

recently

disturbed the status quo to reverse its actions, but . . .
[s]uch an injunction restores, rather than disturbs, the status
quo ante.”

Aggarao v. MOL Ship Mgmt. Co., 675 F.3d 355, 378

(4th Cir. 2012) (internal quotation marks and citation omitted).
Here,

Plaintiffs

brought

their

lawsuits

challenging

elements of House Bill 589 on the very same day it was signed
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into law—August 12, 2013.
to

enjoin

House

registration],

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Plaintiffs then filed motions seeking

Bill

589’s

out-of-precinct

“elimination

provisional

of

voting,

registration[, and] its cutback of early voting.”
F. Supp. 2d at 339 (emphasis added).
language

and

stuff

of

a

[same-day
and

pre-

McCrory, 997

Without doubt, this is the

prohibitory

injunction

seeking

to

maintain the status quo.
To

win

such

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.

Winter v.

Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).

IV. Preliminary Injunction Denied On Certain
House Bill 589 Provisions
At the outset, we determine that Plaintiffs have failed to
establish at least one element necessary to win a preliminary
injunction with respect to the following provisions of House
Bill

589:

(i)

the

reduction

of

early-voting

days;

(ii)

the

expansion of allowable voter challengers; (iii) the elimination
of the discretion of county boards of elections to keep the
polls open an additional hour on Election Day in “extraordinary
circumstances”;

(iv)

the

elimination

24

of

pre-registration

of

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sixteen- and seventeen-year-olds who will not be eighteen years
old by the next general election; and (v) the soft roll-out of
voter identification requirements to go into effect in 2016.
With respect to early voting, we are convinced that the
significant risk of a substantial burden to the State tips the
balance of hardships in its favor.

Were we to enjoin House Bill

589’s reduction in early-voting days, early voting would need to
begin in approximately two weeks. We conclude that this very
tight timeframe represents a burden not only on the State, but
also

on

the

county

boards

of

elections.

The

balance

of

hardships thus favors denying a preliminary injunction as to
early voting.
With respect to pre-registration of sixteen- and seventeenyear-olds, as the district court correctly noted, only citizens
eighteen years and older may vote.

The State’s refusal to pre-

register sixteen- and seventeen-year-olds will, therefore, not
harm citizens who may vote in the upcoming general election.
The district court therefore did not abuse its discretion in
determining that, while Plaintiffs could well succeed on this
claim

at

trial,

they

have

not

shown

that

“they

irreparably harmed before trial absent an injunction.”

will

be

McCrory,

997 F. Supp. 2d at 378.
Regarding

the

elimination

of

the

discretion

of

county

boards of elections to keep the polls open an additional hour on
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Election

Day

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in

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“extraordinary

circumstances,”

the

district

court did not abuse its discretion in finding that Plaintiffs
have failed to show that they will be irreparably harmed by this
provision in the upcoming election.
as

the

district

court

noted,

This is particularly true,

given

that

the

State

Board

of

Elections “retains the ability to make up significant losses in
time by ordering the polls to remain open on the event of a
delay.”
will

Id. at 380.

not

ultimately

provision at trial.

Again, this is not to say that Plaintiffs
succeed

with

their

challenge

to

this

They simply have not shown irreparable harm

for purposes of the preliminary injunction.
With respect to the soft roll-out of voter identification
requirements to go into effect in 2016, as the district court
noted, Plaintiffs did provide evidence that a husband and wife
were improperly advised that they needed a photo identification
in order to vote in the May 2014 primary.
2d at 377.

McCrory, 997 F. Supp.

While that couple was certainly misinformed, and

while that fact raises a red flag, Plaintiffs cannot escape the
fact that even that couple was, in fact, allowed to vote.

Id.

While we share Plaintiffs’ concern that requiring poll workers
to implement the soft rollout without adequate training might
result

in

some

confusion,

we

are

unable

to

find

that

the

district court committed clear error in deeming this argument
“speculative.”

McCrory,

997

F.
26

Supp.

2d

at

377.

Again,

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may

well

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succeed

identification law at trial.

with

their

challenge

to

the

We hold only that, for purposes of

the upcoming election, they have not shown irreparable injury.
Finally, with respect to House Bill 589’s poll challenger
and observer provision, we 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.

Any intimidation is unlawful and cannot

be tolerated, and courts must be vigilant to ensure that such
conduct is rooted out where it may appear.”
Supp. 2d at 380.

McCrory, 997 F.

Nevertheless, the district court did not abuse

its discretion in finding that Plaintiffs have not shown that
any such irreparable harm is likely to occur in the upcoming
election.
provided

The
no

district

basis

to

court

suggest

found
that

that
poll

“Plaintiffs
observers

challenger(s) will abuse their statutory power.”

Id.

have

or

any

Although

we are skeptical as to the ultimate accuracy of this prediction,
we cannot say that the district court committed clear error.
We do not mean to suggest that Plaintiffs cannot prove and
eventually

succeed

on

their

challenges

provisions when their case goes to trial.

to

all

of

these

Indeed, a proper

application of the law to a more developed factual record could
very well result in some or all of the challenged House Bill 589
provisions being struck down.

At this point in time, however,
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we hold that, for purposes of a preliminary injunction as to
this November’s election and based on the facts as found by the
district court for the limited purpose of addressing Plaintiffs’
request for a preliminary injunction, the district court did not
abuse its discretion in determining that Plaintiffs have not
shown that the balance of hardships tips in their favor as to
early voting or that they will suffer irreparable harm as to the
other provisions discussed above.

V. Analysis Of Same-Day Registration and
Out-of-Precinct Voting Challenges
We now turn to the remaining two challenged provisions of
House Bill 589: the elimination of same-day registration and the
prohibition on counting out-of-precinct ballots.

We begin our

analysis by evaluating Plaintiffs’ likelihood of success on the
merits of their Section 2 claims.

Determining that Plaintiffs

have shown that they are likely to succeed on the merits, we
then

proceed

injunction
irreparable

to

the

analysis:
harm;

remaining
whether

whether

elements

Plaintiffs

the

of

are

injunction

the
likely

is

in

preliminary
to

suffer

the

public

interest; and finally, whether the balance of hardships tips in
Plaintiffs’ favor.

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A. Likelihood of Success on the Merits on Section 2
Section 2 of the Voting Rights Act forbids any “standard,
practice, or procedure” that “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.

codified at 42 U.S.C. § 1973(a)).

§

10301(a)

(formerly

“A violation of subsection

(a) is established if, based on the totality of circumstances,
it is shown that the political processes leading to nomination
or

election

in

the

State

or

political

subdivision

are

not

equally open to participation by” citizens of protected races
“in that [they] have less opportunity than other members of the
electorate to participate in the political process and to elect
representatives of their choice.”
With

Section

nationwide

ban

on

2,

52 U.S.C. § 10301(b).

Congress

racial

effectuated

discrimination”

discrimination in voting is too much.”
at 2631.

a

because

“permanent,
“any

racial

Shelby Cnty., 133 S. Ct.

Accordingly, Section 2 “prohibits all forms of voting

discrimination”

that

lessen

opportunity

for

minority

voters.

Gingles, 478 U.S. at 45 n.10.
“Both the Federal Government and individuals” may sue to
enforce

Section

2,

under

which

“injunctive

relief

is

available . . . to block voting laws from going into effect.”
Shelby Cnty., 133 S. Ct. at 2619.

Thus, in two very recent

cases, courts granted injunctive relief to plaintiffs with vote29

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denial claims where state election laws less sweeping than North
Carolina’s had recently been passed.

Ohio State Conference of

N.A.A.C.P. v. Husted, __ F. Supp. 2d __, 2014 WL 4377869 (S.D.
Ohio 2014), aff’d, No. 14–3877, 2014 WL 4724703 (6th Cir. Sept.
24, 2014), stayed, No. 14A336, Order List 573 U.S., 2014 WL
4809069 (U.S. Sept. 29, 2014); Frank v. Walker, __ F. Supp. 2d.
__, 2014 WL 1775432 (E.D. Wis. 2014), stayed, 2014 WL 4494153
(7th Cir. Sept. 12, 2014).
Under Section 2 as it exists today, showing intentional
discrimination is unnecessary. 4

Instead, a Section 2 violation

can “be established by proof of discriminatory results alone.”
Chisom v. Roemer, 501 U.S. 380, 404 (1991).

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.’”
(footnote

omitted)(quoting

S.Rep.

No.

Gingles, 478 U.S. at 44
97–417,

97th

Cong.2nd

Sess. 28 (1982), U.S. Code Cong. & Admin. News 1982, p. 206).
4

The Supreme Court had previously read an intent
requirement into Section 2, but Congress quickly amended the law
to reject that interpretation. See, e.g., Gingles, 478 U.S. at
43-44 (noting that Congress “dispositively reject[ed] the
position of the plurality in Mobile v. Bolden, 446 U.S. 55, 100
S. Ct. 1490, 64 L.Ed.2d 47 (1980), which required proof that the
contested electoral practice or mechanism was adopted or
maintained with the intent to discriminate against minority
voters”).

30

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In other words, “[t]he essence of a [Section] 2 claim is that a
certain

electoral

law,

practice,

or

structure

interacts

with

social and historical conditions to cause an inequality in the
opportunities enjoyed by black and white voters to elect their
preferred representatives.”

Id. at 47.

Section 2’s use to date has primarily been in the context
of

vote-dilution

challenges

to

redistricting
diminishing

cases.

“Vote

dilution

methods

or

of

at-large

districts—as

minorities’

4724703, at *24.

electing

voting

claims

involve

representatives—like
having

strength.”

the

effect

of

2014

WL

Husted,

The district court in this case correctly

noted that there is a paucity of appellate case law evaluating
the

merits

McCrory,

of

997

Section
F.

2

Supp.

claims

2d

at

in

346.

the

vote-denial

It

may

well

context.
be

that,

historically, Section 2 claims focused on vote dilution.

But

the predominance of vote dilution in Section 2 jurisprudence
likely stems from the effectiveness of the now-defunct Section 5
preclearance requirements that stopped would-be vote denial from
occurring in covered jurisdictions like large parts of North
Carolina.

Even the district court recognized as much.

Id.

The facts of this case attest to the prophylactic success
of

Section

5’s

preclearance

requirements.

It

appears

that

Section 5, which required covered jurisdictions to prove that a
change

in

electoral

law

had

neither
31

“the

purpose

[nor]

the

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effect of denying or abridging the right to vote on account of
race or color,” 52 U.S.C. § 10304(a), was the only reason House
Bill 589’s sponsors did not reveal the “full bill” to the public
until after the Shelby County decision came down.

McCrory, 997

F. Supp. 2d at 336.
Nonetheless,

despite

the

success

of

Section

5’s

preclearance requirement at tamping down vote denial in covered
jurisdictions, Section 2’s use to date has not been entirely
dilution-focused.

Rather, courts have entertained vote-denial

claims

a

regarding

wide

range

of

practices,

including

restrictive voter identification laws (Frank, 2014 WL 1775432);
unequal

access

to

voter

registration

opportunities

(Operation

PUSH v. Allain, 674 F. Supp. 1245 (N.D. Miss. 1987), aff’d sub
nom, Operation PUSH v. Mabus, 932 F.2d 400 (5th Cir. 1991));
unequal access to polling places (Brown v. Dean, 555 F. Supp.
502 (D.R.I. 1982)); and omnibus laws combining registration and
voting restrictions (Husted, 2014 WL 4377869, aff’d, 2014 WL
4724703).
Indeed, Section 2’s plain language makes clear that vote
denial is precisely the kind of issue Section 2 was intended to
address.

Section

2

of

the

Voting

Rights

Act

forbids

any

“standard, practice, or procedure” that “results in a denial or
abridgement of the right of any citizen of the United States to
vote on account of race or color.”
32

52 U.S.C. § 10301(a).

See

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also Gingles, 478 U.S. at 45 n.10 (“Section 2 prohibits all
forms of voting discrimination, not just vote dilution.”).
Further,

the

principles

that

make

vote

dilution

objectionable under the Voting Rights Act logically extend to
vote denial.
routinely

Everyone in this case agrees that Section 2 has

been

used

to

address

vote

dilution—which

basically

allows all voters to ‘sing’ but forces certain groups to do so
pianissimo.

Vote denial is simply a more extreme form of the

same pernicious violation—those groups are not simply made to
sing quietly; instead their voices are silenced completely.

A

fortiori, then, Section 2 must support vote-denial claims.
Justice Scalia has provided a helpful illustration of what
a Section 2 vote-denial claim might look like:
If, for example, a county permitted voter registration
for only three hours one day a week, and that made it
more difficult for blacks to register than whites,
blacks would have less opportunity “to participate in
the political process” than whites, and [Section] 2
would therefore be violated . . . .
Chisom, 501 U.S. at 408 (Scalia, J., dissenting).
Based on our reading of the plain language of the statute
and relevant Supreme Court authority, we agree with the Sixth
Circuit

that

a

Section

2

vote-denial

claim

consists

of

elements:
•

First, “the challenged ‘standard, practice, or
procedure’ must impose a discriminatory burden on
members of a protected class, meaning that
members
of
the
protected
class
‘have
less
33

two

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•

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opportunity than other members of the electorate
to participate in the political process and to
elect representatives of their choice.’” Husted,
2014 WL 4724703, at *24 (quoting 42 U.S.C. §
1973(a)-(b));
Second, that burden “must in part be caused by or
linked to ‘social and historical conditions’ that
have or currently produce discrimination against
members of the protected class.”
Id. (quoting
Gingles, 478 U.S. at 47).

“In assessing both elements, courts should consider ‘the
totality of circumstances.’”
1973(b)).

Id. at *24 (quoting 42 U.S.C. §

In evaluating Section 2 claims, courts have looked to

certain “typical” factors pulled directly from the Voting Rights
Act’s legislative history:
•
•
•

•
•

•
•
•

The
history
of
voting-related
discrimination
in
the
pertinent State or political subdivision;
The extent to which voting in the elections of the
pertinent State or political subdivision is racially
polarized;
The extent to which the State or political subdivision has
used voting practices or procedures that tend to enhance
the opportunity for discrimination against the minority
group, such as unusually large election districts, majority
vote requirements, and prohibitions against bullet voting;
The exclusion of members of the minority group from
candidate slating processes;
The extent to which minority group members bear the effects
of past discrimination in areas such as education,
employment, and health, which hinder their ability to
participate effectively in the political process;
The use of even subtle racial appeals in political
campaigns;
The extent to which members of the minority group have been
elected to public office in the jurisdiction;
Evidence
demonstrating
that
elected
officials
are
unresponsive to the particularized needs of the members of
the minority group; and

34

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The extent to which the policy underlying the State’s or
the political subdivision’s use of the contested practice
or structure is tenuous.

Gingles, 478 U.S. at 44-45. These factors may shed light on
whether the two elements of a Section 2 claim are met.
Notably, while these factors “may be relevant” to a Section
2 analysis, “‘there is no requirement that any particular number
of factors be proved, or [even] that a majority of them point
one way or the other.’”

Id. at 45 (quoting S. Rep. No. 97–417,

97th Cong.2nd Sess. 29 (1982), U.S. Code Cong. & Admin. News
1982, p. 207).

This is not surprising, given that Congress

intended to give the Voting Rights Act “the broadest possible
scope.”

Allen v. State Bd. of Elections, 393 U.S. 544, 567

(1969).
Instead,
evaluation

of

courts
the

must
‘past

undertake
and

“a

present

searching
reality,’

‘functional’ view of the political process.”

practical
[with]

a

Gingles, 478 U.S.

at 45 (quoting S. Rep. at 30, U.S. Code Cong. & Admin. News
1982, p. 208).

Courts must make “an intensely local appraisal

of the design and impact of” electoral administration “in the
light of past and present reality.”

Id. at 78 (quoting White v.

Regester, 412 U.S. 755, 769-70 (1973)).
With

this

legal

framework

in

district court’s Section 2 analysis.

35

mind,

we

turn

now

to

the

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1. The District Court
Misapplied the Law

Misapprehended

and

A close look at the district court’s analysis here reveals
numerous

grave

discretion.

errors

of

law

that

constitute

an

abuse

of

Centro Tepeyac, 722 F.3d at 188.

First, the district court bluntly held that “Section 2 does
not incorporate a ‘retrogression’ standard” and that the court
therefore was “not concerned with whether the elimination of
[same-day

registration

and

other

features]

will

worsen

the

position of minority voters in comparison to the preexisting
voting

standard,

practice

or

procedure—a

Section

5

inquiry.”

McCrory, 997 F. Supp. 2d at 351-52 (internal quotation marks and
citations omitted).
Contrary to the district court’s statements, Section 2, on
its

face,

review.
practices

requires

a

broad

“totality

52 U.S.C. § 10301(b).
is

part

and

of

the

circumstances”

Clearly, an eye toward past

parcel

of

the

totality

of

the

circumstances.
Further, as the Supreme Court noted, “some parts of the
[Section] 2 analysis may overlap with the [Section] 5 inquiry.”
Georgia v. Ashcroft, 539 U.S. 461, 478 (2003).

Both Section 2

and Section 5 invite comparison by using the term “abridge[].”
Section 5 states that any voting practice or procedure “that has
the

purpose

of

or

will

have

the

36

effect

of

diminishing

the

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ability of any citizens of the United States on account of race
or color . . . to elect their preferred candidates of choice
denies or abridges the right to vote.”
(emphasis added).

52 U.S.C. § 10304(b)

Section 2 forbids any “standard, practice, or

procedure” that “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) (emphasis added).

The Supreme

Court has explained that “[t]he term ‘abridge,’ . . . whose core
meaning is ‘shorten,’. . . necessarily entails a comparison.

It

makes no sense to suggest that a voting practice ‘abridges’ the
right to vote without some baseline with which to compare the
practice.”

Reno v. Bossier Parish Sch. Bd., 528 U.S. 320, 333–

34 (2000) (citations omitted).
Neither

the

Supreme

Court

nor

this

Court

has

ever

held

that, in determining whether an abridgement has occurred, courts
are categorically barred from considering past practices, as the
district court here suggested.
circuits
Tenth

support

Circuit,

history,

has

the

opposite

quoting

explained

In fact, opinions from other
conclusion.

directly
that

from

“‘[i]f

For

Section
[a

example,

2’s

the

legislative

challenged]

procedure

markedly departs from past practices or from practices elsewhere
in the jurisdiction, that bears on the fairness of its impact.’”
Sanchez v. State of Colo., 97 F.3d 1303, 1325 (10th Cir. 1996)
(quoting 1982 U.S.C.C.A.N. at 207, n.117).
37

And as the Sixth

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Circuit recently held, under Section 2, “the focus is whether
minorities enjoy less opportunity to vote as compared to other
voters.

The

fact

that

a

practice

or

law

eliminates

voting

opportunities that used to exist under prior law that African
Americans disproportionately used is therefore relevant to an
assessment

of

Americans

whether,

have

an

under

equal

the

current

opportunity

to

system,

participate

political process as compared to other voters.”

African
in

the

Husted, 2014 WL

4724703, at *28.
In this case, North Carolina’s previous voting practices
are centrally relevant under Section 2.
piece

of

the

requires.

They are a critical

totality-of-the-circumstances

analysis

Section

2

In refusing to consider the elimination of voting

mechanisms successful in fostering minority participation, the
district court misapprehended and misapplied Section 2.
Second,

the

district

court

considered

electoral mechanism only separately.

each

challenged

See McCrory, 997 F. Supp.

2d at 344 (addressing same-day registration), at 365 (addressing
out-of-precinct

voting),

(identification

requirements),

teenagers),

at

379

keep

the

discretion

and
to

at

370
at

(poll

(early
378

open).

at

(pre-registration

challengers

polls

voting),

and

Yet

elimination

“[a]

panoply

375
of
of
of

regulations, each apparently defensible when considered alone,
may

nevertheless

have

the

combined
38

effect

of

severely

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restricting participation and competition.”

Clingman v. Beaver,

544 U.S. 581, 607-08 (2005) (O’Connor, J., concurring in part
and concurring in the judgment).
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.
Section

2’s

mandate

to

Doing so is hard to square with
look

at

the

“totality

of

the

circumstances,” 52 U.S.C. § 10301(b), as well as Supreme Court
precedent requiring “a searching practical evaluation” with a
“functional view of the political process.”
at

45

(internal

quotation

marks

and

Gingles, 478 U.S.

citations

omitted).

By

looking at each provision separately and failing to consider the
totality

of

the

circumstances,

then,

the

district

court

misapprehended and misapplied the pertinent law.
Third,

the

district

court

failed

to

adequately

North Carolina’s history of voting discrimination.

consider

Instead the

district court parroted the Supreme Court’s proclamation that
“‘history did not end in 1965,’” McCrory, 997 F. Supp. 2d at 349
(quoting Shelby Cnty., 133 S. Ct. at 2628) and that “‘[p]ast
discrimination cannot, in the manner of original sin, condemn
governmental action.’”

Id. (quoting City of Mobile, Ala. v.

Bolden, 446 U.S. 55, 74 (1980)).

39

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Of course, the history of voting discrimination in many
states in fact did substantially end in 1965—due in large part
to the Voting Rights Act.

The Supreme Court’s observation that

a

not

state’s

however,

history
does

should

not

transgressions.

serve

absolve

to

states

condemn

future,

their

from

its

future

As Justice Ginsburg pointed out in her Shelby

County dissent, casting aside the Voting Rights Act because it
has worked “to stop discriminatory changes is like throwing away
your umbrella in a rainstorm because you are not getting wet.”
133 S. Ct. at 2650 (Ginsburg, J., dissenting).
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

Supp. 2d at 336.

pre–Shelby

County

era.

McCrory,

997

F.

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.
Fourth,

in

analyzing

the

elimination

of

same-day

registration, the district court looked to the National Voter
Registration Act, which generally allows for a registration cutoff of thirty days before an election.
40

McCrory, 997 F. Supp. 2d

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at 352.

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Pg: 41 of 69

The district court then declared that “it is difficult

to conclude that Congress intended that a State’s adoption of a
registration

cut-off

before

violation of Section 2.”

election

Id.

day

would

constitute

a

In doing so, the district court

lost sight of the fact that the National Voter Registration Act
merely sets a floor for state registration systems.
That

North

Carolina

used

to

exceed

National

Voter

Registration Act registration minimums does not entitle it to
eliminate

its

ensuring

that,

Indeed,
National
rights

more
in

Congress
Voter
and

generous
doing

made

so,

that

Registration

remedies

it

registration
it

is

quite
Act

not

violating

clear

an

provisions

by

Section

including

express

established

without

warning

shall

not

2.

in

the

that

the

“supersede,

restrict, or limit the application of the Voting Rights Act.”
52 U.S.C. § 20510(d)(1).
Fifth,

also

with

respect

to

same-day

registration,

the

district court suggested that because voting was not completely
foreclosed and because voters could still register and vote by
mail, a likely Section 2 violation had not been shown.

See

McCrory, 997 F. Supp. 2d at 356 (noting that “North Carolina
provides

several

registration

that

other
“have

ways
not

to
been

register”
shown

unavailable to African–American residents”).

41

besides
to

be

same-day

practically

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However,

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nothing

in

Pg: 42 of 69

Section

2

requires

a

showing

voters cannot register or vote under any circumstance.
it

requires

structure

“that

a

interacts

certain

with

electoral

social

and

law,

historical

that

Instead,

practice,

or

conditions

to

cause an inequality in the opportunities enjoyed by black and
white

voters

to

elect

Gingles, 478 U.S. at 47.
African

American

use

their

preferred

representatives.”

In waiving off disproportionately high

of

certain

curtailed

registration

and

voting mechanisms as mere “preferences” that do not absolutely
preclude

participation,

discretion.

the

district

court

abused

its

See McCrory, 997 F. Supp. 2d at 351.

Sixth, Section 2, on its face, is local in nature.

Under

Section 2, “[a] violation . . . is established if, based on the
totality
processes

of

circumstances,

leading

to

it

is

nomination

or

shown

that

election

in

the
the

political
State

or

political subdivision are not equally open to participation by
citizens of protected races.”
added).

As

the

Supreme

52 U.S.C. § 10301(b) (emphasis

Court

has

noted,

in

undertaking

a

Section 2 analysis, courts make “an intensely local appraisal of
the design and impact of” electoral administration “in the light
of past and present reality.”

Gingles, 478 U.S. at 78.

Nevertheless, without any basis in the statute or binding
precedent, the district court suggested that a practice must be
discriminatory on a nationwide basis to violate Section 2 and
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held that a conclusion it might reach as to North Carolina would
somehow throw other states’ election laws into turmoil.

For

example, the district court stated that “a determination that
North

Carolina

maintaining
provisional

a

is

in

violation

system

ballots

that

could

of

does

place

Section

not

in

count

jeopardy

2

merely

for

out-of-precinct
the

laws

of

the

majority of the States, which have made the decision not to
count such ballots.”
district

court’s

McCrory, 997 F. Supp. 2d at 367.

failure

to

understand

Section 2 constituted grave error.

the

local

nature

The
of

Cf. Husted, 2014 WL 4724703,

at *29 (“There is no reason to think our decision here compels
any conclusion about the early-voting practices in other states,
which

do

not

necessarily

share

Ohio’s

particular

circumstances.”).
Seventh, the district court minimized Plaintiffs’ claim as
to out-of-precinct voting because “so few voters cast” ballots
in the wrong precincts.

McCrory, 997 F. Supp. 2d at 366.

The

district court accepted evidence that “approximately 3,348 outof-precinct
voters

were

election.”

provisional
counted
Id.

ballots

cast

some

extent

to

Going

forward

by
in

under

[African

American]

the

2012

general

House

Bill

589,

a

substantial number of African American voters will thus likely
be disenfranchised.

43

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Though the district court recognized that “failure to count
out-of-precinct provisional ballots will have a disproportionate
effect

on

[African

American]

effect “will be minimal.”

voters,”

Id.

it

held

that

such

an

Setting aside the basic truth

that even one disenfranchised voter—let alone several thousand—
is too many, what matters for purposes of Section 2 is not how
many

minority

voters

opportunities

but

denied

electoral

equal

(forbidding
interacts

any

with

are

simply

being

that

“any”

and

52

practice,
historical

equal

minority

opportunities.

“standard,
social

denied

voter

U.S.C.

or

electoral

§

is

10301(a)

procedure”

conditions

and

being

that

thereby

“results in a denial or abridgement of the right of any citizen
of the United States to vote on account of race or color”)
(emphasis added).
Eighth

and

finally,

the

district

court

rationalized

election administration changes that disproportionately affected
minority voters on the pretext of procedural inertia and underresourcing.
challenge

For example, in evaluating Plaintiffs’ Section 2
to

the

elimination

of

same-day

registration,

the

district court noted that county boards of elections “sometimes
lack[] sufficient time to verify registrants.”
Supp. 2d at 353.

McCrory, 997 F.

But in detailing why that was so, the district

court exposed that the problem’s roots lie largely in boards of
elections’ own procedures.

Id. at 353 and n.36.
44

The district

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court then noted that “a voter who registered before the ‘close
of books’ 25 days before election day will have more time to
pass the verification procedure than a voter who registered and
voted during early voting.”

McCrory, 997 F. Supp. 2d at 353.

But more time alone guarantees nothing, and nothing suggests
that a voter who registers earlier will therefore be verified
before voting.
The district court failed to recognize, much less address,
the problem of sacrificing voter enfranchisement at the altar of
bureaucratic (in)efficiency and (under-)resourcing.

After all,

Section 2 does not prescribe a balancing test under which the
State can pit its desire for administrative ease against its
minority

citizens’

right

to

vote.

The

district

court

thus

abused its discretion when it held that “[i]t is sufficient for
the State to voice concern that [same-day registration] burdened
[county

boards

of

elections]

and

left

inadequate

elections officials to properly verify voters.”

time

for

Id. at 354.

These flaws in the district court’s Section 2 analysis make
it

clear

that

the

district

misapplied the pertinent law.
abused its discretion.

court

both

misapprehended

and

Accordingly, the district court

Centro Tepeyac, 722 F.3d at 188.

45

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2. Proper Application of Section 2
Properly

applying

the

law

to

the

facts,

even

as

the

district court portrayed them, shows that Plaintiffs are, in
fact, likely to succeed on the merits of their Section 2 claims
regarding the elimination of same-day registration and out-ofprecinct voting, contrary to the district court’s determination.
In

the

determine

first

whether

step

of

House

our

Bill

Section
589’s

2

analysis,

elimination

of

we

must

same-day

registration and out-of-precinct voting imposes a discriminatory
burden on members of a protected class, meaning that members of
the protected class “have less opportunity than other members of
the electorate to participate in the political process and to
elect representatives of their choice.”

52 U.S.C. 10301.

See

also Husted, 2014 WL 4724703, at *24 (identifying the two steps
of the Section 2 vote-denial inquiry).
There can be no doubt that certain challenged measures in
House Bill 589 disproportionately impact minority voters.
district

court

found

that

Plaintiffs

“presented

The

unrebutted

testimony that [African American] North Carolinians have used
[same-day

registration]

at

a

higher

rate

than

whites

in

the

three federal elections during which [same-day registration] was
offered”

and

recognized

that

the

elimination

of

same-day

registration would “bear more heavily on African-Americans than
whites.”

McCrory, 997 F. Supp. 2d at 348-49.
46

The district

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court also “accept[ed] the determinations of Plaintiffs’ experts
that” African American voters disproportionately voted out of
precinct and that “the prohibition on counting out-of-precinct
provisional

ballots

American] voters.”

will

disproportionally

affect

[African

Id. at 366.

Second, we must determine whether this impact was in part
“caused by or linked to ‘social and historical conditions’ that
have or currently produce discrimination against members of the
protected

class.”

Husted,

Gingles, 478 U.S. at 47).

2014

WL

4724703,

at

*24

(quoting

Here, when we apply the proper legal

standard to the district court’s findings, the disproportionate
impacts of eliminating same-day registration and out-of-precinct
voting

are

clearly

linked

to

relevant

social

and

historical

conditions.
In making this determination, we are aided by consideration
of

the

“typical”

factors

legislative history.

that

Congress

noted

in

Section

2’s

However we recognize that “there is no

requirement that any particular number of factors be proved, or
that a majority of them point one way or the other.”

Gingles,

478 U.S. at 45 (internal quotation marks and citation omitted).
Regarding the history of voting-related discrimination in
the

pertinent

Carolina

.

.

State,
.

has

the
an

district

court

unfortunate

found

history

that
of

“North
official

discrimination in voting and other areas that dates back to the
47

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Nation’s founding.

Pg: 48 of 69

This experience affects the perceptions and

realities of [African American] North Carolinians to this day.”
McCrory, 997 F. Supp. 2d at 349.
One of Plaintiffs’ witnesses testified, for example, that
at around age 19—in the 1940s—she was required to recite the
Preamble to the Constitution from memory in order to register to
vote.

Id. at 349 n.29.

As of 1965, 39 counties in North

Carolina were considered covered jurisdictions under the Voting
Rights

Act,

having

“maintained

a

test

or

device

as

a

prerequisite to voting as of November 1, 1964, and [having] had
less than 50 percent voter registration or turnout in the 1964
Presidential election.”

Shelby Cnty., 133 S. Ct. at 2620.

And

in 1975, when the Voting Rights Act’s preclearance formula was
extended

to

cover

jurisdictions

that

provided

“English-only

voting materials in places where over five percent of voting-age
citizens spoke a single language other than English,” several
additional North Carolina counties became covered jurisdictions.
Id.
The district court recognized that the legacy of overtly
discriminatory

practices

such

as

these

and

the

concurrent

“struggle for African-Americans’ voting rights” justifies North
Carolinians’ skepticism of changes to voting laws.

McCrory, 997

F. Supp. 2d at 349.

The fact that the Supreme Court struck down

the

Act’s

Voting

Rights

“covered
48

jurisdictions”

formula

in

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County

does

not

allow

Pg: 49 of 69

us

to

simply

ignore

Congress’s

directive to view current changes to North Carolina’s voting
laws against the mire of its past.
Regarding

effects

of

past

discrimination

that

hinder

minorities’ ability to participate effectively in the political
process, the district court pronounced that “Plaintiffs’ expert
testimony demonstrates that [African American] citizens of North
Carolina

currently

socioeconomic

lag

indicators,

income,

access

McCrory,

997

to

F.

behind

including

transportation,

Supp.

2d

whites

at

several

key

education,

employment,

residential

and

348.

in

stability.”

To

this

end,

Plaintiffs

presented the following unchallenged statistics: (1) as of 201112, 34% of African American North Carolinians live below the
federal poverty level, compared to 13% of whites; (2) as of the
fourth quarter of 2012, unemployment rates in North Carolina
were 17.3% for African Americans and 6.7% for whites; (3) 15.7%
of African American North Carolinians over age 24 lack a high
school degree, as compared to 10.1% of whites; (4) 27% of poor
African

American

North

Carolinians

vehicle,

compared

to

8.8%

African

Americans

in

North

compared to 49.8% of whites.

of

do

not

poor

whites;

Carolina

live

have
and
in

access

to

a

(5)

75.1%

of

owned

homes

as

Id. at n.27.

Finally, as to the tenuousness of the reasons given for the
restrictions,

North

Carolina

asserts
49

goals

of

electoral

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integrity and fraud prevention.

But nothing in the district

court’s portrayal of the facts suggests that those are anything
other than merely imaginable.

And “states cannot burden the

right to vote in order to address dangers that are remote and
only ‘theoretically imaginable.’”

Frank, 2014 WL 1775432, at *8

(quoting Williams v. Rhodes, 393 U.S. 23, 33 (1968)).
Indeed, the best fact for North Carolina in the district
court’s opinion—the only specific problem cited, beyond naked
statements of bureaucratic difficulty attributable at least as
much

to

under-resourcing

of

boards

of

elections—is

that

a

thousand votes that had not yet been properly verified had been
counted in an election.

McCrory, 997 F. Supp. 2d at 353.

But

nothing in the district court’s opinion suggests that any of
those were fraudulently or otherwise improperly cast.

Thus,

even the best fact the State could muster is tenuous indeed.
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.
us,

when

viewed

in

the

context

of

relevant

“social

To
and

historical conditions” in North Carolina, Gingles, 478 U.S. at
50

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47, this looks precisely like the textbook example of Section 2
vote denial Justice Scalia provided:
If, for example, a county permitted voter registration
for only three hours one day a week, and that made it
more difficult for blacks to register than whites,
blacks would have less opportunity “to participate in
the political process” than whites, and [Section] 2
would therefore be violated . . . .
Chisom, 501 U.S. at 408.
Further,

even

if

we

were

to

accept

North

Carolina’s

purported non-discriminatory basis for keeping the full bill a
secret until the federal preclearance regime had been thrown
over

in

Shelby

results

that

Section

2’s

sometimes
subtle

County,

several

we

measures

“‘results’

blunt,

forms

of

can

in

criterion

weapon

with

escape

ignore
House

the

Bill

provides

which

discrimination.”

(Scalia, J., dissenting).
jurisdiction

cannot

to

a

discriminatory
589

powerful,

attack

Chisom,

effectuate.

501

even

albeit

the

U.S.

most

at

406

Neither North Carolina nor any other
the

powerful

protections

Section

2

affords minority voters by simply “espous[ing]” rationalizations
for a discriminatory law.
While

plaintiffs

McCrory, 997 F. Supp. 2d at 357.

seeking

preliminary

injunctions

must

demonstrate that they are likely to succeed on the merits, they
“need not show a certainty of success.”
321.

Pashby, 709 F.3d at

For the reasons set out above, Plaintiffs here have shown

that with respect to the challenged provisions of House Bill 589

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affecting same-day registration and out-of-precinct voting, they
are likely to succeed with their Section 2 claims.

In deciding

otherwise, the district court abused its discretion.

B. Irreparable Harm, the Public Interest, and the Balance
of Hardships
Having concluded that Plaintiffs have met the first test
for

a

preliminary

injunction,

likelihood

of

success

on

the

merits, as to their same-day registration and out-of-precinct
voting challenges, we must consider whether the other elements
have

similarly

been

met.

In

other

words,

we

must

analyze

whether Plaintiffs are likely to suffer irreparable harm; the
balance of the hardships; and whether the injunction is in the
public interest.
Courts

Winter, 555 U.S. at 20.

routinely

deem

rights irreparable injury.

restrictions

on

fundamental

voting

See, e.g., Obama for Am. v. Husted,

697 F.3d 423, 436 (6th Cir. 2012); Williams v. Salerno, 792 F.2d
323, 326 (2d Cir. 1986); cf. Alternative Political Parties v.
Hooks, 121 F.3d 876 (3d Cir. 1997).

And discriminatory voting

procedures in particular are “the kind of serious violation of
the Constitution and the Voting Rights Act for which courts have
granted immediate relief.”

United States v. City of Cambridge,

799 F.2d 137, 140 (4th Cir. 1986).

This makes sense generally

and here specifically because whether the number is thirty or
thirty-thousand, surely some North Carolina minority voters will
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disproportionately

election.
and

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no

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adversely

affected

in

the

upcoming

And once the election occurs, there can be no do-over

redress.

The

injury

to

these

voters

is

real

and

completely irreparable if nothing is done to enjoin this law. 5
By

definition,

permitting

as

many

“[t]he

public

qualified

Husted, 697 F.3d at 437.

interest

voters

to

.

vote

.

.

as

favors

possible.”

See also Purcell v. Gonzalez, 549 U.S.

1, 4 (2006) (The public has a “strong interest in exercising the
fundamental political right to vote.” (citations omitted)).
“upholding

constitutional

rights

serves

the

public

And

interest.”

Newsome v. Albermarle Cnty. Sch. Bd., 354 F.3d 249, 261 (4th
Cir. 2003).

The election laws in North Carolina prior to House

Bill

enactment

589’s

voters.
them

encouraged

participation

by

qualified

But the challenged House Bill 589 provisions stripped

away.

The

public

interest

thus

weighs

heavily

in

Plaintiffs’ favor.
5

The district court seemingly failed to understand this
point.
For instance, in ruling that reduction in early voting
was unlikely to cause irreparable harm to African American
voters, the district court noted that during the 2010 midterm
election, “the racial disparity in early-voting usage that was
observed in 2008 and 2012 all but disappeared.” McCrory, 997 F.
Supp. 2d at 372. In fact, the disparity was reduced from twenty
percent to three percent.
Thus, the district court seemed to
believe that the injury to a smaller margin of African American
voters that would occur during a midterm election year would be
somehow less “irreparable.”
That conclusion misapprehends the
irreparable
harm
standard
and
constituted
an
abuse
of
discretion.

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By

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contrast,

balancing

Pg: 54 of 69

the

unproblematic for Plaintiffs.

hardships

changes,

such

not

wholly

North Carolina will have little

time to implement the relief we grant.
challenged

is

as

the

But for some of the

elimination

of

same-day

registration, systems have existed, do exist, and simply need to
be

resurrected.

Similarly,

counting

out-of-precinct

ballots

merely requires the revival of previous practices or, however
accomplished,

the

counting

of

a

relatively

small

number

of

ballots. 6
In

conclusion,

required
claims
voting. 7

for

a

relating

Plaintiffs

preliminary
to

same-day

have

injunction

satisfied
as

registration

to
and

every

their

element

Section

2

out-of-precinct

Accordingly, the district court abused its discretion

6

In Purcell, 549 U.S. 1, on which the dissenting opinion
relies, the Supreme Court seemed troubled by the fact that a
two-judge motions panel of the Ninth Circuit entered a factless,
groundless “bare order” enjoining a new voter identification
provision in an impending election.
At the time of the “bare
order,” the appellate court also lacked findings by the district
court. By contrast, neither district court nor appellate court
reasoning, nor lengthy opinions explaining that reasoning, would
be lacking in this case.
7

By not addressing Plaintiffs’ constitutional claims, we do
not mean to suggest that we agree with the district court’s
analysis.
But because we find that Plaintiffs are likely to
succeed on the merits under the Voting Rights Act, we need not,
and therefore do not, reach the constitutional issues.

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in refusing to grant the requested injunctive relief as to those
provisions. 8

VI. Relief Granted
Appellate

courts

have

the

power

to

vacate

and

remand

a

denial of a preliminary injunction with specific instructions
for the district court to enter an injunction.
v.

Burns,

427

U.S.

347,

350

(1976)

See, e.g., Elrod

(affirming

the

Seventh

Circuit’s grant of a preliminary injunction the district court
had denied); Am. Civil Liberties Union of Ill. v. Alvarez, 679
F.3d

583,

608

(7th

Cir.

2012)

(reversing

and

remanding

with

instructions to enter a preliminary injunction); Newsom ex rel.
Newsom v. Albemarle Cnty. Sch. Bd., 354 F.3d 249, 252 (4th Cir.
2003) (vacating the district court’s order and remanding with
instructions to enter a preliminary injunction).

8

We respectfully disagree with the dissenting opinion that
our decision today will create any significant voter confusion.
The continuation of same-day registration and out-of-precinct
voting after today’s decision means more opportunity to register
and vote than if the entirety of House Bill 589 were in effect
for this election.
Voters who are confused about whether they
can, for example, still register and vote on the same day will
have their votes counted.
In this sense, our decision today
acts as a safety net for voters confused about the effect of
House Bill 589 on their right to vote while this litigation
proceeds.

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For the many reasons above, we remand with instructions to
the district court to enter as swiftly as possible a preliminary
injunction granting the following relief:
•

Part 16: House Bill 589’s elimination of Same-Day Voter
Registration,

previously

codified

at

G.S.

163-82.6A,

is

enjoined, with the provisions in effect prior to House Bill
589’s enactment in full force pending the conclusion of a
full hearing on the merits;
•

Part

49:

House

Bill

589’s

elimination

of

Voting

in

Incorrect Precinct, previously codified at G.S. 163-55, is
enjoined, with the provisions in effect prior to House Bill
589’s enactment in full force pending the conclusion of a
full hearing on the merits.
REVERSED IN PART, AFFIRMED IN PART, AND REMANDED
WITH INSTRUCTIONS TO ENTER A PRELIMINARY INJUNCTION

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DIANA GRIBBON MOTZ, Circuit Judge, dissenting:
With great respect for my colleagues’ contrary views and
genuine regret that we cannot agree on the outcome of these
important cases, I dissent.
At the center of these cases are changes made by the North
Carolina

General

Assembly

to

the

State’s

election

laws.

Plaintiff-Appellants and the United States moved the district
court to grant a preliminary injunction prohibiting the State of
North

Carolina

considering

from

the

enforcing

evidence

many

offered

of

the

at

a

new

laws.

week-long

After
hearing

(including the testimony of twelve witnesses and thousands of
pages of written material) and the extensive written and oral
legal arguments, the district court denied the motions.

The

court explained its reasoning in a 125-page opinion and order.
Three sets of plaintiffs appealed; the United States did not.
The district court’s order is now before us, on interlocutory
appeal, less than five weeks before voters in North Carolina go
to the polls in a statewide general election.
Nothing in the record suggests that any dilatoriness by
either the parties or the court caused this unfortunate timing.
For,

to

give

the

important

issues

at

stake

here

their

due

required extensive preparation, including months of discovery by
the

parties,

court.

and

consideration

and

analysis

But the fact of the timing remains.
57

by

the

district

Appellants ask this

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court to reverse the district court’s denial of relief, and to
grant a preliminary injunction requiring the State to revert to
abandoned election procedures for which the State maintains it
has not, and is not, prepared.

For the reasons that follow, I

cannot agree that such extraordinary relief should issue.

I.
To

obtain

a

establish that:
he

is

likely

preliminary

preliminary

injunction,

a

plaintiff

(1) he is likely to succeed on the merits; (2)
to

suffer

relief;

(3)

irreparable
the

balance

harm
of

in

the

equities

absence
tips

in

favor; and (4) an injunction is in the public interest.
v.

Natural

must

Res.

Def.

Council,

555

U.S.

7,

20

of
his

Winter
(2008).

Critically, each of these four requirements must be satisfied.
Id.

Moreover, a plaintiff must make a “clear” showing both that

he is likely to suffer irreparable harm absent relief and he is
likely succeed on the merits at trial.

Id.; Real Truth About

Obama, Inc. v. Fed. Election Comm’n, 575 F.3d 342, 346 (4th Cir.
2009), vacated on other grounds, 559 U.S. 1089 (2010).
The

majority

unconstitutionally

emphasizes
depriving

North

that

Carolinians

opportunity to vote is an irreparable harm.
the contrary.

unlawfully
of

or
the

I do not contend to

But by the same token, the requested injunction

will require the State to halt the ongoing implementation of one
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of its duly enacted statutes -- a statute that, for now at
least, has not been rendered invalid.
recently

reminded

us,

irreparable injury.”

this

itself

As the Chief Justice

constitutes

“a

form

of

Maryland v. King, 133 S.Ct. 1, 3 (2012)

(Roberts, C.J., in chambers).
Moreover,

even

a

showing

of

irreparable

harm

does

not,

without more, entitle a plaintiff to a preliminary injunction.
While we once permitted the mere presence of “grave or serious
questions for litigation” to tip the balance in the movant’s
favor, Rum Creek Coal Sales, Inc. v. Caperton, 926 F.2d 353, 363
(4th Cir. 1991), we have since recognized that this approach is
in

“fatal

tension”

with

the

Supreme

Court’s

instruction

in

Winter that all four factors must be independently satisfied.
Real Truth, 575 F.3d at 346.

Accordingly, no matter how likely

the irreparable injury absent an injunction, a plaintiff can
obtain a preliminary injunction only if he demonstrates a clear
likelihood of success on the merits, and the balance of equities
favors him, and the injunction is in the public interest.
Such plaintiffs comprise a small class.

As the Supreme

Court explained in Winter, the grant of a preliminary injunction
is “an extraordinary remedy never awarded as of right.”

555

U.S. at 24; see also id. at 32 (noting that even issuance of a
permanent

injunction

after

trial

“is

a

matter

of

equitable

discretion; it does not follow from success on the merits as a
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matter

of

Filed: 10/01/2014

right.”).

In

a

Pg: 60 of 69

recent

case,

our

en

banc

court

similarly recognized that the grant of such a remedy involves
“the

exercise

of

a

very

far-reaching

power,

which

is

to

be

applied only in [the] limited circumstances which clearly demand
it.”

Centro Tepeyac v. Montgomery Cnty., 722 F.3d 184, 188 (4th

Cir.

2013)

(en

banc)

(internal

citation

district

court’s

and

quotation

marks

omitted).
Our

review

of

a

denial

of

“extraordinary remedy” is also highly deferential.

such

an

We review

the grant or denial of a preliminary injunction for “abuse of
discretion.”

Real

Truth,

575

F.3d

at

345-47.

Under

this

standard, we review the district court’s factual findings for
clear error.
2013).
district

Pashby v. Delia, 709 F.3d 307, 319 (4th Cir.

We review its “legal rulings de novo” but we review the
court’s

injunction

for

“ultimate

abuse

of

decision

to

discretion.”

issue

the

Gonzales

preliminary
v.

O

Centro

Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 428 (2006).
Thus, as the Third Circuit has explained, an appellate court
“use[s] a three-part standard to review a District Court’s grant
of a preliminary injunction:

we review the Court’s findings of

fact for clear error, its conclusions of law de novo, and the
ultimate decision to grant the preliminary injunction for abuse
of discretion.”

Miller v. Mitchell, 598 F.3d 139, 145 (3d Cir.

2010).
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While securing reversal of a denial of preliminary relief
is

an

uphill

battle

for

any

movant,

particularly steep challenge here.
to

election

cases,”

including

the

Appellants

face

a

For “considerations specific
risk

of

voter

confusion,

Purcell v. Gonzalez, 549 U.S. 1, 4-5 (2006), counsel extreme
caution when considering preliminary injunctive relief that will
alter electoral procedures. ∗

Because those risks increase “[a]s

an election draws closer,” id. at 5, so too must a court’s
caution.

Cf.

Riley

v.

Kennedy,

553

U.S.

406,

426

(2008)

(“[P]ractical considerations sometimes require courts to allow
elections
Moreover,

to

proceed

election

despite

cases

like

pending
the

one

legal
at

hand,

challenges.”).
in

which

an

appellate court is asked to reverse a district court’s denial of
a

preliminary

injunction,

risk

creating

“conflicting

orders”

which “can themselves result in voter confusion and consequent

∗

Although the majority steadfastly asserts that the
requested injunction seeks only to maintain the status quo, the
provisions challenged by Appellants were enacted more than a
year ago and governed the statewide primary elections held on
May 6, 2014.
Appellants did not move for a preliminary
injunction until May 19, 2014, almost two weeks after the new
electoral procedures had been implemented in the primary.
Moreover, regardless of how one conceives of the status quo,
there is simply no way to characterize the relief requested by
Appellants as anything but extraordinary.
Appellants ask a
federal court to order state election officials to abandon their
electoral laws without first resolving the question of the
legality of those laws.

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incentive to remain away from the polls.”

Purcell, 549 U.S. at

4-5.

II.
Given

the

standard

of

review,

and

the

Supreme

Court’s

teaching on injunctive relief in the weeks before an election, I
cannot

join

the

majority

in

reversing

the

judgment

of

the

district court.
My

colleagues

argue

that

we

should

reverse

because,

in

assessing the likelihood of Appellants’ success on the merits,
the

district

incorrectly.

court

articulated

certain

legal

standards

Such a misstep, they assert, constitutes an abuse

of discretion and so requires reversal and grant of injunctive
relief.

Usually an error of law does constitute an abuse of

discretion and does require reversal.

But when reviewing the

denial of a preliminary injunction, an appellate court can find
an abuse of discretion requiring reversal only if the appellant
demonstrates that the corrected standard renders its likelihood
of success clear and establishes that the other requirements for
a preliminary injunction have been met.
In my view, Appellants have not done this here.
Appellants

have

neither

established

a

clear

That is,

likelihood

of

success on the merits, nor demonstrated, particularly at this
late juncture, that the balance of the equities and the public
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interest weigh in their favor.

Absent the required showing on

each of these elements, the district court’s “ultimate decision”
to

deny

preliminary

relief

was

not

an

abuse

of

discretion.

O Centro, 546 U.S. at 428.

III.
Giving due deference, as we must, to the district court’s
findings

of

fact,

district

court

Appellants

abused

its

have

not

discretion

established
in

likelihood of their success on the merits.

finding

that
no

the

clear

This is not to say

that I believe the district court’s legal analysis was without
error, only that Appellants have not shown that correcting the
errors would render clear their likelihood of success.
For

instance,

I

am

troubled

by

the

court’s

failure

to

consider the cumulative impact of the changes in North Carolina
voting

law.

Specifically,

the

district

court

found

that

prohibiting the counting of out-of-precinct provisional ballots
would not burden minority voters because early voting provides
“ample

opportunity”

for

individuals

“who

precinct” to otherwise cast their ballot.

would

vote

out-of-

North Carolina State

Conference of Branches of the NAACP v. McCrory, 997 F. Supp. 2d
322, 367 (M.D.N.C. 2014).

That finding rests on the assumption

that eliminating a week of early voting still leaves minority
voters

with

“ample

opportunity.”
63

But

the

district

court

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discussed plaintiffs’ challenges to these two provisions without
acknowledging that the burden imposed by one restriction could
reinforce the burden imposed by others.
with id. at 370-75.
same-day

Similarly, the district court discussed

registration,

eliminating,

in

Compare id. at 366-68

one

id.
fell

at

46,

swoop,

without

preferred

recognizing

that

methods

both

of

registration and ballot casting has a more profound impact on
the

opportunity

other.
(“When

to

vote

than

simply

eliminating

one

or

the

Cf. Pisano v. Strach, 743 F.3d 927, 933 (4th Cir. 2014)
deciding

whether

a

state’s

filing

deadline

is

unconstitutionally burdensome, we evaluate the combined effect
of the state’s ballot-access regulations.” (emphasis added)).
At this stage, however, I cannot conclude that correcting
these, or similar, errors requires the holding that Appellants
are

clearly

court’s

likely

factual

to

succeed

findings

on

about

the
early

merits.

The

voting

and

district
same-day

registration suggest Appellants’ evidence simply did not sway
the court.
that

The court rejected as unpersuasive evidence offered

constricting

the

early

voting

period

assertedly

would

create long lines at the polls, McCrory, 997 F. Supp. 2d at 372,
affect

black

voters

disproportionately,

id.,

Sunday voting hours in the upcoming election.
too with same-day registration:
Appellants’

assertions

that

cut

down

Id. at 373.

on
So

the district court rejected

eliminating
64

or

same-day

registration

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would cause registration rates among black North Carolinians to
drop.

Id.

at

350.

Whatever

the

wisdom

of

these

factual

findings, they are not clearly erroneous.
In short, had I been overseeing this case in the district
court,

I

might

have

reached

a

different

Plaintiffs’ chances of success on the merits.

conclusion

about

But neither I nor

my colleagues oversaw this case and its 11,000-page record.

Nor

did we consider the evidence and arguments produced in five days
of hearings.

And though I share some of my colleagues’ concerns

about the district court’s legal analysis, those concerns do not
establish

that

plaintiffs

have

shown

a

clear

likelihood

of

success on the merits.

IV.
Further,
equities

Appellants

and

preliminary

the

have

public

injunction

not

shown

interest

they

that

support

seek.

Any

the

balance

issuance

such

of

showing

of
the

would

require overcoming the burden the State faces in complying with
ordered

changes

to

its

election

procedures

and

the

risk

of

confusing voters with dueling opinions so close to the election.
Election
deadlines

day

loom

is

even

less

than

closer.

five

In

weeks

fact,

for

away,
the

and

other

many

North

Carolina voters that have already submitted absentee ballots,
this

election

is

already

underway.
65

The

majority’s

grant

of

Appeal: 14-1845

Doc: 80

injunctive

Filed: 10/01/2014

relief

requires

Pg: 66 of 69

boards

of

elections

in

North

Carolina’s 100 counties to offer same-day registration during
the early voting period and count out-of-precinct provisional
ballots -- practices for which neither the State nor the local
boards have prepared.

See, e.g., Poucher Decl. 4, ECF No. 146-1

(“To have to revert back to conducting an election under the
prior statute would be confusing to [election] officials, and
again unfunded.”).
The majority suggests that the State exaggerates the burden
imposed on it, and that resurrecting past practices is a simple
matter.

Perhaps.

But the logistics of running an election seem

to me far more complex than my colleagues suggest.

Poll workers

have

been

equipped

the

most

been

reliance
statewide

trained
on

the

and

polling

procedures

primary.

An

procedures a nullity.

centers

that

injunction

have

governed
will

render

some

in

recent

of

those

Additionally, it is undisputed that the

same-day registration system used in elections under the prior
law

was

embedded

administered
within

a

electronically

comprehensive

through

computer

an

application

program.

That

application was disengaged after the enactment of SL 2013-381,
and is now out of date.

Reliable restoration of the application

in time for the general election is apparently impossible.
this

reason,

the

injunction

will

require

the

For

same-day

registration process to be manually administered by each county
66

Appeal: 14-1845

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Filed: 10/01/2014

Pg: 67 of 69

board, risking delays, errors, and general confusion.
while

reverting

order,

it

to

will

the

old

require

procedure

substantial

may

make

effort

for

to

a

Thus,
simple

effectuate

in

practice.
In addition to the burden it places on the State, an aboutface

at

this

juncture

runs

the

very

real

risk

of

confusing

voters who will receive incorrect and conflicting information
about when and how they can register and cast their ballots.
Under

North

Carolina

law,

ensuring

voters

have

the

correct

information in a timely fashion is not just good policy, it is a
statutory mandate.

See N.C. Gen. Stat. § 163-278.69 (a).

The

State is required to send to every household a Judicial Voter
Guide “no more than 28 days nor fewer than seven days before”
early voting begins.

Id.

We were told at oral argument that

this Guide, and a timeline of important dates, have already been
printed and sent to every household in the State, and have been
made available on the State Board of Elections’ website.
2014

General

Election

Judicial

Voter

See

Guide,

http://www.ncsbe.gov/ncsbe/Portals/0/FilesT/JudicialVoter
Guide2014.pdf (last visited Sept. 30, 2014).
order renders this information inaccurate.

The majority’s

For instance, the

current Guide lists a registration cut-off date of October 10
and

instructs

precinct.

Id.

voters

that

they

must

vote

in

their

proper

Moreover, the widespread dissemination of flat67

Appeal: 14-1845

out

Doc: 80

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contradictory

information

Pg: 68 of 69

undermines

confidence

in

the

at

the

State’s ability to carry out orderly elections.
Recognizing

the

importance

of

avoiding

confusion

polls, both we and the Supreme Court have deferred to a state’s
own assessment of when such confusion is likely to occur.

See,

e.g., U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 834
(1995); Munro v. Socialist Workers Party, 479 U.S. 189, 195-96
(1986); Pisano, 743 F.3d at 937.
State’s

concerns

about

The majority downplays the

confusion

here,

effect of any confusion will be minimal.

suggesting

that

the

My colleagues see the

injunction as a “safety net” that will ensure that any confused
voters at least have the opportunity to cast a ballot.

But this

assumes that those who may be confused by “conflicting orders”
will resist the “consequent incentive to remain away from the
polls.”
not

only

Purcell, 549 U.S. at 5.
uncertainty

about

the

For “conflicting orders” cause
status

of

particular

voting

procedures, but also general frustration with and distrust of an
election process changed on the eve of the election itself.
In sum, to obtain a preliminary injunction, Appellants must
establish

that

the

balance

weigh in their favor.

of

hardships

and

public

interest

I cannot conclude that they have done so

here.

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Pg: 69 of 69

V.
Appellants

will

have

the

opportunity

at

trial

to

demonstrate precisely how SL 2013-381 burdens voters in North
Carolina.
provisions

And
of

opportunities,

if
that

I

am

Appellants
law

work

confident

can

show

in

tandem

that

the

consider the totality of that burden.

that

the

to

multiple

limit

district

voting

court

will

A law that adopts a

“death by a thousand cuts” approach to voting rights is no more
valid

than

a

law

that

constricts

one

process in a particularly onerous manner.

aspect

of

the

voting

But at this juncture,

in my view, Plaintiffs have not met the high bar necessary to
obtain

the

relief

they

seek.

dissent.

69

Accordingly,

I

respectfully