NORTH CAROLINA STATE CONFERENCE OF THE NAACP et al v. MCCRORY et al

Filing 184

MEMORANDUM OPINION AND ORDER signed by JUDGE THOMAS D. SCHROEDER on 08/08/2014; that Defendants' motions for judgment on the pleadings (Doc. 94 in case 1:13CV861, Doc. 106 in case 1:13CV658, and Doc. 110 in case 1:13CV660) are DENIED< /b>. FURTHER that Plaintiffs' and Intervenors' motions for a preliminary injunction (Docs. 96 & 98 in case 1:13CV861; Docs. 108 & 110 in case 1:13CV658; and Docs. 112 & 114 in case 1:13CV660) are DENIED. FURTHE R that Plaintiffs' motions to strike Defendants' experts (Docs. 146 , 148 , & 150 in case 1:13CV861; Docs. 156 , 158 , & 160 in case 1:13CV658; and Docs. 157 , 159 , & 161 in case 1:13CV660) are DENIED AS MOOT. Associated Cases: 1:13-cv-00658-TDS-JEP, 1:13-cv-00660-TDS-JEP, 1:13-cv-00861-TDS-JEP (Garland, Leah)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
NORTH CAROLINA STATE CONFERENCE,
)
OF THE NAACP, EMMANUEL BAPTIST
)
CHURCH, NEW OXLEY HILL BAPTIST
)
CHURCH, BETHEL A. BAPTIST CHURCH, )
COVENANT PRESBYTERIAN CHURCH,
)
CLINTON TABERNACLE AME ZION CHURCH,)
BARBEE’S CHAPEL MISSIONARY BAPTIST )
CHURCH, INC., ROSANELL EATON,
)
ARMENTA EATON, CAROLYN COLEMAN,
)
BAHEEYAH MADANY, JOCELYN FERGUSON- )
KELLY, FAITH JACKSON, MARY PERRY, )
and MARIA TERESA UNGER PALMER,
)
)
Plaintiffs,
)
)
v.
)
)
PATRICK LLOYD MCCRORY, in his
)
Official capacity as Governor of
)
North Carolina, KIM WESTBROOK
)
STRACH, in her official capacity
)
As Executive Director of the
)
North Carolina State Board of
)
Elections, RHONDA K. AMOROSO,
)
in her official capacity as
)
Secretary of the North Carolina
)
State Board of Elections, JOSHUA
)
D. MALCOLM, in his official
)
Capacity as a member of the North )
Carolina State Board of Elections, )
PAUL J. FOLEY, in his official
)
Capacity as a member of the North )
Carolina State Board of Elections )
and MAJA KRICKER, in her official )
capacity as a member of the North )
Carolina State Board of Elections, )
)
Defendants.
)
__________________________________ )
LEAGUE OF WOMEN VOTERS OF NORTH
CAROLINA; A. PHILIP RANDOLPH
INSTITUTE; UNIFOUR ONESTOP
COLLABOARATIVE; COMMON CAUSE NORTH

)
)
)
)

1:13CV658

CAROLINA; GOLDIE WELLS; KAY
BRANDON; OCTAVIA RAINEY; SARA
STOHLER; and HUGH STOHLER,

)
)
)
)
Plaintiffs,
)
)
and
)
)
LOUIS M. DUKE; ASGOD BARRANTES;
)
JOSUE E. BERDUO; CHARLES M. GRAY; )
NANCY J. LUND; BRIAN M. MILLER;
)
BECKY HURLEY MOCK; MARY-WREN
)
RITCHIE, LYNNE M. WALTER, and
)
EBONY N. WEST,
)
)
Plaintiff-Intervenors,
)
)
v.
)
)
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; and PATRICK L.
)
MCCRORY, in his official capacity )
as the Governor of the State of
)
North Carolina,
)
)
Defendants.
)
__________________________________ )
UNITED STATES OF AMERICA,

)
)
)
)
)
)

Plaintiff,
v.

2

1:13CV660

1:13CV861

THE STATE OF NORTH CAROLINA,
THE NORTH CAROLINA STATE BOARD
OF ELECTIONS; and KIM W. STRACH,
in her official capacity as
Executive Director of the North
Carolina State Board of Elections,

)
)
)
)
)
)
)
Defendants.
)
__________________________________ )
MEMORANDUM OPINION AND ORDER
THOMAS D. SCHROEDER, District Judge.
In

these

injunction

related

pursuant

cases,

to

Plaintiffs

Federal

Rule

of

seek

a

Civil

preliminary

Procedure

65

barring Defendants from implementing various provisions of North
Carolina

Session

Law

election-reform law.1

2013-381

(“SL

2013-381”),

an

omnibus

(Docs. 96 & 98 in case 1:13CV861; Docs.

108 & 110 in case 1:13CV658; Docs. 112 & 114 in case 1:13CV660.)2
Defendants

move

for

judgment

on

the

Federal Rule of Civil Procedure 12(c).

pleadings

pursuant

(Doc. 94.)

the merits is currently scheduled for July 2015.

to

A trial on
(Doc. 30 at

4.)
Plaintiffs

include

the

United

States

of

America

(the

1

Throughout the proceedings the parties have referred to the
challenged law as “House Bill 589,” its original designation by the
North Carolina General Assembly.
Because it is a duly-enacted law
passed by both chambers of the General Assembly and signed by the
Governor, the court will refer to the final product as Session Law
2013-381.
Prior to passage, the bill will be referred to as HB 589.
2

Because of the duplicative nature of the filings in these three
cases, for the remainder of this Memorandum Opinion the court will
refer only to the record in case 1:13CV861 except where necessary to
distinguish the cases.

3

“United States”) in case 1:13CV861, the North Carolina State
Conference of the NAACP and several organizations and individual
plaintiffs (the “NAACP Plaintiffs”) in case 1:13CV658, and the
League of Women Voters of

North Carolina along with several

organizations and individuals (the “League Plaintiffs”) in case
1:13CV660.

Additionally, the court allowed a group of young

voters

others

and

1:13CV660.
Plaintiffs

(the

“Intervenors”)

to

(Doc. 62 in case 1:13CV660.)
raise

Twenty-Sixth

claims

Amendments

under
to

the

the

intervene

case

Considered together,

Fourteenth,

United

in

States

Fifteenth,

and

Constitution

as

well as Section 2 of the Voting Rights Act of 1965 (“VRA”), 42
U.S.C. § 1973.

(Doc. 1 in case 1:13CV861; Doc. 52 in case

1:13CV658; Docs. 1 & 63 in case 1:13CV660.)

The United States

also moves for the appointment of federal observers to monitor
future elections in North Carolina pursuant to Section 3(a) of
the VRA, 42 U.S.C. § 1973a(a).

(Doc. 97 at 75-77.)

Finally,

Plaintiffs move to exclude and strike the testimony of three of
Defendants’ expert witnesses.
Defendants

are

the

(Docs. 146, 148, & 150.)

State

of

North

Carolina,

Governor

Patrick L. McCrory, the State Board of Elections (“SBOE”), and
several

State

officials

They contend that

acting

in

their

official

Plaintiffs have not stated

any

capacities.
claims

for

which relief can be granted under either the Constitution or the

4

VRA

and,

in

any

event,

preliminary relief.

have

not

established

entitlement

to

(Docs. 94, 95 & 126.)

The court held a four-day evidentiary hearing and argument
beginning July 7, 2014.

The record is extensive.

Throughout

the proceedings, there was much debate over the policy merits of
SL

2013-381

as

an

election

law

and

the

popularity

desirability of various voting mechanisms it affects.

and

It is

important to note that, while these have evoked strongly-held
views, this is not the forum for resolving that aspect of the
parties’

dispute;

such

considerations

legislative bodies to address.

are

matters

for

The jurisdiction of this court

is limited to addressing the legal challenges raised based on
the evidence presented to the court.
After
Defendants’

careful
motion

consideration,
for

denied in its entirety.

judgment

the
on

court

the

concludes

pleadings

that

should

be

Plaintiffs’ complaints state plausible

claims upon which relief can be granted and should be permitted
to proceed in the litigation.

However, a preliminary injunction

is an extraordinary remedy to be granted in this circuit only
upon a “clear showing” of entitlement.

After thorough review of

the record, the court finds that as to two challenged provisions
of SL 2013-381, Plaintiffs have not made a clear showing they
are likely to succeed on the merits of the underlying legal
claims.

As to the remaining provisions, the court finds that
5

even assuming Plaintiffs are likely to succeed on the merits,
they have not demonstrated they are likely to suffer irreparable
harm - a necessary prerequisite for preliminary relief - before
trial

in

motions

the
for

absence

of

preliminary

an

injunction.

injunction

and

Consequently,
the

request for federal observers will be denied.

United

the

States’

This resolution

renders the motions to exclude expert testimony moot.
I.

BACKGROUND
A.

Legislative History

The North Carolina General Assembly began consideration of
a voter identification (“voter ID”) requirement in March 2013.
On

March

12,

the

House

Committee

on

Elections,

chaired

by

Republican Representative David R. Lewis, held public hearings
(See J.A. at 2388-92.)3

on voter ID.

Over 70 citizens from a

wide variety of organizations spoke before the committee.

(Id.)

The next day, the committee met and considered the testimony of
five individuals representing a wide variety of organizations,
including

the

Foundation.

Brennan

Center

for

Justice

(See J.A. at 2393-2416.)

and

the

Heritage

One of the speakers was

Allison Riggs, counsel of record for the League Plaintiffs in
case 1:13CV660, who appeared on behalf of the Southern Coalition
3

Citations to “J.A.” refer to the joint appendix submitted by
Plaintiffs along with their briefs in support of the motions for
preliminary injunction. (Docs. 99 through 111 & Doc. 154, along with
their attachments.)

6

for Social Justice.

(J.A. at 2394.)

On April 3, the committee

heard from Ion Sancho, the Supervisor of Elections for Leon
County, Florida, who testified about Florida’s experience when
it reduced early-voting days in advance of the 2012 general
election.

(J.A. at 2418, 2420-23.)

The initial version of HB 589 was introduced in the House
of Representatives on April 4.

(J.A. at 2101-12.)

The bill

dealt almost exclusively with the implementation of a voter ID
requirement

beginning

in

2016

in

Information Verification Act.”4
April

8,

Committee

it
on

passed

“first

Elections.5

portions

titled

the

“Voter

(J.A. at 2101-06, 2112.)

reading”
(J.A.

at

and

was

2354.)

referred
The

to

On
the

committee

subsequently held another public hearing on April 10, whereupon
over 70 citizens from across the political spectrum had the
opportunity to speak.

(J.A. at 2424-28.)

It further debated

the bill and added amendments at a meeting held on April 17.
(J.A. at 2432-43.)

The bill was also referred to the Committees

on Finance and Appropriations.

(J.A. at 2354, 2444-45.)

4

The remainder dealt with the procedure for obtaining and voting mailin absentee ballots. (J.A. at 2106-11.)
5

House Rule 41(a) states: “Every bill shall receive three readings in
the House prior to its passage.
The first reading and reference to
standing committee of a House bill shall occur on the next legislative
day following its introduction.”
H.R. 54, 2013 Gen. Assemb., Reg.
Sess. (N.C. 2013), available at http://www.ncleg.net/Sessions/2013/
Bills/House/PDF/H54v3.pdf.

7

HB

589

advanced,

as

amended,

from

the

various

House

committees, and was debated on the House floor on April 24,
2013.
adopted

(J.A. at 2354, 2446-51.)
and

six

others

After three amendments were

rejected,

the

reading” on a roll-call vote of 80-36.6

bill

passed

“second

(J.A. at 2354, 2450.)

The bill subsequently passed “third reading” immediately, on a
vote of 81-36, and was passed by the House.

(J.A. at 2450-51.)

Five House Democrats joined all present Republicans in voting
for the final voter ID bill (J.A. at 2366, 2573, 2581, 2592),
but none of the black members of the House supported it (J.A. at
2655).

Representative Rick Glazier, who strongly opposed the

bill, testified at the preliminary injunction hearing in this
case that he felt that “for a large bill,” HB 589 received up to
this point “the best process possible” in the House, one he
characterized as “excellent.”

(Doc. 165 at 56-57.)

HB 589 was received in the North Carolina Senate the next
day, passed first reading, and was assigned to the Senate Rules
Committee.

(J.A. at 2354.)

action on the bill.

The committee took no immediate

The parties do not dispute that the Senate

believed at this stage that HB 589 would have to be submitted to
the

United

States

Department

of

6

Justice

(“DOJ”)

for

“pre-

House Rule 41(b) states: “No bill shall be read more than once on the
same day without the concurrence of two-thirds of the members present
and voting . . . .” H.R. 54.

8

clearance” under Section 5 of the VRA, 42 U.S.C. § 1973c(a),
because

many

North

Carolina

counties

jurisdictions” under that Section.

were

“covered

However, at that time the

United States Supreme Court was considering a challenge to the
DOJ’s ability to enforce Section 5.

On June 25, the Supreme

Court issued its decision in Shelby County v. Holder, 133 S. Ct.
2612 (2013), declaring the formula used to determine the Section
5

covered

jurisdictions,

unconstitutional.

The

Republican

of

Chairman

42

next
the

U.S.C.
day,

Rules

§ 1973b(b),

Senator

Committee,

“So, now we can go with the full bill.”

Thomas
publicly

to

be

Apodaca,
stated,

(J.A. at 1831.)

contents of the “full bill” were not disclosed at the time.

The
A

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

(See J.A. at 2452.)

The night before the Rules Committee meeting, the new bill,
now 57 pages in length, was posted for the members on the Rules
Committee website.7

(J.A. at 183-84 (declaration of Sen. Josh

Stein); Doc. 164 at 111-12 (testimony of Sen. Dan Blue); J.A. at
2129-85.)

In addition to the voter ID provisions,8 HB 589 now

7

A version of HB 589 appears to have been distributed to members of
the Rules Committee who were present on July 18, 2013. (Doc. 134-4 at
3.) It is not clear whether this version differed from that posted on
the website on July 22.
8

The voter ID provisions contained significant changes. For example,
the list of acceptable identifications no longer included those issued
by a state university or community college. (Compare J.A. at 2102-03

9

included

many

additional

provisions,

including

the

following

that are being challenged in this litigation: (1) the reduction
of the period for so-called “early voting”9 from 17 to ten days;
(2)

the

elimination

of

same-day

registration

(“SDR”),

which

permitted voters to register and then vote at the same time
during

the

counting
correct

period;

(3)

provisional

ballots

cast

of

voting

ballots);
voter

early-voting

(4)

precinct
the

challenges;

on

expansion
(5)

the

the

Election
of

outside
Day

allowable

elimination

prohibition

of

of

a

on

the

voter’s

(“out-of-precinct”
poll

observers

and

the

discretion

of

county boards of election (“CBOEs”) to keep the polls open an
additional

hour

on

Election

Day

in

“extraordinary

circumstances”; and (6) the elimination of “pre-registration” of
16- and 17-year-olds who will not be 18 by the next general
election.10

The bill proposed that the voter ID requirement go

(original bill filed in the House on April 4, 2013), with J.A. at 2130
(version approved by the Senate Rules Committee on July 23, 2013).)
9

Early voting is a term used to describe in-person absentee voting at
designated locations before Election Day.
10

Apart from the voter ID provisions, which were new, the bill largely
purported to repeal, amend, or update existing law. Other amendments
included: (1) making it illegal to compensate persons collecting voter
registrations based on the number of forms submitted (Part 14); (2)
reducing the number of signatures required to become a candidate in a
party primary (Part 22); (3) deleting obsolete provisions about the
2000 census (Part 27) (4) changing the order of candidates appearing
on the ballot (Part 31); (5) eliminating straight-ticket voting (Part
32); (6) moving the date of the North Carolina presidential primary
earlier in the year (Part 35); (7) eliminating taxpayer funding for
appellate judicial elections (Part 38); (8) allowing funeral homes to

10

into effect in 2016 but be implemented through a “soft rollout,”
whereby voters would be advised at the polls in 2014 and 2015 of
the law’s requirement that they will need a qualifying picture
ID to vote beginning in 2016.
At

the

committee

meeting

on

July

23,

Senator

Apodaca

allowed members of the public in attendance to speak for two
minutes.11

(See Doc. 134-4 at 45-60.)

Speakers included the

League Plaintiffs’ counsel, Riggs, as well as Jamie Phillips,
who

represented

NAACP.

(Id.

at

the

North

45-47,

Carolina

57-58.)

State

Conference

Although

the

of

majority

the
of

comments addressed the voter ID requirement, citizens also spoke
in opposition to the other challenged provisions, including the
elimination of SDR and pre-registration and reduction of early
voting.

Several opponents characterized the bill as an effort

at voter suppression.

(See, e.g., id. at 45 (Riggs: “voter

suppression at its very worst”); id. at 57 (Phillips: “The fewer
young people and minorities who vote, the better it seems in
your minds.

We get it.

No one is being fooled.”).)

After

participate in canceling voter registrations of deceased persons (Part
39); and (9) requiring provisional ballots to be marked as such for
later identification (Part 52). The bill also proposed mandating that
several matters be referred for further study, including requiring the
Joint Legislative Oversight Committee to examine whether to maintain
the State’s current runoff system in party primaries. (Part 28.)
11

There is no indication the two-minute time allotment was a deviation
from normal rules.

11

debate, the bill passed the committee and proceeded to the floor
for second reading.

(Id. at 80.)

The following afternoon, on July 24, HB 589 was introduced
on the floor of the full Senate.
hours

of

debate

after

the

(Id. at 84.)

bill’s

second

During several

reading,

Democratic

Senators introduced and discussed several proposed amendments.
Most significantly, Senator Josh Stein introduced an amendment
to require the CBOEs to offer the same number of aggregate hours
of early voting as were offered in the last comparable election
(whether presidential or off-year).

(Id. at 125-26.)

This

could be accomplished, he proposed, by CBOEs offering more hours
at present sites, or by opening more sites.

(Id. at 130-31.)

Senator Stein argued that the amendment would reduce, but not
eliminate, the impact the reduction of early-voting days would
have on all voters, including African-Americans.

(Id. at 111.)

Senator Robert Rucho, the Republican sponsor of HB 589, asked
the Senate to support Senator Stein’s amendment (id. at 126),
and it passed by a vote of 47 to 1 (id. at 131).
also

exchanged

argument

on

many

of

the

other

The Senators
challenged

provisions, including voter ID, SDR, pre-registration, and the
increase
provisions

in

allowable

not

at

poll

issue

observers,

here

(including

as

well

the

as

several

elimination

of

straight-ticket voting and reduction of various campaign-finance
restrictions).

(See generally id. at 148-223.)
12

At the close of

debate on July 24, Senator Apodaca objected to a third reading,
effectively mandating that the debate of the bill be carried
over into the next day.

(Id. at 224.)

On July 25, the Senate began its session with the third
reading of amended HB 589.
offered

a

bipartisan

(Id. at 229.)

amendment,

which

Senator Rucho then

passed

46

to

0;

it

clarified the aggregate-hours amendment and permitted a county
to obtain a waiver from the aggregate-hours requirement upon
unanimous approval of both the CBOE and the SBOE.
33, 236, 241.)

(Id. at 232-

Proponents and opponents of the bill debated

both its provisions and the merits of various amendments over
the

next

four

hours,

and

the

Senate

accepted

an

amendment

dealing with electioneering from Senator Dan Blue (Democrat).
(Id. at 307-08.)

Several Senators characterized the bill as

voter suppression of minorities.

(E.g., id. at 251-60 (Sen.

Stein), 282-93 (Sen. Blue), & 293-99 (Sen. Robinson).)

At the

close of debate fourteen amendments had been considered, and the
Senate voted in favor of HB 589 along party lines, sending the
bill back to the House for concurrence, as amended.
325.)

(Id. at

Senator Martin Nesbitt (Democrat), although opposing the

bill strongly, noted that “we’ve had a good and thorough debate
on this bill over two days.”

(Id. at 315.)

With the end of the legislative session approaching, the
House received the Senate’s version of HB 589 that night.
13

(J.A.

at 2355.)

At the beginning of a two-hour floor session starting

at 7:45 p.m., Representative Henry M. Michaux, Jr. (Democrat)
moved that the House form a Committee of the Whole12 to consider
the bill.

(J.A. at 2507-08.)

Representative Tim Moore opposed

the motion on the grounds that “it is simply a waste of time”
because such a committee “is the same as the full House,” which
the bill was properly before at the moment.
The motion failed by a vote of 41 to 69.

(J.A. at 2509.)

(J.A. at 2510.)

Two amendments offered by opponents (Sen. Blue’s amendment
of

the

date

for

electioneering;

Sen.

Rucho’s

and

Stein’s

amendment altering several items, including the types of ID that
can be presented for voting, and requiring the same number of
hours of early voting) were adopted 109 to 0.
15.)

(J.A. at 2511-

The provisions of the new full bill were then reviewed.

(J.A. at 2516-31.)

Each member of the House Democratic caucus

present – including four of the five members who voted for the
House

version

in

April

opposition to the bill.

–

were

granted

time

to

speak

in

(J.A. at 2571-73, 2580-81, 2581-83,

2592-93; Doc. 165 at 64-65 (testimony of Rep. Glazier).)

Among

other things, opponents characterized the measure variously as
voter

suppression,

partisan,

and

12

disproportionately

affecting

A Committee of the Whole is a legislative device where the whole
membership of a legislative house sits as a committee and operates
under informal rules.
Webster’s Third New International Dictionary
458 (1986).

14

African-Americans, young voters, and the elderly.
at 2561 (“[O]ur anger tonight is palpable.
is

a

political

obviously
(“voter

call

to

politically

arms.”);

partisan

suppression”).

2563

Passage of this bill

(“the

most

bill

I’ve

the

On

(E.g., J.A.

ever

Republican

pointedly,

seen”);

2568

side,

only

Representative Lewis, the bill’s primary House sponsor, spoke in
support of the amended bill.
out,

among

other

things,

(J.A. at 2620-24.)

that

the

bill

does

He pointed

not

bar

Sunday

voting, does not reduce overall hours of early voting, provides
for

free

photo

ID,

requirements

for

House

–

voted

and,

absentee

again

in

his

opinion,

voting.

along

party

lines

bill

was

ratified

Governor McCrory on July 29.

the

–

the

to

concur

in

the

(J.A. at 2369.)

next

day

and

(J.A. at 2355.)

signed SL 2013-381 into law on August 12, 2013.
B.

the

Subsequently,

(Id.)

Senate’s version of HB 589 at 10:39 p.m.
The

strengthens

presented

to

The governor

(Id.)

Procedural History

Almost immediately after SL 2013-381 became law, two of the
instant cases were filed in this court.
filed

a

complaint

challenging

the

The NAACP Plaintiffs

voter

ID

requirement,

elimination of SDR, reduction of early-voting days, prohibition
on

counting

out-of-precinct

provisional

ballots,

and

the

expansion of poll observers and ballot challengers under Section
2 of the VRA and the Fourteenth and Fifteenth Amendments.
15

(Doc.

1 in case 1:13CV658 ¶¶ 56-80, 82-119.)
the

NAACP

Plaintiffs

registration.
League

of

pre-

(Doc. 52 ¶¶ 112, 130-32 in case 1:13CV658.)

The

Plaintiffs

also

challenge

In an amended complaint,

initiated

their

the

elimination

case

on

the

same

day,

challenging the elimination of SDR, prohibition on counting outof-precinct ballots, elimination of the discretion of CBOEs to
extend poll hours one hour on Election Day in “extraordinary
circumstances,” and the reduction in early-voting days pursuant
to both Section 2 and the Fourteenth Amendment.
1:13CV660 at 27 (prayer for relief).)
the

United

States

filed

its

complaint

(Doc. 1 in case

On September 30, 2013,
challenging

the

early

voting, SDR, out-of-precinct voting, and voter ID provisions of
SL 2013-381 under Section 2.13

(Doc. 1 in case 1:13CV861.)

The

Magistrate Judge consolidated the three cases for the purposes
of scheduling and discovery on December 13, 2013.

(Doc. 30.)

On January 27, 2014, the court permitted a group of young
voters and others to intervene as plaintiffs in case 1:13CV660
pursuant to Federal Rule of Civil Procedure 24(b).
case

1:13CV660.)

elimination

of

Intervenors’

pre-registration,

13

complaint
reduction

(Doc. 62 in

contends
in

early

that

the

voting,

The various complaints refer at times to Hispanics in addition to
African-Americans and young voters, but the motions for a preliminary
injunction do not mention Hispanic voters.
This Memorandum Opinion
therefore addresses only the claims with respect to black and young
voters.

16

repeal of SDR, prohibition on counting out-of-precinct ballots,
elimination of CBOE discretion to keep the polls open an extra
hour

on

Election

Day,

and

implementation

of

a

voter

ID

requirement violate the Fourteenth and Twenty-Sixth Amendments.
(Doc. 63 in case 1:13CV660.)
Pursuant

to

the

scheduling

order

(Doc.

91),

Plaintiffs

filed motions for a preliminary injunction on May 19, 2014.14
Combined, Plaintiffs seek to preliminarily enjoin SL 2013-381’s
provisions regarding poll observers, challenges, and hours; its
elimination of SDR, out-of-precinct provisional voting, and preregistration;

its

cutback

of

early

rollout” of the voter ID requirement.

voting;

and

its

“soft

The United States seeks

to preliminarily enjoin only the early voting, SDR, and out-ofprecinct voting sections of the law.
day,

Defendants

pleadings,

filed

contending

viable legal claims.

their
that

motion

Plaintiffs

(Docs. 94 & 95.)

(Doc. 97.)
for
have

On the same

judgment
failed

on
to

the
state

The parties responded to

the various motions on June 18 (Docs. 126, 129, & 135), and
replies

were

filed

on

June

30

14

(Docs.

152,

153,

&

155).

The parties have also been engaged in various discovery disputes,
some of which have yet to be resolved. Most significantly, Plaintiffs
are
currently
seeking
various
legislative
communications
that
Defendants and the legislators maintain are privileged.
(See Doc.
93.)
This court has affirmed the Magistrate Judge’s rejection of
Defendants’ contention that the legislative privilege is absolute and
returned the matter to the Magistrate Judge for further proceedings,
which are ongoing.

17

Plaintiffs also moved to exclude three of Defendants’ experts.
(Docs. 146, 148, & 150.)
During

a

four-day

evidentiary

hearing

on

the

pending

motions beginning July 7, 2014, Plaintiffs presented nine live
lay witnesses, two live expert witnesses, and one witness by
video deposition, while Defendants rested on the record, which
contains

many

more

depositions

and

extensive

expert

reports.

The court then allowed a full day of legal argument, including
argument by counsel representing Judicial Watch, Inc., Allied
Educational Foundation, and Christina Gallegos-Merrill, whom the
court permitted to appear as amici curiae.

(Doc. 136.)

Post-

hearing, the court allowed the parties to file hundreds of pages
of deposition designations as well as supplemental briefing on
the

issue

of

standing

and

exclusion

of

Defendants’

experts,

bringing the total paper record in these cases to over 11,000
pages.

The motions are now ripe for decision.

Ordinarily,
before

turning

the

would

motions

to

court

based

address
on

the

a

dismissal

evidence.

motion

However,

because the court has determined that Plaintiffs have stated
claims on their pleadings and the legal claims must also be
analyzed

in

the

context

of

the

evidence

presented

on

the

injunction motions, it makes sense to address the motions for
preliminary

relief

12(c) motion.

first

before

addressing

Defendants’

Rule

Before reaching these topics, though, there is a
18

threshold issue of Intervenors’ standing to challenge SL 2013381’s elimination of pre-registration, to which the court now
turns.
II.

STANDING OF INTERVENORS
Intervenors are the only party challenging the repeal of

pre-registration

for

Amendment grounds.15

16-

and

17-year-olds

on

Twenty-Sixth

Because none of them is under the age of

18, their standing to assert that claim is not readily apparent.
Although Defendants

did not raise the question and no party

addressed

the

it

in

original

briefing,

standing

is

a

jurisdictional prerequisite, and the court has an independent
obligation to ensure it.

Fed. R. Civ. P. 12(h)(3); Goldsmith v.

Mayor & City Council of Baltimore, 845 F.2d 61, 64 (4th Cir.
1988).

At

the

preliminary

injunction

hearing,

the

court

directed Intervenors to brief their standing to challenge the
elimination

of

pre-registration.16

Intervenors

did

so

(Doc.

demonstrate

three

159), and Defendants have responded (Doc. 168).
To

establish

standing,

a

party

must

elements: (1) an “injury in fact,” (2) a “causal connection
15

The NAACP Plaintiffs’ challenge to the elimination of preregistration is made under the Fourteenth Amendment and Section 2,
claiming an injury to young minority voters, not young voters
generally. (Doc. 52 ¶ 93 in case 1:13CV658.)
16

Intervenors’ standing to challenge the reduction in early-voting
days, the elimination of SDR, and the elimination of out-of-precinct
voting is not in dispute because they have alleged that they are
personally and directly injured by those provisions.

19

between the injury and the conduct complained of,” and (3) a
likelihood that the injury would be redressed by a favorable
decision.
(1992).

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61
Plaintiffs sufficiently allege a causal connection and

a likelihood of redressability; at issue is whether Intervenors
have

suffered

elimination

an

of

“actual

or

imminent”

pre-registration,

“injury in fact.”

injury

creating

a

from

the

particularized

Id. at 560.

First, Intervenors contend that some of them are or will be
imminently injured because they can no longer register voters
through

the

pre-registration

(Doc. 159 at 3.)
registering

program

following

its

repeal.

Defendants dispute that harm to an interest in

voters

can

create

legally

cognizable

injury

and

further assert that such harm is not present here because preregistration – not registration – is at issue.

(Doc. 168 at 4.)

Preventing an individual from registering others to vote
has

been

purpose

recognized
of

Solutions

citizens

standing.
v.

association

as

In

Wamser,
dedicated

register

a

sufficient

Coalition

771
to

to

legally

F.2d

395

helping

vote

for

sued

Sensible

(8th

minority
the

injury

and

Cir.

of

the

Humane

1985),

and

Board

for

an

low-income
Election

Commissioners of St. Louis for refusing to allow their qualified
volunteers

to

serve

as

deputy

registration

officials.

The

Eighth Circuit held that the association had standing to sue on
20

behalf

of

its

Commissioners

members

injured

because

individual

the

Board

association

preventing them from registering new voters.”

of

Election

members

“by

Id. at 399.17

By

contrast, in People Organized for Welfare and Employment Rights
(P.O.W.E.R.)

v.

Thompson,

727

F.2d

167

(7th

Cir.

1984),

an

association dedicated to increasing political power of the poor
and unemployed sued to compel the State to allow city registrars
to conduct voter-registration drives in the waiting rooms of
State social services offices.

The Seventh Circuit found that

the association lacked standing:
P.O.W.E.R. in bringing this suit alleged only that its
goal of improving the lot of the poor and the
unemployed required for its fulfillment that the state
make it easier for them to register. This might be a
persuasive basis for standing if P.O.W.E.R. had been
trying to advance its goal by registering new voters
itself. Anyone who prevented it from doing that would
have injured it, just as the defendants in this case
would have injured it if they had prevented it from
going into waiting rooms and urging the people waiting
there to register. But P.O.W.E.R. was never forbidden
to do that, and never sought to do the actual
registering of voters.
Id. at 170 (emphasis in original) (citations omitted).

17

Read

Wamser specifically addressed the association’s standing to sue on
the basis of injury to its individual members, see Friends of the
Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181
(2000) (to have standing, an association must prove that its members
would have had standing to sue in their own right), rather than
organizational injury, see Havens Realty Corp. v. Coleman, 455 U.S.
363, 379 (1982) (an action adverse to an organization’s interests that
causes a drain on its resources is a legally cognizable injury).
Thus, Wamser is applicable to Intervenors’ claim, which only involves
individuals – not an association or organization.

21

together, Wamser and P.O.W.E.R. indicate that an individual or
association

would

not

have

standing

to

compel

Defendants

to

allow a third party to conduct voter-registration drives but
suffers a cognizable injury if they prevent the litigant him- or
herself from registering voters.
Here, Intervenors allege and produced evidence that they
pre-registered young voters in the past and would continue doing
so had SL 2013-381 not eliminated that program.
in case
attempt

1:13CV660; Doc. 159-3 ¶¶ 5-6.)
to

draw

a

distinction

between

(Doc. 63 ¶ 10

Although

Defendants

registration

and

pre-

registration, they fail to explain why any difference matters.
Rather, pre-registration appears to be the functional equivalent
of registration, except that 16- and 17-year-olds’ applications
wait

in

a

eligibility.

“hopper”
(Doc.

to
167

be
at

processed
184.)

by

the

Furthermore,

State
harm

upon
to

an

interest in registering voters is not the only civic harm courts
have recognized as sufficient for standing.

See Lerman v. Bd.

of Elections in City of N.Y., 232 F.3d 135, 141-43 (2d Cir.
2000) (finding harm to an individual’s interest in witnessing
petition signatures legally cognizable).

Based on the current

allegations and evidence, Intervenors have sufficiently alleged
standing
because

to
they

challenge
allege

the

that

SL

elimination
2013-381

of

directly

interest in registering 16- and 17-year-olds.
22

pre-registration
injures

their

Ordinarily, the standing inquiry would end here.

However,

Intervenors have moved to preliminarily enjoin the elimination
of

pre-registration,

and

whether

they

can

demonstrate

irreparable harm to justify an injunction depends in part on the
scope of the harm they properly assert.
consider

Intervenors’

alternative

bases

So, the court must
for

standing

to

the

extent they rely on other claims of harm.
Intervenors contend that they will have to expend greater
effort

and

resources

to

register

young,

18-and-older

voters

because they were not pre-registered as 16- or 17-year-olds.
(Doc. 159 at 4-5.)

Defendants dispute this as a factual matter,

arguing that there is no greater effort required to register an
18-year-old than a 16-year-old.

(Doc. 168 at 6-7.)

However,

there may be reasons why registering 16- and 17-year-olds is
more effective and less expensive than registering 18-year-olds,
and at this stage in the litigation the court is bound to accept
Intervenors’ reasonable factual allegations as true.

Therefore,

to the extent that Intervenors assert it takes greater effort to
register

young

registered,
injury.
in

loss

voters

they

have

who

otherwise

alleged

a

would

direct,

have

legally

been

pre-

cognizable

However, to the extent they seek to ground their injury
of

organizational

resources,

relying

plaintiffs

and

23

on

authority

without

any

applicable

to

allegations

or

evidence of financial harm (Doc. 159 at 4-5), that argument
fails.
Intervenors

also

contend

that

they

will

have

to

expend

greater effort and resources to get out the vote because SL
2013-381 discourages young voters from voting.
Intervenors

are

not

a

organization, however.

political

party

or

any

(Id. at 5-6.)
other

kind

of

Intervenors, as individuals, do not have

a direct, particularized interest in the outcome of an election
like that of the Democratic Party, see Crawford v. Marion Cnty.
Election Bd., 472 F.3d 949, 951 (7th Cir. 2007), aff’d by 553
U.S. 181 (2008), or of an association of candidates challenging
incumbents, see Common Cause v. Bolger, 512 F. Supp. 26, 30
(D.D.C. 1980).

They have no budget from which resources must

now be diverted to deal with the effects of SL 2013-381.

Even

assuming the truth of all Intervenors’ factual allegations and
evidence, therefore, they do not have standing on this ground.
Next

Intervenors

assert

that

SL

2013-381

harms

their

interest in living in a State that does not discriminate against
young voters.

(Doc. 159 at 6-7.)

Under such a theory, any one

of North Carolina’s approximately 6.5 million registered voters
would

have

registration.

standing

to

challenge

the

elimination

of

pre-

That injury is not sufficiently particularized to

confer standing, and Intervenors’ argument and authority do not
indicate otherwise.

Cf. Shaw v. Reno, 509 U.S. 630, 650 (1993)
24

(discussing the merits of the Fourteenth Amendment claim, not
standing).

Intervenors’ attempt to ground standing in their

support of a particular Democratic candidate similarly fails.
(Doc. 159 at 7-9.)
Finally, Intervenors contend that they are “not require[d]”
to “have standing independent from the original [P]laintiffs.”
(Id. at 9.)
Plaintiffs

While that may be true as to claims that other
actually

assert,

here,

no

other

Plaintiff

has

challenged the elimination of pre-registration as to all young
voters.

The

circuits

appear

to

be

split

on

whether

the

jurisdictional rule requiring a party to have standing to bring
a claim can be dispensed with entirely for Intervenors injecting
new claims into the litigation.

Cf. Shaw v. Hunt, 154 F.3d 161

(4th Cir. 1998) (permissive Intervenors not required to have
standing where they adopted plaintiffs’ complaint and asserted
no new claim); S.E.C. v. U.S. Realty & Improvement Co., 310 U.S.
434, 460 (1940) (intervenor had “a sufficient interest in the
maintenance of its statutory authority and the performance of
its public duties to entitle it through intervention to prevent
[bankruptcy] reorganizations”); King v. Christie, 981 F. Supp.
2d 296, 307 (D.N.J. 2013) (noting circuit split on the question
of whether an intervenor must have standing).

Intervenors cite

no Fourth Circuit case addressing the issue, nor has the court
found one.

Because Intervenors fail to allege any different
25

harm should its position be correct, the court need not decide
this issue at this stage; and, in light of the lack of Fourth
Circuit precedent, the court declines to do so.
For

these

reasons,

therefore,

the

court

finds

that

Intervenors have alleged sufficient harm to their interest in
registering 16- and 17-year-olds to provide standing at this
stage,

but have not properly asserted any broader harm than

that.18
III. PRELIMINARY INJUNCTION MOTIONS
A.

Preliminary Injunction Standard and General Principles

Issuance of a preliminary injunction is “an extraordinary
remedy

involving

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) (quoting Direx Israel,
Ltd. v. Breakthrough Med. Corp., 952 F.2d 802, 811 (4th Cir.
1991)); Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7,
22, 24 (2008).

This is true even when the asserted injury is a

violation of the Constitution or the VRA.

See, e.g., Centro

Tepeyac, 722 F.3d at 187 (First Amendment claim); Perry-Bey v.
City of Norfolk, 679 F. Supp. 2d 655, 662 (E.D. Va. 2010) (VRA
claim).
18

Of course, whether SL 2013-381 actually causes injury to Intervenors
remains to be demonstrated at trial.

26

To

demonstrate

entitlement

to

preliminary

relief,

Plaintiffs must make a “clear showing” that (1) they are likely
to succeed on the merits of their claims; (2) they are likely to
suffer irreparable harm if an injunction does not issue; (3) the
balance

of

the

equities

tips

in

their

injunction is in the public interest.

favor;

and

(4)

an

Winter, 555 U.S at 20,

22; Dewhurst v. Century Aluminum Co., 649 F.3d 287, 290 (4th
Cir. 2011).

All four requirements must be satisfied in order

for relief to be granted.

Real Truth About Obama, Inc. v.

Federal Election Comm’n, 575 F.3d 342, 346 (4th Cir. 2009),
vacated on other grounds by 559 U.S. 1089 (2010).

It is not

enough that a plaintiff show a grave or serious question for
litigation;

he

must

make

a

“likely” succeed on the merits.

“clear”

demonstration

he

will

Id. at 346-47.

The denial of a constitutional right, such as the right to
vote, constitutes irreparable harm.

Ross v. Meese, 818 F.2d

1132, 1135 (4th Cir. 1987); United States v. Berks Cnty., 250 F.
Supp. 2d 525, 540 (E.D. Pa. 2003).

Because a trial on the

merits is scheduled in these cases for July 2015, Plaintiffs and
Intervenors must therefore make a clear showing that they will
be

irreparably

harmed

in

connection

with

the

November

2014

general election – the only scheduled election between now and
the trial date.
The Supreme Court has long recognized that the right to
27

vote is fundamental and preservative of all other rights in our
republic.

See Reynolds v. Sims, 377 U.S. 533, 561–62 (1964)

(citing Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886)).

The

Constitution’s

the

Elections

Clause

reserves

to

the

States

general power to regulate “[t]he Times, Places and Manner of
holding Elections for Senators and Representatives,” subject to
laws

passed

“Common

by

sense,

conclusion

Congress.
as

that

well

U.S.
as

government

Const.

art.

constitutional
must

play

I

§

law,

an

4

cl.

compels

active

1.
the

role

in

structuring elections; ‘as a practical matter, there must be a
substantial regulation of elections if they are to be fair and
honest and if some sort of order, rather than chaos, is to
accompany the democratic processes.’”

Burdick v. Takushi, 504

U.S. 428, 433 (1992) (quoting Storer v. Brown, 415 U.S. 724, 730
(1974)).

The State’s power to regulate elections is subject to

limits imposed by the Constitution, including the Fourteenth,
Fifteenth, and Twenty-Sixth Amendments, and federal law.
Here, Plaintiffs challenge several provisions of SL 2013381,

individually

severability

and

provision

cumulatively.
that

would

The

allow

portions without striking it wholesale.19
19

statute

the

court

contains
to

a

enjoin

Thus, the court will

SL 2013-381 provides: “[i]f any provision of [SL 2013-381] or its
application is held invalid, the invalidity does not affect other
provisions or applications of [the law] that can be given effect
without the invalid provisions or application, and to this end the

28

examine the challenged provisions with this in mind.
B.

SDR

In 2007, the General Assembly passed legislation permitting
SDR at early-voting sites, which the governor signed into law
effective October 9, 2007.

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.”

2007 N.C. Sess. Laws 253, § 1 (codified

at N.C. Gen. Stat. § 163-82.6A(a) (2008)).
prospective

voter

to

complete

a

The law required a

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

person elected to vote immediately, he or she could “vote a
retrievable absentee ballot as provided in [Section] 163-227.2
immediately

after

registering.”

Stat. § 163-82.6A(c) (2008)).

Id.

(codified

at

N.C.

Gen.

Within two business days, both

the CBOE and SBOE 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)).
provisions of [SL 2013-381] are severable.”
§ 60.1.

29

2013 N.C. Sess. Law 381,

SL

2013-381

repealed

the

SDR

provisions.

Now,

to

be

eligible to vote in any primary or general election, a voter
must

comply

with

preexisting

law

that

requires

that

the

registration be postmarked at least 25 days before Election Day
or,

if

delivered

in

person

or

via

fax

or

scanned

document,

received by the CBOE at a time established by the board.

N.C.

Gen. Stat. § 163-82.6(c)(1)-(2).
All

Plaintiffs,

including

Intervenors,

move

to

preliminarily enjoin SL 2013-381’s elimination of SDR for the
November 2014 election.

Plaintiffs rely on four distinct legal

theories: (1) racially discriminatory results under Section 2 of
the VRA; (2) racially discriminatory intent under Section 2 and
the Fourteenth and Fifteenth Amendments; (3) undue burden on the
right to vote of all voters under the Fourteenth Amendment; and
(4)

unlawful

denial

or

abridgment

of

the

right

to

account of age under the Twenty-Sixth Amendment.

vote

on

Each basis

will be addressed in turn.
1.

Section 2 “results”

Section 2 of the original VRA provided that “[n]o voting
qualification or prerequisite to voting, or standard, practice,
or

procedure

political

shall

be

subdivision

imposed
to

deny

or
or

applied
abridge

by
the

any

State

right

of

or
any

citizen of the United States to vote on account of race or
color.”

42 U.S.C. § 1973 (1976).
30

In City of Mobile v. Bolden,

446 U.S. 55 (1980), the Supreme Court held that plaintiffs were
required to show discriminatory intent in order to prevail on a
Section 2 claim.

In response to Bolden, Congress amended the

VRA to clarify that Section 2 plaintiffs need only show that a
particular voting practice “results in a denial or abridgement
of the right of any citizen of the United States to vote on
account of race or color.”
v.

Gingles,

478

U.S.

30,

42 U.S.C. § 1973(a); see Thornburg
35

(1986)

(“Congress

substantially

revised § 2 to make clear that a violation could be proved by
showing
relevant

discriminatory
legal

effect

alone

the

‘results

standard

and

to

test,’

establish
applied

as
by

the
this

Court in White v. Regester, 412 U.S. 755 (1973), and by other
federal courts before.”)
may

be

proven

discriminatory

either

by

intent.

Consequently, a Section 2 violation
showing
See,

discriminatory

e.g.,

Garza

v.

results

Cnty.

of

or
Los

Angeles, 918 F.2d 763, 766 (9th Cir. 1990); Brown v. Detzner,
895 F. Supp. 2d 1236, 1244 (M.D. Fla. 2012); United States v.
Charleston Cnty., 316 F. Supp. 2d 268, 272 n.3 (D.S.C. 2003).
Section 2(b) now provides:
A violation of subsection (a) of this section 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 members of a class of citizens
protected by subsection (a) of this section in that
its members have less opportunity than other members
31

of the electorate to participate in the political
process and to elect representatives of their choice.
The extent to which members of a protected class have
been elected to office in the State or political
subdivision
is
one
circumstance
which
may
be
considered: Provided, That nothing in this section
establishes a right to have members of a protected
class elected in numbers equal to their proportion in
the population.
42 U.S.C. § 1973(b).
“The essence of a § 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

representatives.”

white

voters

to

elect

Gingles, 478 U.S. at 47.

their

preferred

The Gingles Court

noted that the Senate Judiciary Committee’s majority Report that
accompanied the amendment provided several factors that may be
probative in establishing a Section 2 violation:
1.
the
extent
of
any
history
of
official
discrimination in the state or political subdivision
that touched the right of the members of the minority
group
to
register,
to
vote,
or
otherwise
to
participate in the democratic process;
2. the extent to which voting in the elections of the
state or political subdivision is racially polarized;
3. the extent to which the state or political
subdivision
has
used
unusually
large
election
districts, majority vote requirements, anti-single
shot
provisions,
or
other
voting
practices
or
procedures that may enhance the opportunity for
discrimination against the minority group;
4. if there is a candidate slating process, whether
the members of the minority group have been denied
access to that process;
32

5. the extent to which members of the minority group
in the state or political subdivision bear the effects
of
discrimination
in
such
areas
as
education,
employment and health, which hinder their ability to
participate effectively in the political process;
6. whether political campaigns have been characterized
by overt or subtle racial appeals;
7. the extent to which members of the minority group
have
been
elected
to
public
office
in
the
jurisdiction.
Additional factors that in some cases have had
probative value as part of plaintiffs’ evidence to
establish a violation are:
whether there is a significant lack of responsiveness
on the part of elected officials to the particularized
needs of the members of the minority group.
whether the policy underlying the state or political
subdivision’s
use
of
such
voting
qualification,
prerequisite to voting, or standard, practice or
procedure is tenuous.
Id. at 36-37 (quoting S. Rep. No. 97–417, pp. 28-29, 97th Cong.
2nd Sess. 28 (1982)).
As

other

courts

have

noted,

these

factors

were

clearly

designed with redistricting and other “vote-dilution” cases in
mind.

See

Brown,

895

F.

Supp.

at

1245

n.13;

Miss.

State

Chapter, Operation Push v. Allain, 674 F. Supp. 1245, 1263 (N.D.
Miss. 1987), aff’d sub nom Miss. State Chapter, Operation Push,
Inc. v. Mabus, 932 F.2d 400 (5th Cir. 1991); see also Daniel P.
Tokaji, The New Vote Denial: Where Election Reform Meets the
Voting

Rights

Act,

57

S.C.

L.

Rev.

689,

709

(2006)

(“The

legislative history of the 1982 amendments, however, provides
little

guidance

on

how

Section
33

2

should

apply

to

practices

resulting in the disproportionate denial of minority votes.”).
In

contrast,

claims

disproportionately

affect

“vote-denial” cases.
45

(“Vote

challenging

denial

minority

voting
voters

procedures

are

that

referred

to

as

See, e.g., Brown, 895 F. Supp. 2d at 1244-

occurs

when

a

state

employs

a

standard,

practice, or procedure that results in the denial of the right
to vote on account of race.” (quoting Johnson v. Governor of
State of Fla., 405 F.3d 1214, 1227 n.26 (11th Cir. 2005) (en
banc) (internal quotation marks omitted))).
Vote-denial

claims

under

Section

2

have

thus

far

been

relatively rare, perhaps due in part to the fact that since
1965,

many

jurisdictions

-

including

many

North

Carolina

counties - were under federal control and barred from enacting
any new voting procedure without first obtaining “pre-clearance”
under Section 5 of the VRA from the DOJ or the United States
District

Court

§ 1973c(a).

for

Under

the

District

Section

5,

the

of

Columbia.

covered

42

U.S.C.

jurisdiction

was

required to show that the new provision would not “lead to a
retrogression in the position of racial minorities with respect
to their effective exercise of the electoral franchise.”

Reno

v. Bossier Parish Sch. Bd., 520 U.S. 471, 478 (1997) (quoting
Beer v. United States, 425 U.S. 130, 141 (1976)).

The Supreme

Court’s 2013 decision in Shelby County, declaring the formula
used to determine the “covered jurisdictions” under Section 5 to
34

be

unconstitutional,

relieved

several

States,

counties,

and

townships of the burden of submitting their voting changes to
federal authorities to be pre-cleared.20

As a result, very few

appellate cases have considered vote-denial claims under Section
2.21

See, e.g., Irby v. Va. State Bd. of Elections, 889 F.2d

1352

(4th

establish

Cir.

1989)

Virginia’s

(holding
choice

to

that

black

appoint,

voters

rather

could

than

not

elect,

school board members violated Section 2 because there was no
evidence the admitted disparity between black and white school
20

Since Shelby County, at least one other State has had its newlyenacted voting law challenged under Section 2. See Veasey v. Perry, _
F. Supp. 2d _, Civ. A. No. 13-CV-00193, 2014 WL 3002413 (S.D. Tex.
July 2, 2014) (denying Texas’ motion to dismiss Section 2 and other
claims challenging its voter ID law).
21

This excludes cases challenging felon-disenfranchisement provisions.
While these are technically vote-denial claims, the courts of appeal
have analyzed them differently because of the Fourteenth Amendment’s
specific
sanction
of
such
laws
and
the
long
history
of
disenfranchisement of felons in many States.
See, e.g., Simmons v.
Galvin, 575 F.3d 24, 35-36 (1st Cir. 2009) (“When we look at the terms
of the original VRA as a whole, the context, and recognized sources of
congressional intent, it is clear the original § 2 of the VRA of 1965
was not meant to create a cause of action against a state which
disenfranchises its incarcerated felons.”); Hayden v. Pataki, 449 F.3d
305, 328 (2d Cir. 2006) (en banc) (applying a clear-statement rule
because of the history of felon-disenfranchisement provisions and
concluding
that
“Congress
unquestionably
did
not
manifest
an
‘unmistakably clear’ intent to include felon disenfranchisement laws
under the VRA”); Johnson, 405 F.3d at 1230 (“Here, the plaintiffs’
interpretation
[that
Section
2
covers
felon-disenfranchisement
provisions] creates a serious constitutional question by interpreting
the Voting Rights Act to conflict with the text of the Fourteenth
Amendment.”); but see Wesley v. Collins, 791 F.2d 1255 (6th Cir. 1986)
(upholding Tennessee’s felon-disenfranchisement law, but classifying
the challenge as a vote-dilution claim); Farrakhan v. Washington, 338
F.3d 1009 (9th Cir. 2003), reh’g denied by 359 F.3d 1116 (9th Cir.
2004)
(concluding
that
vote-denial
claims
challenging
felondisenfranchisement laws are cognizable under Section 2, and remanding
to the district court to conduct analysis).

35

board members had been caused by the appointive system); Ortiz
v. City of Philadelphia, 28 F.3d 306, 312-14 (3d Cir. 1994)
(holding that State statute removing voters who did not vote in
the last two federal elections from the registration rolls did
not violate Section 2 because its disparate impact on minorities
was not caused by the statute, but rather “because [individual
voters] do not vote, and do not take the opportunity of voting
in the next election or requesting reinstatement”); Smith v.
Salt River Project Agric. Improvement & Power Dist., 109 F.3d
586, 595-96 (9th Cir. 1997) (holding that a special utility
district’s decision to limit the right to vote in the district
to property owners was not a Section 2 violation because, even
though the requirement disproportionately affected minorities,
there

was

no

causal

connection

between

the

decision

and

a

discriminatory result).
These cases indicate that “a bare statistical showing of
disproportionate impact on a racial minority does not satisfy
the § 2 ‘results’ inquiry.”22
in original).

Smith, 109 F.3d at 595 (emphasis

However, few cases attempt to set out the proper

22

The Sixth Circuit’s decision in Stewart v. Blackwell, 444 F.3d 843
(6th Cir. 2006), vacated as moot by 473 F.3d 692 (6th Cir. 2007) (en
banc), is not to the contrary. There, the court merely clarified that
Section 2 plaintiffs are not required to show an “actual denial” of
the right to vote but could prevail based on a showing of
“discriminatory effect.”
Id. at 878.
It did not hold that a bare
showing that a law would have a disparate impact on a minority group
would be sufficient under Section 2.

36

test in vote-denial cases.
provide some guidance.

Two recent district

court cases

In Brown, the Middle District of Florida

denied the plaintiffs’ motion to preliminarily enjoin a Florida
law that reduced the number of days of early voting from between
12 and 14 days to eight days, leaving each county discretion to
offer between 48 and 96 hours of early voting (after 96 had been
required under the old law).

895 F. Supp. 2d at 1239.

After

considering evidence that Florida’s largest counties (as well as
the State’s five covered counties under Section 5) would offer
the maximum number of hours of early voting,23 the district court
found that the plaintiffs’ claim was not likely to succeed on
the merits.
based

on

The court stated the Section 2 inquiry as “whether,
an

circumstances,

objective
the

analysis

application

of

of
the

the

totality

[statute]

will

of
act

the
to

exclude African American voters from meaningful access to the
polls, on account of race.”
marks omitted).

Id. at 1249–50 (internal quotation

Despite accepting the findings of experts that

the changes would disproportionately impact black voters, see

23

The United States District Court for the District of Columbia,
sitting as a three-judge court, had previously refused to pre-clear
the same law under Section 5 on the ground that it could be
retrogressive if the five covered counties chose to offer fewer than
the maximum number of hours of early voting permitted by the statute.
See Florida v. United States, 885 F. Supp. 2d 299 (D.D.C. 2012).
After the five covered counties committed to using the maximum number
of hours, the Attorney General pre-cleared the changes. Brown, 895 F.
Supp. 2d at 1241–42.

37

id. at 1251, the court found that “[b]ecause [the new statute]
allows early voting during non-working hours, as well as voting
during the weekend, including one Sunday, voting times which are
important to African American voters, as well as to [get-outthe-vote] efforts, the Court cannot find that [it] denies equal
access to the polls.”

Id. at 1255.

In doing so, the court

emphasized that it was not comparing the old law to the new one,
because that retrogression standard applies only in a Section 5
proceeding.24
In Frank v. Walker, __ F. Supp. 2d __, 2014 WL 1775432
(E.D.

Wis.

Apr.

29,

2014),

the

court

enforcement of Wisconsin’s voter ID law.

permanently

enjoined

Drawing from Gingles –

although declining to apply the Gingles factors, which the court
viewed as applicable only in the vote-dilution context – the
court

held

that

disproportionate
voting

practice

Section
impact
with

2

plaintiffs

results
the

“must

from

the

effects

of

show

that

interaction
past

or

discrimination and is not merely a product of chance.”
*31.

After

concluding

that

black

voters

of

the
the

present
Id. at

disproportionately

lacked IDs, the court found that the ID requirement interacted
with

historical

conditions

of

24

discrimination

in

housing,

The court underscored the important role the distinction between the
Section 2 standard and the Section 5 retrogression standard and their
different burdens of proof played in the case.
Id. at 1251 (citing
Reno, 528 U.S. at 324).

38

employment, and other areas to cause an additional barrier to be
placed in the path of black voters.

Id. at *32-33.

Thus, the

voter ID provision violated Section 2.25
The

Brown

court’s

formulation

accurately

captures

the

Section 2 results inquiry: whether the current electoral law
interacts with historical discrimination and social conditions
to cause black voters to have unequal access to the polls.26
Plaintiffs contend that North Carolina’s lack of SDR interacts
with

its

history

of

official

discrimination

and

present

conditions to cause a discriminatory result.

Plaintiffs’ expert

testimony

of

currently

demonstrates
lag

behind

that

black

whites

in

citizens
several

key

North

Carolina

socioeconomic

indicators, including education, employment, income, access to
transportation, and residential stability.27

They also presented

25

On July 31, 2014, the Wisconsin Supreme Court issued a contrary
ruling, finding the Wisconsin photo ID law constitutional under
Wisconsin law. Milwaukee Branch of NAACP v. Walker, _ N.W.2d _, 2014
WL 3744073 (Wis. July 31, 2014). The Wisconsin Supreme Court did not
address Section 2, however.
26

Plaintiffs here concede that the applicable inquiry is whether the
current system under SL 2013-381 results an inequality of opportunity
of white and black citizens to exercise the franchise. (Doc. 164 at
26-27.)
27

Plaintiffs presented the following unchallenged statistics: (1) as
of 2011-12, 34% of black North Carolinians live below the federal
poverty level, compared to 13% of whites (J.A. at 1104); (2) as of the
fourth quarter of 2012, unemployment rates in North Carolina were
17.3% for blacks and 6.7% for whites (id.); (3) 15.7% of black North
Carolinians over age 24 lack a high school degree, as compared to
10.1% of whites (J.A. at 1151); (4) 27% of poor black North
Carolinians do not have access to a vehicle, compared to 8.8% of poor

39

unrebutted testimony that black North Carolinians have used SDR
at a higher rate than whites in the three federal elections
during which SDR was offered.28
North Carolina also has an unfortunate history of official
discrimination in voting and other areas that dates back to the
Nation’s founding.

See, e.g., Gingles v. Edmisten, 590 F. Supp.

345, 359-61 (E.D.N.C. 1984), aff’d in part and rev’d in part by
Thornburg v. Gingles, 478 U.S. 30 (1986); (see also J.A. at
1036-92 (report of Dr. Lorraine C. Minnite).).

This experience

affects the perceptions and realities of black North Carolinians
to this day.29
for

Simply put, in light of the historical struggle

African-Americans’

voting

rights,

North

Carolinians

have

reason to be wary of changes to voting laws.
Plaintiffs’

historical

evidence

in

these

cases

focuses

largely on racial discrimination that occurred between a quarter
of a century to over a century ago.

However, as the Supreme

Court recently stated, “history did not end in 1965.”

Shelby

whites (J.A. at 1155); and (5) 75.1% of whites in North Carolina live
in owned homes as compared to 49.8% of blacks (J.A. at 1158).
28

In 2012, 13.4% of black voters who voted early used SDR, 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%. (J.A. at 629.)
29

For example, Plaintiff Rosanell Eaton, now 94 years old, testified
impressively as to how at approximately age 19 (in the 1940s) she was
required to recite the Preamble to the Constitution from memory in
order register to vote. (Doc. 165 at 39-40.)

40

Cnty., 133 S. Ct. at 2628.

In the period between the enactment

of the VRA and 2013, “voting tests were abolished, disparities
in voter registration and turnout due to race were erased, and
African-Americans attained political office in record numbers.”
Id.

The record reflects such progress in North Carolina, too.

Plaintiffs’ expert, Dr. Barry C. Burden, indicates that black
North Carolinians have reached “parity” with whites in turnout
for presidential elections.

(J.A. at 1100.)

And Dr. Charles

Stewart III concludes that “[t]he registration rate of AfricanAmericans has surged in North Carolina since 2000, to the point
that the registration rate of African Americans now exceeds that
of whites,” a development he characterizes as “significant.”30
(J.A. at 800.)

Plaintiffs’ experts attribute these increases to

the candidacy of President Barack Obama as well as to North
Carolina’s election law changes since 2000.
(report

of

Kousser).)31

Dr.

Burden);

1193

(report

(See J.A. at 1100
of

Dr.

J.

Morgan

In addition, Dr. Burden notes, blacks in North

30

To put this advance in perspective, by 2012 black registration
reached 95.3% and white registration 87.8%.
(J.A. at 806.)
This
compares to the Gingles court’s finding that in 1982 the black
registration rate was 52.7% and the white registration rate was 66.7%.
Gingles, 590 F. Supp. at 360.
By 2000, the black registration rate
was 81.1% and the white registration rate was 90.2%, and by 2006,
82.3% of voting-age blacks were registered as opposed to 87.4% of
whites. (J.A. at 807.)
31

The largest increases in black turnout occurred in 2008 and 2012,
with turnout in the intervening off-year elections falling by nearly
half relative to presidential years. (J.A. at 1197.)

41

Carolina have been elected to political office at levels that
now

“approach[]

electorate.”32

with

(J.A. at 1107.)

circumstances,
context,

parity

therefore,

giving

it

due

their

prevalence

in

the

In examining the totality of the

the

court

weight,

but

views

all

also

evidence

in

being

careful

to

acknowledge that “[p]ast discrimination cannot, in the manner of
original sin, condemn governmental action that is not in itself
unlawful.”

Bolden, 446 U.S. at 74.

Plaintiffs rely on Operation Push.
challenged

Mississippi’s

system

of

There, the plaintiffs
maintaining,

for

some

municipalities, a system of “dual registration” that required a
person to register in two different locations to be eligible to
vote

in

municipal

federal elections.

elections

as

well

as

county,

674 F. Supp. at 1249-50.

state,

and

It was admitted

that the practice was initially enacted in 1890 as part of a
plan

to

disenfranchise

black

voters,

but

the

court

did

not

address whether it was being maintained for a discriminatory
purpose in the 1980s.
nevertheless

enjoined

Id. at 1251-52.
the

requirement

The district court
after

a

searching

examination of what it considered to be the relevant Gingles
factors:

(1)

history

of

discrimination,

(2)

socioeconomic

results of discrimination, (3) the extent that black citizens
32

Of course, the VRA expressly provides that there is no right to
proportional representation. 42 U.S.C. § 1973(b).

42

have been elected to public office, (4) lack of responsiveness
among elected officials to the black community, and (5) the
tenuousness of the State’s interest.
The

present

cases

respects, however.

are

Id. at 1263-68.

distinguishable

in

important

The Mississippi system had led to a large

disparity in registration between black and white voters, and
the court found that the valid registration rate for whites
remained

approximately

25

percentage

points

above

that

for

blacks.

Id. at 1254.

Thus, the discriminatory results of the

lingering dual-registration system were clear – fewer black than
white Mississippians were able to register to vote over a long
period, magnifying the effect of the system.

Also, the dual-

registration system had been in effect to varying degrees for
almost 100 years, propagating its effects even further, and the
court found that the challenged statutes did not advance or
relate rationally to any substantial or legitimate governmental
interest.

Id. at 1260-61.

Mississippi

was

the

registration scheme.
decided

in

official

1987,

In fact, at the time of the decision

only

State

Id. at 1252.

not

long

disenfranchisement

after
of

maintaining

such

a

dual-

Finally, Operation Push was
Mississippi

black

would-be

had

engaged

voters.

in

Here,

voting-age blacks in North Carolina maintain a higher current
registration

rate

continued

make

to

than

whites,

significant

black

increases

43

registration
in

the

seven

rates
years

before the adoption of SDR (J.A. at 804, Table 2 (noting an
increase of black registered voters from 988,134 to 1,116,818 in
the period from 2000 to 2006)), and SDR existed for only three
federal election cycles (six years) before it was repealed by SL
2013-381.33
Additionally,

the

high

registration

rate

of

black

North

Carolinians – 95.3%, some 7.5 percentage points above that of
whites

–

suggests

strongly

that

unequal access to the polls.

black

voters

will

not

have

Plaintiffs point to Dr. Stewart’s

conclusion that SL 2013-381 would have affected 3% of the 2012
African-American

registrants

if

it

had

then

been

in

effect.

(J.A. at 789.)

From this, Plaintiffs predict that without SDR,

North

will

Carolina

registrants.

experience

a

similar

reduction

in

black

But this prediction appears to ignore important

considerations.
Particularly,

Plaintiffs

have

not

shown

that

African-

American voters in 2012 lacked – or more importantly, that they
currently lack - an equal opportunity to easily register to vote
otherwise.

For example, under current law, every State resident

can register to vote by mail.

See N.C. Gen. Stat. § 163-82.6(a)

(“The county board of elections shall accept any form described
33

Moreover, as noted above, according to Dr. Burden, some of the
recent increase in black registration since 2008 is attributable to
the candidacy of the first black major-party presidential candidate.
(J.A. at 1100.)

44

in [N.C. Gen. Stat. §] 163-82.3 if the applicant submits the
form by mail, facsimile transmission, transmission of a scanned
document, or in person.”).
economic,

or

other

Thus, those with transportation,

challenges

register.

Cf.

Operation

(describing

Mississippi

need

Push,

law

not
674

that

physically
F.

Supp.

initially

appear
at

to

1250-52

prevented

all

registration outside of the office of the county registrar).
Certain

State

registration

agencies

services.

are
Such

also

required

agencies

to

include

offer

voter

departments

of

social services and public health, disability services agencies
(vocational rehabilitation offices, departments of services for
the

blind,

Carolina

for

the

Employment

circumstances,

the

deaf,

and

Security
North

for

mental

Commission,

Carolina

health),
and,

Division

of

the

under
Motor

North

certain
Vehicles

(“DMV”), pursuant to N.C. Gen. Stat. §§ 163-82.19 & 163-82.20.
(Doc. 126-1 ¶ 10.)

In response to questioning at the hearing,

no Plaintiff demonstrated how these various other options failed
to provide an equal opportunity to any black voter who otherwise
wished

to

use

SDR.

(See,

e.g.,

Doc.

167

at

135-40

(acknowledging that these other avenues mean that “many people
who are of lower socioeconomic status have an opportunity to
register to vote elsewhere”).

In addition, State law permits

any individual, group, or organization - such as the get-outthe-vote

(“GOTV”)

efforts

conducted
45

by

some

Plaintiffs

-

to

conduct

a

training,

voter

registration

pursuant

materials

the

SBOE

to

drive,

SBOE-published

and

CBOEs

without

any

guidelines

provide.

(Doc.

special

and

126-1

¶

with
11.)

Finally, under SL 2013-381, a voter who has moved within the
county can still update his or her registration during early
voting (i.e., after the 25-day registration cut-off).
Stat. § 163-82.6A(e).

N.C. Gen.

That voters preferred to use SDR over

these methods does not mean that without SDR voters lack equal
opportunity.
Furthermore,

because

Section

2

does

not

incorporate

a

“retrogression” standard, the logical conclusion of Plaintiffs’
argument would have rendered North Carolina in violation of the
VRA before adoption of SDR simply for not having adopted it.
Yet, neither the United States nor the private Plaintiffs have
ever taken the position that a jurisdiction was in violation of
Section 2 simply for failing to offer SDR.
Section

2

that

far

could

have

Indeed, “[e]xtending

dramatic

and

far-reaching

effects,” Irby, 889 F.2d at 1358, placing the laws of at least
36 other states which do not offer SDR in jeopardy of being in
violation of Section 2.34

The district court in Brown recognized

34

See Ala. Code. § 17-3-50 (14-day registration deadline); Alaska
Stat. Ann. § 15.07.070(c)-(d) (30 days); Ariz. Rev. Stat. Ann. § 16120 (30 days); Ark. Code Ann. § 7-5-201(a) (30 days); Del. Code tit.
15 § 2036 (24 days); Fla. Stat. § 97.055(1)(a) (29 days); Ga. Code
Ann. § 21-2-224(a) (29 days); Haw. Rev. Stat. § 11-24(a) (30 days); 10
Ill. Comp. Stat. 5/4-50 (three days, with some variation among

46

this inherent difficulty in Plaintiffs’ argument in the context
of the early-voting reduction, where the court stated:
Consider the fact that many states do not engage in
any form of early voting.
Following Plaintiffs’
theory to its next logical step, it would seem that if
a state with a higher percentage of registered
African–American voters than Florida did not implement
an early voting program a Section 2 violation would
occur because African–American voters in that state
would have less of an opportunity to vote than voters
in Florida.
It would also follow that a Section 2
violation could occur in Florida if a state with a
lower percentage of African–American voters employed
an early voting system . . . that lasts three weeks
instead of the two week system currently used in
Florida.
This simply cannot be the standard for
establishing a Section 2 violation.
Brown, 895 F. Supp. 2d at 1254 (quoting Jacksonville Coal. for
Voter Protection v. Hood, 351 F. Supp. 2d 1326, 1335-36 (M.D.
Fla. 2004)).

Rather, the court clarified, it “must consider

whether the State of Florida, having decided to allow early
counties, except for limited SDR in the fall of 2014); Ind. Code. §§
3-7-13-11, 3-7-33-3, 3-7-33-4 (29 days); Kan. Stat. Ann. § 25-2311(3)(7) (21 days); Ky. Rev. Stat. Ann. § 116.045(1)-(2) (28 days); La.
Rev. Stat. Ann. § 18:135(1) (30 days); Md. Code Ann., Elec. Law § 3302(a) (21 days); Mass. Gen. Laws ch. 51, § 26 (20 days); Mich. Comp.
Laws § 168.497(1) (30 days); Mo. Rev. Stat. § 115.135 (27 days); Neb.
Rev. Stat. §§ 32-311.01(d), 32-302 (11 days if delivered in person by
the applicant, 18 days otherwise); Nev. Rev. Stat. § 293.560(1) (21
days); N.J. Stat. Ann. §§ 19:31-6, 31-7 (21 days); N.M. Stat. Ann. §
1-4-8(A) (28 days); N.Y. Elec. Law §§ 5-210(3), 5-211(11)-(12), 5212(6)-(7) (25 days); Ohio Rev. Code Ann. § 3503.19(A) (30 days);
Okla. Stat. tit. 26 § 4-110.1(A) (24 days); Or. Rev. Stat. §
247.012(3)(b) (21 days); 25 Pa. Cons. Stat. § 1326(b) (30 days); R.I.
Gen. Laws § 17.9.1-3(a) (30 days); S.C. Code Ann. § 7-5-150 (30 days);
S.D. Codified Laws § 12-4-5 (15 days); Tenn. Code Ann. § 2-2-109(a)
(30 days); Tex. Elec. Code Ann. § 13.143(a) (30 days); Utah Code Ann.
§ 20A-2-102.5(2) (30 days); Vt. Stat. Ann. tit. 17 § 2144(a) (six
days); Va. Code Ann. § 24.2-416 (22 days); Wash. Rev. Code Ann. §
29A.08.140(1) (eight days if in person, 29 days otherwise); W. Va.
Code § 3-2-6(a) (21 days).

47

voting, has adopted early voting procedures that provide equal
access to the polls for all voters in Florida.”
(emphasis

in

original).

Similarly

here,

Id. at 1254-55

the

court

is

not

concerned with whether the elimination of SDR will “worsen the
position of minority voters in comparison to the preexisting
voting standard, practice, or procedure,” id. at 1251 (internal
quotation marks omitted)

–

a Section 5

inquiry, but whether

North Carolina’s existing voting scheme (without SDR) interacts
with

past

discrimination

and

present

conditions

to

cause

a

discriminatory result.
Moreover, in the National Voter Registration Act of 1993
(“NVRA”), Congress explicitly sanctioned a State’s power to set
a registration cut-off of 30 days before an election.
§ 1973gg-6(a)(1).35

42 U.S.C.

As this statute was passed 11 years after

the amendment to Section 2, it is difficult to conclude that
Congress intended that a State’s adoption of a registration cutoff before Election Day would constitute a violation of Section
2.

See

United

(concluding

that

States
“all

v.

acts

Stewart,
in

pari

311

U.S.

materia

60,

are

to

64
be

(1940)
taken

together, as if they were one law,” and thus that “[t]he later
act can therefore be regarded as a legislative interpretation of

35

In fact, North Carolina has granted voters another five days,
setting its cut-off at 25 days before Election Day. N.C. Gen. Stat.
§ 163-82.6(c)(1)-(2).

48

the earlier act in the sense that it aids in ascertaining the
meaning of the words as used in their contemporary setting”
(internal citations omitted)); cf. Johnson, 405 F.3d at 1230
(concluding

that

Section

2

did

not

prohibit

enforcement

of

felon-disenfranchisement provisions in part because such laws
are explicitly sanctioned by the Fourteenth Amendment).
Finally, Plaintiffs

argue that Defendants’ stated policy

underlying elimination of SDR is tenuous, noting that supporters
expressed

concern

for

providing

“integrity

of

the

voting

process” to ensure that votes “be protected and not negated by
fraud.”
of

(J.A. at 2516-17.)

“electoral

justification

To be sure, a free-standing claim

integrity

does

not

flexible

enough

operate
to

as

an

embrace

all-purpose

any

burden.”

McLaughlin v. N.C. Bd. of Elections, 65 F.3d 1215, 1228 (4th
Cir. 1995) (quoting Republican Party of Ark. v. Faulkner Cnty.,
49 F.3d 1289, 1299 (8th Cir. 1995) (internal quotation marks
omitted)).

But here there is more in the legislative record.

During the Senate Rules Committee debate on the challenged SDR
provision, Senator Rucho contended:
There’s no way and there’s no simple way to validate.
What we’re trying to do is give the Board of Elections
an opportunity to do their job correctly, validate
those individuals and be sure that the election is
above board.
(Doc. 134-4 at 45.)
It

also

Later, during the second reading, he added:

allows

time

for
49

–

to

verify

voters’

information by repealing same day registration and
which will ensure accuracy. It’s been a challenge for
the Board of Elections to be able to identify and
validate everyone that has come there on the basis of
one-day registration . . . .
(Id. at 87.)

Defendants have presented evidence in support of

this interest.
Plaintiff’s witness, Gary Bartlett (SBOE Executive Director
from 1993 to 2013), acknowledged at the hearing that under SDR,
CBOEs

sometimes

lacked

under State law.36

sufficient

time

(Doc. 165 at 166.)

to

verify

registrants

As a consequence, over a

thousand ballots were counted in recent elections by voters who
were not (or could not be) properly verified.37
148-66; J.A. at 3267, 3269-72.)

(Doc. 165 at

George Gilbert, former director

36

When a voter registered using SDR during early voting, she was
required to present proper identification under the Help America Vote
Act of 2002 (“HAVA”), 42 U.S.C. §§ 15301-15545 (“HAVA ID”), proving
residence within the State.
After receiving the registration, the
CBOE sent out a verification card via the United States Postal Service
intended to determine if the voter in fact lived at the address
presented at the early-voting location.
(Doc. 164 at 183.)
If the
voter’s card was twice returned undeliverable, the CBOE canceled the
voter’s ballot. (Id. at 202.) However, the CBOEs allow 15 days for
each card to be returned undeliverable, and if the second card has not
yet been returned before the canvass (which occurs seven days after
the election in non-presidential years and ten days after in
presidential years), the voter’s vote is counted even though the voter
has not yet been properly verified through the State’s procedure.
(Id. at 205-07.)
37

For example, in the 2012 general election, SBOE records show that
approximately 1,288 ballots were counted despite being cast by voters
who did not complete the verification process.
(J.A. at 3271.)
In
the May 2012 primary, 205 ballots were counted without ever being
verified (J.A. at 3269), and in the 2010 general election, 153 such
ballots were counted (J.A. at 3267).

50

of the Guilford County Board of Elections, acknowledged 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.

(Doc. 165 at 16.)

These concerns were not new; they

had been identified by Director Bartlett in a 2009 report to the
General Assembly, following the implementation of SDR.
1528-36.)

(J.A. at

Specifically, the report noted: “county boards found

that there was not enough time between the end of [early] voting
(and SDRs) and the canvass date to ensure that verification
mailings completed the mail verification process.”
1533.)

(J.A. at

In addition, because of the volume of voters, CBOEs had

difficulty

simultaneously

conducting

registrations

and

early

voting such that “it was not possible to process the number of
voter registration applications received during one-stop voting”
within the two-day statutory window.
volume

issues,

validations,
voting.”38

[CBOEs]

especially

experienced
during

the

(Id.)
minor

last

few

Also, “[d]ue to
in
days

[sic]
of

DMV

[early]

(Id.)

The State has an interest in closing the voter rolls at a
reasonable time before Election Day.

38

In Marston v. Lewis, 410

Opponents of the bill were apparently unaware of this report. (See,
e.g., Doc. 134-4 at 220 (“Same day registration, I don’t know of a
single problem we’ve had with that . . . .”).)

51

U.S. 679, 681 (1973), the Supreme Court held that “it is clear
that

the

State

has

demonstrated

that

[a]

50-day

voter

registration cutoff (for election of state and local officials)
is necessary to permit preparation of accurate voter lists.”

In

passing the NVRA’s authorization in 1993 for States to have a
30-day cut-off for registration, Congress specifically noted its
purposes included “to establish procedures that will increase
the

number

of

eligible

citizens

to

register

to

vote,”

“to

protect the integrity of the electoral process,” and “to ensure
that

accurate

maintained.”

and

current

voter

registration

rolls

are

42 U.S.C. § 1973gg(b)(1), (3) & (4); see also

Lucas Cnty. Democratic Party v. Blackwell, 341 F. Supp. 2d 861,
865 (N.D. Ohio 2004) (noting that State law closing registration
books 30 days before Election Day “serves and promotes orderly
administration of elections” and “enables election officials to
verify information, including the driver’s license and social
security

numbers

of

persons

who

have

registered,

thereby

avoiding fraud”).
Plaintiffs argue that SDR is actually more reliable than
traditional registration because CBOEs are less likely to deny
voters

who

registered

during

early

registered before the 25-day cutoff.

voting

than

those

who

But as their own witness,

Director Bartlett, demonstrated, this argument ignores the fact
that

with

SDR

over

a

thousand
52

voters

have

had

their

votes

counted without being properly verified by the CBOEs.
SBOE

Director,

Kim

Strach,

testified

that

this

Current

concern

was

recently validated when improper and unverified votes cast as a
result of SDR tainted the outcome of a municipal election in the
town of Pembroke in November 2013 and caused the SBOE to issue
an order to conduct an entirely new election.

(Doc. 126-1 ¶ 28;

Doc. 161-9 at 48.)
Plaintiffs’ argument, therefore, fails to rebut Defendants’
point.

It is sufficient for the State to voice concern that SDR

burdened CBOEs and left inadequate time for elections officials
to properly verify voters before the canvass and that unverified
votes were counted as a result.

In fact, the State has more

than an interest in allowing time for verification – it has a
duty to ensure that unverified voters do not have their votes
counted in an election.
applies

here,

the

Thus, to the extent this Gingles factor

court

finds

that

the

State’s

justification for the repeal of SDR is not tenuous.
further

contention

that

these

unverified

voters

asserted

Plaintiffs’
nevertheless

represent a low level of possible fraud in view of the nearly
half a million people who use SDR does not somehow render the
State’s interest tenuous.
56.

Cf. Florida, 885 F. Supp. 2d at 355-

Whether other – arguably better - policy solutions exist to

address the problem is for elected officials, not the courts, to
decide.
53

For all these reasons and considering the complete record,
the court finds that Plaintiffs have not shown a likelihood of
success on the merits of their claim that current North Carolina
law

(without

SDR)

interacts

historical

discrimination

opportunity

for

to

with
result

African-Americans

to

current
in

an

exercise

vote in violation of Section 2 of the VRA.

conditions

and

inequality
their

right

of
to

The motion for

preliminary injunction on this basis will be denied.39
2.

Racially discriminatory intent under Section
and the Fourteenth and Fifteenth Amendments

The showing

2

of intent required to prove a violation of

Section 2 is the same as that required to establish a violation
of the Fifteenth Amendment and the Fourteenth Amendment’s Equal
Protection Clause.

See Charleston Cnty., 316 F. Supp. 2d at 272

39

Plaintiffs’ contention that these cases are analogous to cases like
Spirit Lake Tribe v. Benson County, No. 2:10-cv-095, 2010 WL 4226614
(D.N.D. Oct. 21, 2010), is not persuasive. In Spirit Lake Tribe, the
district court preliminarily enjoined under Section 2 a county’s
decision to close seven of eight precincts, including those closest to
a Native American reservation.
Id. at *1.
There, it was apparent
that the lack of polling places, combined with social and historical
conditions, caused the Native American population to have less
opportunity to vote on Election Day than the white population. Id. at
*3-4.
Here, because of the numerous other methods for registration
and the already high African-American registration rate, it has not
been shown that a lack of SDR will likely cause similar issues. See
also, e.g., Common Cause S. Christian Leadership Conference v. Jones,
213 F. Supp. 2d 1106 (C.D. Cal. 2001) (denying defendants’ motion for
judgment on the pleadings where plaintiffs alleged punch-card voting
used only in minority areas had a discriminatory result); Berks Cnty.,
250 F. Supp. 2d at 538-40 (granting preliminary injunction under
Section 2 where county failed to provide bilingual poll workers and
election officials made discriminatory remarks about Hispanics and did
not allow them to use their choice of poll assisters).

54

n.3 (citing Garza, 918 F.2d at 766); cf. Reno, 520 U.S. at 481
(“Since

1980,

a

plaintiff

bringing

a

constitutional

vote

dilution challenge, whether under the Fourteenth or Fifteenth
Amendment, has been required to establish that the State or
political subdivision acted with

a discriminatory purpose.”).

The analysis to follow, therefore, applies to the

Section 2

claim as well as to Plaintiffs’ claims under the Fourteenth and
Fifteenth Amendments.
In

Village

Development

of

Corp.,

Arlington
429

U.S.

Heights
252,

v.

Metropolitan
(1976),

265-66

Housing
Supreme

the

Court held that discriminatory intent is established where a
plaintiff proves that racial discrimination was a “motivating
factor” in the governing body’s decision.

See also Reno, 520

U.S. at 488; Brown, 895 F. Supp. 2d at 1245–46.

“Determining

whether invidious discriminatory purpose was a motivating factor
demands a sensitive inquiry into such circumstantial and direct
evidence of intent as may be available.”
U.S. at 266.

Arlington Heights, 429

The Court instructed that whether the impact of

the action “bears more heavily on one race than another” is “an
important starting point.”
426 U.S. 229, 242 (1976)).

Id. (quoting Washington v. Davis,
Next, the court should consider

“[t]he historical background of the decision . . . particularly
if it reveals a series of official actions taken for invidious
purposes.”

Id.

at

267.

“The
55

specific

sequence

of

events

leading up to the challenged decision also may shed some light
on the decisionmaker’s purposes.”

Id.

This includes departures

from the normal legislative procedure as well as substantive
departures,
important

“particularly
by

the

if

the

decisionmaker

contrary to the one reached.”

factors
strongly

Id.

usually

considered

favor

a

decision

Also relevant are “[t]he

legislative or administrative history . . . especially where
there

are

contemporary

statements

by

members

of

the

decisionmaking body, minutes of its meetings, or reports.”
at

268.

The

conclusive
factors,

Supreme

list

of

Court

factors

particularly

the

did
in

not

purport

Arlington

nature

and

to

establish

Heights,

weight

of

Id.
a

and

other

the

State

interest involved, may be specifically relevant to a claim of
discriminatory intent.

See, e.g., Florida, 885 F. Supp. 2d at

348, 355; Terrazas v. Clements, 581 F. Supp. 1329, 1347 (N.D.
Tex. 1984).
a.
As

to

the

Impact of decision
first

factor

and

as

discussed

above,

the

enactment of SL 2013-381’s elimination of SDR will bear more
heavily

on

African-Americans

than

whites

disproportionately took advantage of SDR.

because

the

former

As in Brown, however,

the disparate impact is softened by the fact that elimination of
SDR will not likely result in an inequality of opportunity to
vote for black citizens.

Cf. Brown, 895 F. Supp. 2d at 1246
56

(“Because

.

.

.

the

evidence

before

the

Court

does

not

demonstrate that the changes will deny minorities equal access
to

the

polls,

amendments

the

does

discriminatory

otherwise

not

disproportionate

weigh

effect

of

the

in

favor

of

finding

Moreover,

purpose.”).

heavily

as

noted,

Dr.

Stewart

predicts that elimination of SDR would have affected just 3% of
black voters (and 1.5% of whites) in 2012, and he predicts it
would have affected only 1.4% of black voters (and 1% of white
voters) in 2010.40
North

Carolina

(J.A. at 789-91.)
provides

several

Further, as noted above,
other

ways

to

register

(including amending registration) that, at least on this record,
have not been shown to be practically unavailable to AfricanAmerican residents.
2013-381’s

Thus, the disproportionate impact of SL

elimination

of

SDR

supports

a

finding

of

discriminatory intent, but only moderately so.
b.
As

for

the

Historical background of decision
historical

background

of

the

decision,

Plaintiffs contend that it “was not lost on the members of the
General Assembly” that, prior to SL 2013-381, North Carolina’s
decade of State action liberalizing election laws “had succeeded
in

dramatically

increasing

overall

40

voter

turnout

in

North

Although SDR was used disproportionately by black voters, it bears
noting that its elimination affects vastly more whites than blacks.
During its existence, SDR was used by 360,536 whites compared to
243,396 blacks in federal elections. (J.A. at 629.)

57

Carolina, and had increased African-American voter participation
in particular.”

(Doc. 98-1 at 61.)

Plaintiffs argue that race

data was offered by opponents to HB 589 during debate on the
bill (id.) and that the “marked upward trend in black voter
registration and turnout was well-known and widely discussed by
local

media

sources

and

in

public

hearings

of

the

House

Elections Committee, as well as documented in SBOE data” (Doc.
97 at 65).
There

is

evidence

that

at

its

initiation

–

before

any

indication of how it would be used by any minority group - SDR
was

a

partisan

issue

insofar

as

it

was

passed

by

a

Democratically-controlled General Assembly on a near-party line
vote and was signed into law by a Democratic governor.
1209 (report of Dr. Kousser), 2643-44.)

(J.A. at

When Republicans gained

control of the legislature and the governorship in 2013, they
moved to repeal SDR.

During debate on HB 589, while asserting

its disproportionate impact on blacks, some opponents of the
bill

nevertheless

partisanship.
Representative

attributed

(See,
Hall

e.g.,

that

the

the

supporters’

J.A.

at

bill

was

2563
“the

motivation

to

(statement

of

most

pointedly,

obviously politically partisan bill [he had] ever seen”); 1109
(report of Dr. Burden, noting that “[a]ll evidence indicates
that SL 2013-381 was enacted primarily for political gain . .
.”).)
58

To be sure, a partisan motive does not preclude or excuse
the existence of a racial motivation.

While “[r]arely can it be

said that a legislature or administrative body operating under a
broad

mandate

made

a

decision

motivated

solely

by

a

single

concern,” “racial discrimination is not just another competing
consideration.”
“Protecting
minorities

Arlington

incumbency
are

and

purposes

Heights,

429

safeguarding

often

at

war

the

U.S.

at

voting

with

each

265.

rights

other,”

of
and

racial animus in this context need not be “based on any dislike,
mistrust, hatred or bigotry.”

Garza, 918 F.2d at 778 (Kozinski,

J., concurring in part and dissenting in part).

But the fact

that a bill reverses prior practice does not itself constitute
impermissible intent.

This is especially true not only where

evidence suggests that the reversal was the result of a partisan
split,

but

espouses

a

more

importantly

legitimate

reason

where
to

a

new

change

political

the

law.

majority
Here,

as

previously detailed, see supra Part III.B.1., the reasons the
proponents offered for the elimination of SDR were identified at
some length in the SBOE’s 2009 report to the General Assembly.
Plaintiffs also argue that the sponsors of HB 589 sought
data from the SBOE on the potential racial impact of some of its
provisions, but the evidence is sparse as to SDR.

Plaintiffs

note that on March 5, 2013, the various House sponsors of HB 589
sent an email to the SBOE asking for a “cross matching of the
59

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.”
(J.A. at 1713.)
ID

provisions

This evidence seems to relate only to the voter
then

under

consideration.

The

legislators

additionally stated that they “would need to have that subset
broken down into different categories within each county by all
possible demographics that [the SBOE] typically captures (party
affiliation, ethnicity, age, gender, etc.).”

(Id.)

The SBOE

sent the data in a large spreadsheet the next day.

(J.A. at

1714-81.)

On March 28, Representative Lewis sent a ten-page

letter

Director

to

inquiries

Bartlett

regarding

the

containing

SBOE’s

January

nearly
2013

100

numbered

conclusion

612,955 registered voters lacked a qualifying photo ID.
at 3128-37.)

that
(J.A.

One of the inquiries mentioned race, asking the

SBOE to “provide the age and racial breakdown for voters who do
not have a driver’s license number listed.”

(J.A. at 3131.)

On

April 11, Director Bartlett sent a 19-page response with an
attached

spreadsheet

that

included

the

requested

race

data.

(J.A. at 3148-66.)

That same day, the Speaker’s general counsel

emailed

asking

the

SBOE,

for

additional

race

data

regarding

people who requested absentee ballots in 2012 (J.A. at 3234),
which was provided (J.A. at 3235-46).

60

As to SDR, Kim Strach emailed some data to Representative
Lewis, one of the bill’s House sponsors, on July 25, the day of
the House concurrence vote.

(J.A. at 3265.)

This data included

the verification rates for SDR in the 2010 and 2012 elections
and information about the type of IDs presented by same-day
registrants.

(J.A. at 3267-84.)

It also included spreadsheets

that contain race data for individual same-day registrants and
whether those registrants were verified.

(J.A. at 3278, 3280.)

This was the same data that Defendants relied upon during the
preliminary injunction hearing to demonstrate that SDR resulted
in the counting of over a thousand ballots of voters who were
never

properly

verified.

Thus,

as

to

SDR,

there

is

little

evidence from which to infer that the General Assembly’s course
of

action

was

based

on

research

of

the

racial

effect

or

implications of its repeal.
Plaintiffs also argue that the General Assembly proceeded
to pass the bill even after opponents cited the disproportional
use of SDR by black North Carolinians.

Plaintiffs rely on a

declaration from Senator Stein stating that during Senate debate
he emphasized that in 2012 nearly 100,000 people registered with
SDR, and that 34% were minority.

(J.A. at 190.)

The Senate

transcript reveals that Senator Stein mentioned the first figure
but not the minority participation; however, he did refer to SL
2013-381

several

times

as

“disproportionately
61

affect[ing]

minorities.”41

(See Doc. 134-4 at 253-55, 259.)

He argued that

the State’s registration cut-off was instituted historically to
minimize African-American participation and that by eliminating
SDR, “you all are going back to the sorry old history that we
should not embrace.”42

(Id. at 255.)

While Plaintiffs rely heavily on these facts to establish
improper intent, the United States also argues that the court
should infer improper intent from the General Assembly’s failure
to solicit expert opinions about
(Doc. 166 at 219.)
plaintiffs’

the impact of the changes.

Cf. Brown, 895 F. Supp. 2d at 1248 (noting

urging

to

infer

intent

from

the

Florida

legislature’s failure to conduct any study or analysis of the
effect the changes prior to amending the statute).

When the

court asked during the hearing if it would have been better or
worse not to have asked for any race data, the United States
responded
consider.”

that

“[i]t

would

(Id. at 219-20.)

be

just

an

additional

factor

to

Consequently, Plaintiffs’ effort

41

Although Senator Stein attached a document to his declaration
containing statistics regarding African-American use of SDR in the
2012 general election (J.A. at 198), there is no indication in the
legislative record that this was shared with Senate members during the
debate.
The record refers elsewhere only to three charts – all
related to early voting - that Senator Stein shared during debate.
(J.A. at 198-200.)
42

Whatever the original purpose of a registration cut-off, the Supreme
Court, as noted, recognized in 1973 that the States have an interest
in closing voter rolls at a reasonable time before Election Day.
Marston, 410 U.S. at 681.

62

to

simultaneously

rely

on

the

presence

and

absence

of

race

information presents a challenge.
Discriminatory

purpose

“implies

more

than

intent

volition or intent as awareness of consequences.”

as

Personnel

Adm’r of Mass. v. Feeney, 442 U.S. 256, 279 (1979).

“It implies

that the decisionmaker . . . selected or reaffirmed a particular
course of action at least in part ‘because of,’ not merely ‘in
spite of,’ its adverse effects upon an identifiable group.”
To

infer

from

the

opponents’

objections

that

the

Id.

General

Assembly passed the bill because of the objections is difficult
on this record.
contemporaneous
intent.

This is especially true where some of the
legislative

criticism

eschewed

any

improper

(See, e.g., Doc. 134-4 at 204 (statement of Sen. Bryant

clarifying that he was not trying to accuse Republicans of being
racist,
impact

but

only

regardless

legislators

knew

disproportionately
contrasted
whites

and

unverified

by

stating

that

of

purpose).43

its

or
by

evidence

that
voters’

it

may

the

have

bill
In

known

was

ballots

SDR

causing
to

43

be

was
a

sum,

have

a

racial

evidence

that

African-Americans
that

would

SDR

was

in

the

that

State

used

overwhelmingly

significant

counted.

used

The

number

is
by
of

historical

To the extent Plaintiffs point to evidence of race data on HB 589
generally, it is relevant that during the Senate debate, proponents of
the bill emphasized that African-American turnout increased in Georgia
after the State passed a voter ID law. (Doc. 134-4 at 158-59.)

63

background of the decision, therefore, presents a conflicting
picture.
c.
The

next

Sequence of events leading to decision

factor

is

“[t]he

specific

sequence

of

events

leading up to the challenged decision,” including whether the
decision

was

a

“[d]eparture[]

from

sequence” or if “factors usually

the

normal

considered important . . .

would strongly favor” a contrary decision.
429 U.S. at 267.

procedural

Arlington Heights,

Plaintiffs describe the procedure used in the

passage of SL 2013-381 as “irregular,” “highly expedited,” and
“unorthodox.”
(1)

the

(Doc. 98-1 at 62.)

original

version

of

HB

Particularly, they note that
589

that

left

the

House

of

Representatives in April concerned only voter ID; (2) the Senate
took

no

action

on

HB

589

until

after

the

Supreme

Court’s

decision in Shelby County; (3) Senator Apodaca announced the day
after

Shelby

without

County

disclosing

the
the

intent
contents

to
of

go

with

that

the

bill;

“full
(4)

bill”

the

new

provisions were inserted into HB 589 in a process known as “gutand-amend,” and the expanded bill was not posted online until
the night before the Senate Rules Committee meeting; (5) after
the bill passed the Senate, the House received it that same
night and concurred in the changes without referring the bill to
a Committee of the Whole or any other committee; (6) of the
proponents of the bill, only Representative Lewis spoke in favor
64

of it during the House session, while every Democratic opponent
spoke against it; and (7) the bill represented what Plaintiffs
characterize as a reversal of course from the previous decade of
North Carolina legislation on election laws.
that

HB

589

complied

with

all

General

Defendants contend
Assembly

rules

and

procedures and that several other bills have followed similar
procedural
redistricting

paths,

particularly

legislation

passed

the
by

the

controversial
then

2003

Democratically-

controlled legislature.
A reading of the complete legislative record reveals that,
although the procedural path of the bill left room for criticism
by opponents, any inference of impermissible intent is marginal.
As Plaintiffs must concede, the General Assembly complied with
all of its rules during the passage of SL 2013-381.

(See Doc.

164 at 28-29 (statement of United States’ counsel).)
raised a point of order.

No one

Moreover, testimony established that

the process known as “gut-and-amend” used to transform the voter
ID bill into the omnibus bill that became SL 2013-381 is not
uncommon in the General Assembly.

(Id. at 133 (testimony of

Senator Dan Blue, an opponent of the bill, acknowledging that
gut-and-amend

happens

General Assembly).)

“quite

a

bit”

and

“too

often”

in

the

Such a process occurs because the General

Assembly must meet a “cut-off” date – known as the “cross-over
date” - by which a piece of legislation must be approved by one
65

House lest it die for the remainder of the session.
131-33.)

(Id. at

Plaintiffs’ legislator-witnesses admitted that it is

not uncommon for a bill to return to its originating house with
significant material not originally part of the bill.

(Id. at

133; Doc. 165 at 85-88 (testimony of Rep. Glazier).)

In this

regard, Plaintiffs’ real contention seems to be that the process
for HB 589 was unusual for a bill having the significance they
contend it did and the majority’s failure to give deference to
existing political relationships with those on the other side of
the aisle.
was

(See Doc. 165 at 67 (testimony of Rep. Glazier: “I

shocked

by

it,

not

by,

in

some

respects,

some

of

the

provisions, but by the -- and, again, my comments on the floor
that night made it clear -- by the process”), 69 (“[t]he process
this bill got was nothing more than what we give to a golf cart
bill”); J.A. 179 ¶ 3 (declaration of Sen. Stein describing the
Senate

proceedings

as

“irregular

for

a

bill

of

this

magnitude”).)
The fact that the Senate acted after Shelby County favors
Plaintiffs, but it does not bear the full significance that they
attribute to it.

That decision greatly altered the burden of

proof calculus for a legislative body considering changes to
voting laws.

It would not have been unreasonable for the North

Carolina Senate to conclude that passing the “full bill” before
Shelby

County

was

simply

not
66

worth

the

administrative

and

financial cost of seeking permission from the United States.
Proponents were aware that – as opponents sharply reminded them
during debate – they were still obliged to comply with Section 2
and the Constitution.

(Doc. 134-4 at 153, 192.)

Plaintiffs’ contention that only one legislator spoke in
favor of the bill is inaccurate.
Representative
concur
spoke

in
in

Lewis

the

spoke

Senate’s

favor

of

the

in

the

changes,
bill

While it is true that only

both

House
several
during

meeting and during the two floor sessions.
134-4.)

before

the

Republican
the

Rules

vote

to

Senators
Committee

(See generally Doc.

Additionally, the initial bill was debated over several

committee sessions and a floor session in March and April 2013.
(See

generally

nefarious

J.A.

that

no

at

2388-2451.)

Republican

in

It
the

is

not

House

necessarily
other

than

Representative Lewis rose to speak in favor of the bill when it
was late in the evening, the caucus knew it had the votes to
pass

the

bill,

and

the

end

of

the

legislative

session

was

approaching.44
Plaintiffs further rely on the fact that the House voted to
concur in the Senate’s changes without forming a Committee of
the

Whole

or

referring

the

bill

44

to

another

committee.

The

Indeed, an opponent of the bill candidly testified at the hearing
that had he been the lawyer for the Republicans, he would have
similarly advised the strategy to avoid further discussion. (Doc. 165
at 70.)

67

record establishes that forming a Committee of the Whole is
quite rare.

As noted, Representative Moore stated that “[i]t

would be pointless to do so, because the Committee of the Whole
would be the entire House sitting as a Committee and then later
simply sitting as the House.”
also

adduced

evidence

Democratically-controlled
returned

(J.A. at 2507-08.)

during

the

majorities

politically-sensitive

bills

hearing
of

the

for

Defendants

that
General

concurrence

previous
Assembly
as

to

extensive changes without referring the substitute bill to a
committee.45
The Senate debated the bill over two separate sessions and
a Rules Committee meeting, debated over a dozen amendments and
added several (including two by Democrats), and each opponent
was given the floor and sufficient time to speak and explain his
or her objections.

The Senate also granted time to adjourn

between debate to allow members to caucus and consider further
amendments.

(Doc. 134-4 at 123-25.)

At the end of the Senate

debate, Senator Nesbitt – a strong opponent of the bill – stated
“[w]e’ve had a good and thorough debate on this bill over two
45

Representative Glazier testified that the 2003 redistricting
legislation, affecting all voters in the State, returned to the House
following significant changes in the Senate.
The Democraticallycontrolled House voted to concur in the Senate’s changes without
additional committee hearings.
(Doc. 165 at 83-86.)
He also
testified that controversial bills regarding Sharia law and regulatory
reform were also returned to the House on a motion to concur. (Id. at
87-89.)

68

days,” and “I think we’ve reviewed the bill in great detail.”
(Id. at 315-16.)

When the bill returned to the House, every

opponent was given time to speak, some were given extensions,
and many did not even use their full allotment of time.
at 2615.)

(J.A.

While the proceedings moved quickly, the court cannot

say that it is uncommon for a controversial bill to be passed
near the end of a legislative session.
As for the remaining procedural argument, Plaintiffs point
to the fact that the bill expanded to 57 pages before the Rules
Committee meeting.

This is a significant difference.

However,

a review of the bill reveals that apart from the original voter
ID provisions, a significant portion of those 57 pages consisted
of existing law.

Moreover, several component parts – including

the reduction of early voting and elimination of SDR – had been
included

in

other

bills

introduced

in

the

around the same time as the original HB 589.46
inclusion

as

part

of

the

“gut-and-amend”

unusual.

(Doc. 165 at 88-89.)

House

and

Senate

As noted, their
process

was

not

As a political matter, it may

have been preferable, even highly so, to put the bill on a
slower track, but the court cannot say that the manner of the
46

See HB 451 (would have reduced early voting to ten days, eliminated
SDR, and eliminated Sunday voting); HB 913 (would have eliminated SDR
and enhanced observers’ rights); SB 428 (would have eliminated SDR and
reduced early voting to ten days); and SB 666 (would have eliminated
SDR and reduced early voting to ten days). (Doc. 134-3 ¶ 23.)

69

proceedings in the General Assembly raises a strong inference of
discriminatory intent.
d.

Legislative history

Arlington Heights also instructs the court to consider the
legislative history of the decision, especially “contemporaneous
statements by members of the decisionmaking body, minutes of its
meetings, or reports.”

429 U.S. at 268.

Much of this has been

addressed in the preceding discussion regarding the debate of
the bill.

Plaintiffs have not identified any comment, and the

court has found none, of a racial nature by any supporter of the
bill

during

the

legislative

process.47

Thus,

the

fourth

Arlington Heights factor weighs in favor of Defendants.
e.
Plaintiffs

State interest
argue

that

the

State

invented

rationales to defend the provisions of SL 2013-381.

post-hoc

To be sure,

“in some circumstances it is reasonable to infer discriminatory
intent based on evidence of pretext.”
at 355.

Florida, 885 F. Supp. 2d

As to SDR, however, the principal interest the State

47

Plaintiffs argued at the hearing that the court should draw an
adverse inference from the fact that Defendants have asserted
legislative privilege and refused to disclose certain communications
that Plaintiffs argue might be probative of intent.
This would be
inappropriate.
Drawing such an inference would be tantamount to
punishing a party for asserting a privilege – especially one that as
of yet has not been determined to be unavailable.
It would also be
contrary to the court’s prior discovery ruling.
(Doc. 93 (finding
that the legislative privilege is qualified).)
Because of the
assertion of privilege, it is not unusual therefore that Defendants
did not call any legislators to testify.

70

asserts in this litigation – the verification problem described
above – had been identified by the SBOE in 2009 and was raised
more than once by Senator Rucho.
45, 87.)

(J.A. at 1533; Doc. 134-4 at

The legislative record and the evidence presented at

the hearing falls short of demonstrating that Senator Rucho’s
proffered reason likely was not the General Assembly’s actual
reason for eliminating SDR.
In the totality of the circumstances, Plaintiffs’ evidence
that

the

General

Assembly

acted

at

least

in

part

with

discriminatory animus certainly raises suspicions and presents
substantial questions.
compelling

evidence

But it is opposed with at least equally

that

the

legitimate State interest.

lawmakers

acted

rather

they

must

a

In this circuit, Plaintiffs must

demonstrate more than “only a grave or serious
litigation”;

for

“clearly

likely succeed on the merits.”

demonstrate

question

that

[they]

for
will

Real Truth About Obama, 575 F.3d

at 347 (emphasis in original).

Where such competing evidence

exists, especially where Defendants have presented evidence that
the State interest was eliminating a practice that permitted (if
not encouraged) a not insignificant number of unverified ballots
to be counted, the court cannot say at this preliminary stage
that it is likely that racial animus was a motivating factor for
the

General

Cnty.,

316

Assembly’s
F.

Supp.

2d

elimination
at

306
71

of

SDR.

(declining

See
to

Charleston

determine

that

invidious
Carolina

discrimination
county’s

was

decision

a

motivating

to

institute

factor
an

where

at-large

South
voting

system “might reasonably be explained in the context of either
of

the

historical

Defendants,
Court

will

explanations

respectively”
not

and

disparage

advanced

concluding
[the

by

Plaintiffs

therefore

legislature]

that

without

and
“the
more

compelling evidence, particularly in light of other reasonable
and

historical

explanations”

for

the

action);

Brown,

895

F.

Supp. 2d at 1247 (denying preliminary injunction of reduction of
early-voting days where Plaintiffs proffered evidence of unusual
legislative

procedures

and

a

racial

statement

made

by

a

legislator, while the State possessed a legitimate interest).48

48

In Brown, the court did not find discriminatory intent even where
(1) a Senator stated on the floor that “he did not want to make it
easier to vote, but rather that it should be harder to vote - as it is
in Africa,” 895 F. Supp. 2d at 1247 (internal quotation marks
omitted); (2) members of the public were limited to three minutes of
public comment during the Senate Budget Committee Hearing, id. at
1246; (3) proponents used a “strike-all” amendment to introduce
changes the day before amendments were taken up by the Senate Rules
Committee, “such that there was less time to analyze and prepare
comments regarding the proposed changes,” id. at 1246-47; (4)
amendments were effective immediately, rather than at some postenactment date, id. at 1246; and (5) there was some evidence that
members of the House and Senate had once participated in a meeting
where “not letting blacks vote” was discussed, id. at 1248-49.
The
court found that the Senator’s “single statement [was] not enough to
suggest that his purpose, whatever it was, represented the purpose of
the Florida legislature as a whole.
Accordingly, . . . the
‘contemporaneous statements’ factor [did] not materially weigh in
favor of a finding of discriminatory purpose.”
Id. at 1248 (quoting
Florida, 885 F. Supp. 2d at 355). It also concluded that the State’s
interests in increasing early-voting flexibility and efficiency were
legitimate and that the mere fact the legislature did not conduct a
study of the effect the changes was insufficient to warrant a finding

72

Therefore, Plaintiffs’ motions for preliminary injunction based
on their intent claims under Section 2 and the Fourteenth and
Fifteenth Amendments will be denied.
3.

Anderson-Burdick

The private Plaintiffs have asserted Fourteenth Amendment
claims under the line of Supreme Court Equal Protection cases
specifically applicable to voting restrictions.

In Harper v.

Virginia State Board of Elections, 383 U.S. 663 (1966), the
Court struck down Virginia’s poll tax

in State elections

violative of the Equal Protection Clause.
majority

hinted

that

because

voting

is

a

as

In so doing, the
fundamental

right,

strict scrutiny applies to all State restrictions on that right.
See id. at 670.

However, later decisions established that,

because “[e]lection laws will invariably impose some burden upon
individual voters,” they are subjected to strict scrutiny only
when they impose a “severe” burden.
34.

Burdick, 504 U.S. at 433–

Two freedom-of-association cases, Burdick and Anderson v.

Celebrezze, 460 U.S. 780 (1983), established a balancing test
for

election

laws

that

do

not

severely

burden

First

and

of discriminatory intent.
Id. at 1248.
With respect to the
procedure, there was scant evidence it had been unusual, as “strikeall” amendments had been used in the past and the legislative process
as a whole allowed for extensive public comment. Id. at 1247 (citing
Florida, 885 F. Supp. 2d at 382-84). Finally, there was no evidence
connecting the alleged meeting to the enactment of the early-voting
changes.
Id. at 1249.
Thus, the court found that the plaintiffs
could not make a clear showing of likelihood of success on the merits
on their intent claim. Id.

73

Fourteenth Amendment rights.
A court considering a challenge to a state election
law must weigh “the character and magnitude of the
asserted injury to the rights protected by the First
and Fourteenth Amendments that the plaintiff seeks to
vindicate” against “the precise interests put forward
by the State as justifications for the burden imposed
by its rule,” taking into consideration “the extent to
which those interests make it necessary to burden the
plaintiff’s rights.”
Burdick, 504 U.S. at 434 (quoting Anderson, 460 U.S. at 789).49
In Crawford v. Marion County Election Board, 553 U.S. 181
(2008), the Court extended the Anderson-Burdick balancing test
outside the context of the First Amendment and applied it to
State election procedures as a whole.

In upholding Indiana’s

voter ID law, the plurality stated that “however slight [a]
burden may appear . . . it must be justified by relevant and
legitimate state interests ‘sufficiently weighty to justify the
limitation.’”

553

U.S.

at

191

(plurality

opinion)

Norman v. Reed, 502 U.S. 279, 288–89 (1992)).

(quoting

Justice Scalia,

joined by Justices Thomas and Alito, agreed that the AndersonBurdick framework applied to the voter ID law.

Id. at 204-05

(Scalia, J., concurring in the judgment).
Thus, the court first must determine whether the burden
imposed by SL 2013-381’s elimination of SDR is severe.

49

If it

Burdick upheld Hawaii’s prohibition on write-in voting, while
Anderson struck down an early-filing deadline for independent
candidates.

74

is, it must be “narrowly drawn to advance a state interest of
compelling

importance.”

Burdick,

Norman, 502 U.S. at 289).
‘reasonable,

504

U.S.

at

434

(quoting

Otherwise, if a law “imposes only

nondiscriminatory

restrictions’

upon

[voters’

Fourteenth Amendment rights], ‘the State’s important regulatory
interests

are

restrictions.”

generally

sufficient

to

justify’

Id. (quoting Anderson, 460 U.S. at 788).

the
Under

this framework, the court must balance North Carolina’s precise
interests against the burden imposed by the elimination of SDR.
Plaintiffs’ claims under this test are not based on race,
but

on

their

right

to

vote

generally.

(Doc.

167

at

122.)

Plaintiffs do not argue that strict scrutiny applies in this
case and thus concede that the repeal of SDR does not create a
severe burden on the right to vote.

In any event, the Court

essentially resolved this question in Crawford.
recognized

that

inconvenience

of

“[f]or

most

making

a

voters

trip

to

who
the

The plurality

need

them,

[Bureau

of

the
Motor

Vehicles], gathering the required documents, and posing for a
photograph surely does not qualify as a substantial burden on
the right to vote, or even represent a significant increase over
the

usual

opinion).

burdens
Even

of

voting.”

though

the

553

U.S.

plurality

at

198

recognized

(plurality
that

the

requirements may create a special burden for some voters, it
found

that

it

is

unlikely

the
75

voter

ID

law

“would

pose

a

constitutional problem unless it is wholly unjustified.”
199.

Id. at

The burden imposed by the repeal of SDR – that is, the

requirement

that

voters

register

at

least

25

days

before

Election Day – is even less than the one at issue in Crawford.
This is particularly true because voters may register without
making a trip anywhere; they simply must mail the proper form to
their CBOE along with a copy of a HAVA-compliant ID.
205

(Scalia,

J.,

concurring

in

the

judgment)

See id. at

(“Ordinary

and

widespread burdens, such as those requiring ‘nominal effort’ of
everyone, are not severe.” (quoting Clingman v. Beaver, 544 U.S.
581,

591

(2005)).

Thus,

the

Anderson-Burdick

framework

is

applicable here.
It is equally clear that, under Crawford, a requirement to
register 25 days before Election Day constitutes a “reasonable,
nondiscriminatory restriction[]” on the right to vote.

Id. at

190 (plurality opinion) (quoting Burdick, 504 U.S. at 434).
law’s

reasonableness

overwhelming

majority

is
of

evidenced
States

have

by

the

chosen

fact
to

The

that

close

an

their

registration books some time before Election Day, and that this
choice

has

been

sanctioned

both

by

the

Supreme

Court,

see

Marston, 410 U.S. at 681, and by Congress in the NVRA, 42 U.S.C.
§ 1973gg-6(a)(1).

The burden is also nondiscriminatory in the

sense that it applies to every voter without regard to race or
other classification.

See Crawford, 553 U.S. at 205 (Scalia,
76

J.,

concurring

in

the

judgment).

As

such,

the

Court

has

recognized that a State’s legitimate regulatory interests are
generally sufficient to uphold such a restriction.

Burdick, 504

U.S. at 434.
Here, the slight burden imposed by the 25-day cut-off is
more

than

justified

by

the

State’s

important

interest

in

detecting fraud and ensuring that only properly verified voters
have

their

III.B.1-2.

votes

counted

at

the

canvass.

See

supra

Part

While the removal of the SDR option will affect some

voters more than others, this is not the standard upon which
voting

regulations

are

judged

under

Anderson-Burdick.

As

Justice Scalia explained in Crawford, “[t]he Indiana law affects
different voters differently, but what petitioners view as the
law’s

several

light

and

heavy

burdens

are

no

more

than

the

different impacts of the single burden that the law uniformly
imposes on all voters.”
Supreme

Court

precedents

553 U.S. at 205 (citations omitted).
“refute

the

view

that

individual

impacts are relevant to determining the severity of the burden
it imposes.”

Id.

For example, the write-in ballot prohibition

in Burdick was upheld despite the fact that it entirely deprived
the plaintiff of his right to vote for his candidate of choice.50
50

The court recognizes that the district court in Frank, in evaluating
the burden imposed by Wisconsin’s voter ID law, determined that a
burden should be assessed based upon its effect on a subgroup of
voters.
2014 WL 1775432, at *5.
The court concluded that Crawford

77

See id. at 205-06 (comparing the Burdick majority, which upheld
the prohibition after assessing the burden on voters generally,
with the dissent, which would have struck down the restriction
because of its effect on specific voters).
consider the burden on “voters generally.”

Thus, the court must
Id. at 206.

Under this standard, the burden imposed by elimination of
SDR is slight – much less severe than the burden created by the
voter

ID

law

at

issue

in

articulated

an

important

elimination

of

SDR

–

Crawford.

interest

not

As

directly

counting

votes

Defendants
served
of

have

by

those

the
whose

registrations have not been properly verified - the court finds
that Plaintiffs have not demonstrated a likelihood of success on
the

merits

on

this

portion

of

their

Anderson-Burdick

claim.

Therefore, Plaintiffs’ motion to preliminarily enjoin SL 2013381’s elimination of SDR on this basis will be denied.

did not constitute binding authority on this question because the
plurality “seemed to assume that a law could be invalid based on its
effect on a subgroup of voters.” Id. at *4. To be sure, no position
on this issue received five votes in Crawford.
But this conclusion
seems to be at odds with Justice Scalia’s observation that “Clingman's
holding that burdens are not severe if they are ordinary and
widespread would be rendered meaningless if a single plaintiff could
claim a severe burden.” Crawford, 553 U.S. at 206. Such a conclusion
also appears inconsistent with the result in Burdick itself, as the
plaintiff who sought to vote for a write-in candidate was entirely
disenfranchised by the restriction. The Wisconsin Supreme Court also
declined to follow the analysis in Frank, concluding that doing so
would “stand[] the Anderson/Burdick analysis on its head.” Milwaukee
Branch of the NAACP, 2014 WL 3744073, at *8 n.9.

78

4.

Twenty-Sixth Amendment

Intervenors
Twenty-Sixth

challenge

Amendment,

the

which

elimination
provides

that

of

SDR

under

“[t]he

right

the
of

citizens of the United States, who are eighteen years of age or
older, to vote shall not be denied or abridged by the United
States

or

by

any

State

on

account

of

age.”

Because

the

elimination of SDR allegedly impacts voters in the 18- to 24year-old

age

bracket

disproportionally,

Intervenors

urge

the

court to apply the Arlington Heights framework to a claim of age
discrimination

in

voting

under

the

Twenty-Sixth

Amendment.

While it is true that the Twenty-Sixth Amendment was patterned
after the Fifteenth, see Walgren v. Howes, 482 F.2d 95, 101 (1st
Cir. 1973), no court has ever applied Arlington Heights to a
claim of intentional age discrimination in voting.

Nor has any

court considered the application of the Twenty-Sixth Amendment
to the regulation of voting procedure,
whether to offer SDR.

such as

the decision

Thus, Intervenors’ Twenty-Sixth Amendment

arguments present an issue of first impression in the federal
courts.
However, it is unnecessary to decide at this stage whether
Intervenors are likely to succeed on this novel claim.

Unlike

the Twenty-Sixth Amendment cases cited to the court, Intervenors
do not proceed as a class, but rather as ten individuals.

Cf.

Walgren v. Bd. of Selectmen of Town of Amherst, 373 F. Supp.
79

624, 625 (D. Mass. 1974), aff’d by 519 F. 2d 1364 (1st Cir.
1975); Sloane v. Smith, 351 F. Supp. 1299, 1300 (M.D. Pa. 1972);
see also, e.g., McCoy v. McLeroy, 348 F. Supp. 1034, 1036 (M.D.
Ga. 1972).
themselves

Consequently, they must present evidence that they
are

entitled

to

the

relief

sought.

They

have

presented no evidence that would permit the court to conclude
that any of them is likely to suffer any irreparable harm before
trial.

Indeed, counsel for Intervenors indicated at the hearing

that he did not intend to produce any evidence in support of
Intervenors’

claims

because

they

Defendants.51

(Doc. 164 at 31.)

had

been

unrebutted

by

Without evidence of irreparable

harm, however, the court cannot grant injunctive relief to a
particular plaintiff.

Thus, Intervenors’ motion for preliminary

injunction against SL 2013-381 because it allegedly violates the
Twenty-Sixth Amendment will be denied.
C.

Out-of-precinct Provisional Voting

In 2002, Congress passed HAVA, 42 U.S.C. §§ 15301-15545.
Under HAVA, states are required to offer provisional ballots to
Election Day voters who changed residences within 30 days of an
election but failed to report the move to their CBOE.
51

See 42

The only evidence Intervenors presented are three declarations
attached to their supplemental brief on the issue of standing to raise
their challenge to the elimination of pre-registration.
(See Docs.
159-1 through 159-3.) These declarations contain no evidence that any
Intervenor is likely to suffer irreparable harm absent an injunction
requiring the State to continue offering SDR.

80

U.S.C. § 15482(a). However, such provisional ballots are only
required to be counted “in accordance with State law.”
§ 15482(a)(4).
Session

Law

Id.

After HAVA, in 2003 the General Assembly passed

2003-226

in

order

to

bring

North

Carolina

into

compliance with federal law.
Soon after, two plaintiffs challenged the authority of the
SBOE

to

count

provisional

ballots

cast

outside

the

voter’s

correct precinct – referred to as “out-of-precinct provisional
ballots.”

The

North

Carolina

Supreme

Court

counting of such ballots violated State law.

held

that

the

James v. Bartlett,

607 S.E.2d 638, 642 (N.C. 2005) (“The plain meaning of [N.C.
Gen. Stat. § 163–55 (2003)] is that voters must cast ballots on
election day in their precincts of residence.”).

In response,

the General Assembly passed Session Law 2005-2, amending Section
163-55

to

remove

the

requirement

that

voters

appear

proper precinct on Election Day in order to vote.
Sess.

Law

(2006)).

2,

§

2

(codified

at

N.C.

Gen.

Stat.

in

the

2005 N.C.
§

163-55(a)

The law provided that “[t]he [CBOE] shall count [out-

of-precinct provisional ballots] for all ballot items on which
it determines that the individual was eligible under State or
federal law to vote.”

Id. § 4 (codified at N.C. Gen. Stat.

§ 163-166.11(5) (2006)).
Passage

of

SL

2013-381

reinstated

the

James

court’s

interpretation of State law by prohibiting the counting of out81

of-precinct

provisional

ballots.

Section

163-55(a)

now

provides: “Every person born in the United States, and every
person who has been naturalized, and who shall have resided in
the State of North Carolina and in the precinct in which the
person offers to vote for 30 days next preceding an election,
shall, if otherwise qualified as prescribed in this Chapter, be
qualified to vote in the precinct in which the person resides.”
Section

163-166.11(5)

provides

that

a

“ballot

shall

not

be

counted if the voter did not vote in the proper precinct under
[section] 163-55, including a central location to be provided by
that section.”

Thus, if a voter appears at the wrong precinct

on Election Day, he or she will have to get to the proper
precinct before the close of the polls in order to cast a valid
vote.
All Plaintiffs move to enjoin the prohibition on counting
out-of-precinct provisional ballots.

They rely on the same four

legal theories, which will be addressed in turn.
1.

Section 2 results claims

In order to show likelihood of success on the merits of
their Section 2 results claims, Plaintiffs must show that the
system

put

precinct

in

place

provisional

by

SL

2013-381

ballots

with

interacts

respect

with

to

out-of-

historical

and

current conditions to deny black North Carolinians equal access
to the polls.

As noted above, for purposes of these motions the
82

court

accepts

that

discrimination

North

against

Carolina’s

blacks

has

socioeconomic disparities with whites.

history

of

official

resulted

in

current

Particularly relevant

for the purposes of out-of-precinct voting are the following:
(1) between the years 2006 and 2010, an average of 17.1% of
blacks in North Carolina moved within the State, as compared to
only 10.9% of whites (J.A. at 1228); and (2) 27% of poor blacks
in North Carolina lack access to a vehicle, compared to 8.8% of
poor

whites

(J.A.

at

1155).

Also,

the

court

accepts

the

determinations of Plaintiffs’ experts that the prohibition on
counting

out-of-precinct

provisional

disproportionally affect black voters.

ballots

will

(E.g., J.A. at 728-34

(report of Plaintiffs’ expert Dr. Allan J. Lichtman), 868-69,
878

(report

of

Dr.

Stewart).)

However,

Plaintiffs

have

nevertheless not shown an inequality of opportunity under the
totality of the circumstances and thus a likelihood of success
on the merits of this claim.
First,

although

failure

to

count

out-of-precinct

provisional ballots will have a disproportionate effect on black
voters, such an effect will be minimal because so few voters
cast them.

According to Dr. Stewart’s calculations, which the

court accepts, approximately 3,348 out-of-precinct provisional
ballots cast by black voters were counted to some extent in the
2012 general election.

(J.A. at 878.)
83

This represents 1.16% of

the votes cast by black voters on Election Day.52

(Id.)

Because

70.5% of black voters voted early in 2012, the total number of
blacks utilizing out-of-precinct voting represents 0.342% of the
black vote in that election.
also

estimates

that

white

(J.A. at 616, 878.)
voters

cast

6,037

Dr. Stewart

out-of-precinct

provisional ballots that were at least partially counted in that
same

election,

(J.A. at 878.)

accounting

for

0.44%

of

Election

Day

votes.

After accounting for the percentage of white

voters that voted early, the total share of the overall white
vote that voted out-of-precinct was 0.21%.53

(J.A. at 616, 878.)

These numbers suggest that a system prohibiting the counting of
out-of-precinct provisional ballots will not result in unequal
access to the polls; nearly 99.7% of black voters in 2012 either
voted in the correct precinct on Election Day or utilized early
voting.

Moreover, the existence of early voting without regard

to precinct tends to reduce any inequality even further, because
those who would vote out-of-precinct have ample opportunity to
vote at a location more convenient to them.

(See J.A. at 2635

52

Voters may only cast out-of-precinct votes on Election Day because
early voters may present themselves at any early-voting site in the
county in order to vote.
53

The numbers were similar during the 2010 general election, when even
fewer out-of-precinct ballots were cast.
(See J.A. at 731 (noting
that a total of 2,635 out-of-precinct provisional ballots were cast in
2010 and that 56.5% of those ballots with available racial information
were cast by black voters).)

84

(noting

seven

different

ways

to

vote

without

respect

to

precinct).)
Here, too, the court is concerned with the potential scope
of a determination that North Carolina’s failure to partially
count

out-of-precinct

votes

violates

Section

2.

As

noted

earlier in the context of SDR, the Section 2 results standard is
not retrogression, but an assessment of equality of opportunity
under the current system.

The fact that North Carolina counted

out-of-precinct provisional ballots for four federal election
cycles before reversing course, while relevant for the purposes
of

determining

disproportionate

impact,

ultimate inquiry under Section 2.
North

Carolina

maintaining

a

is

in

system

provisional ballots

violation
that

does

does

not

affect

the

Thus, a determination that
of
not

Section
count

2

merely

for

out-of-precinct

could place in jeopardy the laws of

the

majority of the States, which have made the decision not to
count such ballots.54

A contrary interpretation would import the

54

See Ala. Code §§ 17-9-10, 17-10-2(b)(2); Ariz. Rev. Stat. Ann. § 16584; Ark. Code Ann. § 7-5-308(d)(2); 108-00-9 Ark. Code R. § 909;;
Del. Code Ann. tit. 15, § 4948(h)(7); Fla. Stat. § 101.048(2)(b); Haw.
Code R. § 3-172-140(c)(3); Ind. Code § 3-11.7-5-3(a); 31 Ky. Admin.
Regs. 6:020(14); Me. Rev. Stat. tit. 21-A, § 673(A)(1)(A)(3)(c); Mass.
Gen. Laws ch. 54, § 76C(d); Minn. Stat. § 201.016 (making voting
outside the proper precinct after receiving an initial violation
notice a petty misdemeanor); Miss. Code Ann. §§ 23-15-571(3)(a), (d),
23-15-573; Mo. Rev. Stat. § 115.425; Neb. Rev. Stat. § 32-1002(5)(e);
Nev. Rev. Stat. § 293.3085(4); N.H. Rev. Stat. Ann. §§ 659:12,
659:27(II), 659:27-a; N.Y. Elec. Law § 8-502; Okla. Stat. tit. 26, §
7-116.1(C); S.C. Code Ann. §§ 7-13-820, 7-13-830; S.D. Codified Laws §

85

retrogression standard of Section 5 into Section 2 cases, making
a plaintiff’s case at least partially dependent on whether a
State chose to count out-of-precinct provisional ballots at some
point.

This cannot be the proper standard under Section 2.

Finally,

the

State

has

articulated

a

legitimate

administrative interest in requiring Election Day voters to vote
in their proper precinct.

The North Carolina Supreme Court said

as much in James, when it noted that “our State’s statutory
residency requirement provides protection against election fraud
and permits election officials to conduct elections in a timely
and efficient manner.”

James, 607 S.E.2d at 644.

The unanimous

court also found that “[i]f voters could simply appear at any
precinct to cast their ballot, there would be no way under the
present system to conduct elections without overwhelming delays,
mass

confusion,

and

the

potential

for

fraud

validity and integrity of our elections process.”

that

robs

the

Id.

The advantages of the precinct system are significant
and numerous: it caps the number of voters attempting
to vote in the same place on election day; it allows
each precinct ballot to list all of the votes a
citizen may cast for all pertinent federal, state, and
local elections, referenda, initiatives, and levies;
it allows each precinct ballot to list only those
12-20-5.1; Tenn. Code Ann. § 2-7-112(a)(3)(B)(iii), (v); Tex. Elec.
Code Ann. § 63.011(a); Vt. Stat. Ann. tit. 17, § 2555(1)(C); Va. Code
Ann. § 24.2-653(B); W. Va. Code § 3-1-41(d); Wis. Stat. §§ 6.92, 6.94;
see also State ex rel. Painter v. Brunner, 941 N.E.2d 782, 794 (Ohio
2011) (“Under Ohio law . . . only ballots cast in the correct precinct
may be counted as valid.” (quoting Sandusky Cnty. Democratic Party v.
Blackwell, 387 F.3d 565, 578 (6th Cir. 2004) (per curiam))).

86

votes a citizen may cast, making ballots less
confusing; it makes it easier for election officials
to monitor votes and prevent election fraud; and it
generally puts polling places in closer proximity to
voter residences.
Id. at 644-45 (quoting Sandusky Cnty. Democratic Party, 387 F.3d
at 569).

The State’s proffered justifications are consistent

with the observations of the James court and the Sixth Circuit.
(See Doc. 126 at 39-40.)
hearing
Montford

confirmed
of

one

Plaintiff

Moreover, testimony presented at the
of

the

North

State’s

concerns;

Carolina

A.

Phillip

Melvin

F.

Randolph

Institute testified that his organization’s GOTV volunteers take
prospective

voters

to

(Doc. 164 at 78.)

the

polls

without

regard

to

precinct.

Such activity has the potential to burden

precincts, create confusion, and lead to mistakes and election
fraud.

Because the State’s interest in the precinct system is

significant and legitimate, it cannot be tenuous.55
In
ballots,

conclusion,
ready

the

minimal

availability

of

usage

other

of

methods

out-of-precinct
of

voting

–

including early voting and mail-in absentee balloting – without
regard to precinct, and the State’s legitimate interest in the
precinct system all counsel against a Section 2 results finding.
55

As Defendants further noted at the hearing and in their brief, to
the extent voters who are recruited through GOTV efforts are not
directed to their proper precinct for reasons of convenience, out-ofprecinct voting has the potential of actually disenfranchising their
vote to the extent they cast ballots for candidates not within their
proper precinct (because such votes would not be counted). (See Doc.
126 at 40.)

87

Considering the totality of the circumstances, Plaintiffs have
not demonstrated a likelihood of success on their Section 2
results claim with respect to the counting of out-of-precinct
provisional

ballots.

Consequently,

preliminary

injunction

on

this

their

theory

of

motion

a

will

recovery

for

be

denied.
2.

Racially discriminatory intent

Plaintiffs’ Arlington Heights argument tracks the analogous
argument discussed above with respect to SDR, with one major
distinction.

Plaintiffs contend that the decision to repeal the

provisions for counting out-of-precinct provisional ballots was
racially motivated because the General Assembly made a finding
when

it

adopted

registered

the

voters

mechanism

who

happened

in
to

SL

2005-2

vote

that

“of

provisional

those

ballots

outside their resident precincts on the day of the November 2004
General

Election,

African-American.”

a

disproportionately

(J.A. at 2635.)

high

percentage

were

While it can be assumed

that the General Assembly is deemed to be aware of its prior
findings, it does not follow that any future decision to reverse
course evidences racial motivation.

This is especially true

given the legitimate interest articulated by both Defendants and
the

North

Carolina

Supreme

Court.

Moreover,

the

bill

to

“reconfirm” out-of-precinct voting was opposed by a significant

88

minority in both Houses in 2005.56
The

legislative

record

contains

motivated the opponents of SL 2005-2.57
no

more

evidence

for

the

claim

that

no

evidence

that

race

The record also contains
race

motivated

out-of-

precinct elimination in SL 2013-381 than it did with SDR, which
the court has addressed.

In fact, out-of-precinct provisional

ballots were only occasionally mentioned during the three days
of legislative debates on HB 589, while debate focused on other
provisions

such

as

voter

ID,

early

voting,

SDR,

and

the

elimination of straight-ticket voting (which is not challenged
in these cases).

Specifically, the legislative record includes

an explanation of the out-of-precinct provision in the Rules
Committee meeting that states it “basically moves the law back
to the way it was in 2005,” making it so a voter “cannot vote in
a random precinct.”

(Doc. 134-4 at 16-17.)

Opponents did not

attack the rationale for repealing out-of-precinct provisional
voting in the Senate, and only Representative Glazier mentioned

56

The bill passed the Senate 29-21 and the House 61-54.
2631-32.)
57

(J.A. at

The record indicates that the primary reason for Republican
opposition to SL 2005-2 was the General Assembly’s decision to apply
the law to elections that had already taken place.
(J.A. at 1204.)
Republicans attempted to pass an amendment that would have applied the
law only to future elections, but when that failed, “the bill rapidly
passed both houses on party-line votes.” (J.A. at 1206.) Thus, the
race data in 2005 was, on this record, apparently unrelated to the
motive of the opponents.

89

it in passing in the House.

(J.A. at 2556.)

Much like the

decisions to enact and then repeal SDR, the injection of race
data

by

itself

likelihood

of

by

opponents

discriminatory

of

the

intent

bill

when

cannot

a

create

legitimate

a

State

interest – here, one expressly recognized by the North Carolina
Supreme Court in James - animates the reversal of course.

Given

the lack of evidence regarding the consideration out-of-precinct
voting, the court cannot conclude that the legislative record is
indicative of impermissible intent.
Thus, considering the totality of the circumstances, the
court concludes that Plaintiffs have not demonstrated a clear
showing of likelihood of success on the merits insofar as racial
discrimination is alleged to have been a motivating factor in
the

decision

provisional

to

prohibit

ballots.

the

counting

Plaintiffs’

of

motion

out-of-precinct
for

preliminary

injunction on this basis, therefore, will be denied.
3.
The

Anderson-Burdick

private

prohibition

on

Plaintiffs

counting

also

challenge

out-of-precinct

under the Anderson-Burdick balancing test.

SL

2013-381’s

provisional

ballots

As the court has

already concluded with respect to SDR, because the requirement
to vote in one’s correct precinct applies to each voter equally,
the relevant burden under Anderson-Burdick is that which applies
to voters generally.

Of course, the requirement will affect
90

voters who would have voted out-of-precinct more than it will
affect

those

who

vote

early

or

who

normally

vote

at

their

precinct of residence.

But this is not the proper standard

under Anderson-Burdick.

Like the decision not to offer SDR, the

current

law

prohibiting

the

counting

of

out-of-precinct

provisional ballots “imposes only ‘reasonable, nondiscriminatory
restrictions,’” and therefore “the State’s important regulatory
interests

are

generally

sufficient

to

justify”

the

law.

Burdick, 504 U.S. at 434 (quoting Anderson, 460 U.S. at 788).
The minor nature of the burden imposed is demonstrated by
the

fact

utilized

that

than

option

the

less

to

one-half
cast

an

of

one

percent

out-of-precinct

of

voters

provisional

ballot in the 2012 general election.

Cf. Crawford, 553 U.S. at

188

that

n.6

(plurality

opinion)

(noting

the

district

court

found 99% of Indiana residents already possessed an ID meeting
the criteria under State law).
ways

to

vote,

including

during

Additionally, there are other
the

early-voting

period

and

absentee by mail, which do not require the voter to appear at
the

proper

stated,

“it

precinct.
is

but

As
a

the

North

perfunctory

Carolina

Supreme

requirement

that

Court
voters

identify their proper precinct and appear within that precinct
on election day to cast their ballots.”
645.

James, 607 S.E.2d at

Indeed, it is hard to imagine how the elimination of out-

of-precinct voting constitutes an impermissible burden when the
91

majority of States have decided, apparently lawfully, not to
offer

it.

See

supra

n.54.

Because

any

slight

burden

is

justified by an important and legitimate State interest, see
supra

Part

III.C.1,

likelihood

of

Plaintiffs

success

on

the

have
merits

Amendment Anderson-Burdick claim.

not
of

demonstrated
their

a

Fourteenth

Their motion to enjoin those

provisions on that ground, therefore, will be denied.
4.

Twenty-Sixth Amendment

Intervenors
out-of-precinct
Amendment

also

argue

provisional

because

it

that

the

ballots

has

the

violates

the

purpose

and

discriminating in voting based on age.
SDR, however, none of the

prohibition

on

counting

Twenty-Sixth
effect

of

As noted above as to

ten Intervenors

has presented any

evidence that they will likely suffer irreparable harm before
trial in the absence of an injunction.
Thus,

they

relief,

have

and

not

their

See supra Part III.B.4.

demonstrated

entitlement

motions

preliminarily

to

to

preliminary
enjoin

the

prohibition on counting out-of-precinct provisional ballots will
be denied.
D.

Early Voting

“No-excuse” early voting58 was established for even-year
general elections in North Carolina beginning in 2000. 1999 N.C.
58

“No-excuse” refers to the fact that voters need not present any
justification in order to vote before Election Day.

92

Sess. Law 455, § 1 (codified at N.C. Gen. Stat. §§ 163-226(a1),
163-227.2(a1) (2000)).

At that point, a registered voter could

present herself at the CBOE office in her county of residence
“[n]ot earlier than the first business day after the twentyfifth day before an election . . . and not later than 5:00 p.m.
on the Friday prior to that election” to cast her ballot.
Gen.

Stat.

§

163-227.2(b)

(2000).

After

the

2000

N.C.

election

cycle, the General Assembly expanded no-excuse early voting to
all elections.

2001 N.C. Sess. Law 337, § 1.

It also amended

the early-voting period so that voters could appear at the CBOE
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, CBOEs 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.59

Id. §5(b) (codified at

N.C. Gen. Stat. § 163-227.2(f) (2002)).
The

challenged

provision

59

makes

two

changes

to

the

CBOEs were, and still are, also permitted to open additional earlyvoting sites other than the CBOE office by unanimous vote of the board
members. N.C. Gen. Stat. § 163-227.2(g).

93

permissible duration of the early-voting period.

First, early

voting must now begin “[n]ot earlier than the second Thursday
before an election,” a reduction of one week of permissible
early-voting days.
at

N.C.

Gen.

2013 N.C. Sess. Law 381, Part 25 (codified

Stat.

§

163-227.2(b)).

As

such,

SL

2013-381

reduces the number of permissible early-voting days from 17 to
ten throughout the State.

Second, it eliminates the discretion

of the CBOEs to keep early-voting sites open until 5:00 p.m. on
the final Saturday before Election Day, instead mandating that
early voting end at 1:00 p.m. everywhere.

Id.

However, the decrease in permissible days is coupled with a
required increase in voting hours.

SL 2013-381 requires the

CBOEs, before the 2014 elections, to “calculate the cumulative
total number of scheduled voting hours at all sites during the
2010 . . . elections” and “ensure that at least the same number
of hours offered in 2010 is offered for [early voting] under
this

section

through

a

combination

of

hours

and

[early-voting] sites during the . . . election.”
Stat.

§

163-227.2(g2)(2).60

In

other

words,

numbers

of

N.C. Gen.

counties

must

generally offer the same number of aggregate hours of early
voting this November 2014 as they did in November of 2010.

60

The

CBOEs must make the same calculation with respect to the 2012
elections in 2016, and then must offer the same number of aggregate
hours in 2016 as in 2012. Id. § 163-227.2(g2)(1).

94

CBOEs can meet this requirement either by opening more earlyvoting sites or keeping the existing sites open for more hours,
including expanding weekend voting.

See id. § 163-227.2(f) (“A

county board may conduct [early] voting during evenings or on
weekends, as long as the hours are part of a plan submitted and
approved according to subsection (g) of this section.”).
2013-381

also

requires

that

each

early-voting

site

SL

within

a

county maintain the same hours of operation as every other site
in that county.

Id. § 163-227.2(g).

In the event a county determines that it either cannot meet
the

aggregate-hours

requirement

or

unnecessary, it may seek a waiver.

that

additional

hours

are

A CBOE may only decide to

seek a waiver “by unanimous vote of the board, with all members
present and voting.”

Id. § 163-227(g3).

The waiver request is

then transmitted to the SBOE, where it also must be approved by
a unanimous vote before a county will be granted a waiver.

Id.

Absent a waiver, counties must either open more early-voting
sites or keep existing sites open longer to satisfy SL 2013381’s aggregate-hours requirement.
All

Plaintiffs,

enforcement
Plaintiffs’

of
claims

including

SL

Intervenors,

2013-381’s

are

theories discussed above.

brought

seek

early-voting
under

the

same

to

enjoin

provisions.
four

legal

Plaintiffs’ principal arguments are

the following: (1) the reduction in early-voting days will lead
95

to long lines both during early voting and on Election Day,
deterring

black

and

young

voters

from

participating

in

the

election; (2) seven fewer days will make it harder for GOTV
operations to target black voters who need transportation to the
polls

and

otherwise

would

not

vote;

(3)

the

aggregate-hours

amendment will not compensate for the lost days because counties
cannot

add

more

hours

during

the

mid-day

times

that

voters

prefer to use, and over 30 counties obtained a waiver from the
requirement during the May 2014 primaries; and (4) the seven
lost days will result in fewer Sunday voting hours, which are
particularly

important

to

black

voters

and

GOTV

operations

because of “souls to the polls” efforts by churches.

Defendants

generally contend that the State is not required to have any
early voting and that no State action prevents black and young
voters from voting on the remaining ten days of early voting, by
absentee ballot, or on Election Day.
Even assuming, without deciding,61 that Plaintiffs can show
a likelihood of success on the merits on any of their early-

61

It is noteworthy that the United States conceded at the hearing it
has never previously taken the position that a State was in violation
of Section 2 for failing to have any, much less a particular number
of, days of early voting. (Doc. 166 at 192.) It also conceded that
it has previously pre-cleared states for significant reductions in
early-voting periods. (Id. at 223; see also Florida, 885 F. Supp. 2d
at 332 n.39 (noting that Georgia was pre-cleared for a reduction of
their early-voting period from 45 to 21 days).)
Additionally,
Plaintiffs have cited no decision from any court finding a State in

96

voting claims, they have not made the necessary clear showing of
irreparable harm during the November 2014 general election to
warrant

the

Plaintiffs’

entry
arguments

of

a

preliminary

regarding

long

injunction.

lines

are

factually with respect to the upcoming election.

not

First,
supported

Neither party

has proffered any evidence of expected turnout in the fall, but
it is undisputed that turnout will be significantly lower than
it was during the presidential elections of 2008 and 2012.62
example,

in

the

November

2008

presidential

election,

voters utilized the first seven days of early voting.
1543.)

For

706,445
(J.A. at

In the 2010 midterm, however, just 208,051 voters –

29.4% of the 2008 total – used those days.

(Id.)

There is also no evidence in the record that it is likely
that counties will not be able to handle the turnout this fall
with the remaining ten days.63

Indeed, Senator Stein’s amendment

violation of Section 2 for failing to maintain a particular number of
early-voting days.
62

The record reflects that the 2010 midterm (which hosted a contested
U.S. Senate race between the incumbent Senator and the Democratic
challenger) is the most recent comparable contest to this fall’s
election.
Although there was some speculation at the hearing that
turnout in November 2014 may exceed that in 2010 because of the
contested U.S. Senate race, no party contends that turnout will
approach presidential-year levels. See J.A. at 790 n.4 (expert report
of Dr. Stewart) (noting that turnout for 2006 and 2010 averaged 46.9%
less than that of 2008 and 2012).
63

An “important part” of Plaintiffs’ argument on longer lines is an
Internet poll of 334 North Carolina voters discussed in Dr. Stewart’s
report.
(Doc. 166 at 186-87; J.A. at 852.)
However, methodological
challenges aside, the data in that study relate to the 2008 and 2012

97

to require the same number of aggregate hours for comparable
elections, which was adopted, was designed to ameliorate the
effect

of

Americans.

any

lost

days

on

(Doc. 134-4 at 111.)

everyone,

including

African-

Moreover, in 2010, the racial

disparity in early-voting usage that was observed in 2008 and
2012 all but disappeared; the statistics show blacks used early
voting at a rate nearly comparable with that of whites during
that midterm election.64

The same is true of young voters, who

used early voting at a lower rate than blacks or whites as a
whole in 2010.65
Furthermore, Plaintiffs’ generalized arguments with respect
to Sunday voting lack force in the context of the preliminary
injunction

standard.

Only

seven

of

North

Carolina’s

100

counties offered any Sunday voting in the 2010 general election,
general elections, which have much higher turnout as presidential
elections. Thus, the study’s conclusions have limited persuasiveness
for the 2014 election cycle. Indeed, Plaintiffs’ expert Dr. Theodore
Allen testified that he did not include any midterm election data in
his report concluding that waiting times would increase on Election
Day due to the elimination of seven days of early voting. (Doc. 163-9
at 78-79.)
64

In 2010, 36% of all black voters that cast ballots utilized early
voting, as compared to 33.1% of white voters.
(J.A. at 616.)
By
comparison, in the presidential elections of 2008 and 2012, over 70%
of black voters used early voting compared to just over 50% of white
voters. (Id.) In addition, 80.2% of the voters using the first week
of early voting in 2010 were white. (J.A. at 1543.)
65

In the 2010 general election, 28.2% of young voters (ages 18-24)
voted early. (J.A. at 1444.) In the 2012 and 2008 general election,
this age cohort voted early at approximately the same rate as white
voters as a whole; 53.1% in 2012 and 49.4% in 2008. (Id.)

98

i.e., before SL 2013-381 was enacted.66

(Doc. 126-4 at 45-90.)

Even among those seven, none offered any voting hours during the
first Sunday of the early-voting period – October 17, 2010.67
Thus, Plaintiffs’ claims that the number of Sunday voting days
has been “cut in half” by SL 2013-381 are unsubstantiated, at
least for the purposes of a preliminary injunction sought for
the November 2014 cycle.68

The seven counties offering Sunday

voting may still offer it on the second Sunday before Election

66

The seven counties offering Sunday voting were Mecklenburg
(Charlotte), Wake (Raleigh), Guilford (Greensboro), Forsyth (WinstonSalem), Durham (Durham), Pitt (Greenville), and Vance (Henderson).
(Doc. 126-4 at 57-58, 61-62, 71-73, 78, 86-87.)
The first five of
these are among the six most populous counties in North Carolina.
67

Durham County offered Sunday voting at the CBOE office from 12:00
p.m. to 3:00 p.m. on the second available Sunday – October 24 – and
two additional sites without Sunday voting.
(Id. at 57.)
Forsyth
County offered Sunday voting at the CBOE office from 1:00 p.m. to 5:00
p.m. on October 24 and maintained seven other sites not offering any
Sunday voting.
(Id. at 58.)
Guilford County offered nine Sunday
voting sites opened between 12:00 p.m. and 4:00 p.m. on October 24 and
two sites without Sunday voting. (Id. at 61-62.) Mecklenburg County
– the State’s most populous county – offered 16 sites open from 1:00
p.m. to 4:00 p.m. on October 24. (Id. at 71-73.) Pitt County offered
one site open from 1:00 p.m. to 5:00 p.m. on October 24 in addition to
three sites not offering Sunday voting.
(Id. at 78.)
Vance County
provided two sites open from 1:00 p.m. to 5:00 p.m. on October 24.
(Id. at 86.) Finally, Wake County offered nine sites open from 1:00
p.m. until 5:00 p.m. on that second Sunday. (Id. at 86-87.)
68

The court notes that Gloria Hill of the Hoke County Board of
Elections testified that in some cases black voters in her county
would not be able to get to the polls without Sunday voting.
(Doc.
164 at 154-55.)
But Hoke County did not maintain any Sunday voting
hours in the 2010 general election. (Doc. 126-4 at 64.) It offered
only two sites with an aggregate total of 11 weekend hours, all on the
Saturday before Election Day. (Id.)

99

Day – October 26, 2014 – under SL 2013-381.69

It will not be

possible for many counties to comply with the aggregate-hours
requirement of N.C. Gen. Stat. § 163-227.2(g2) if they were to
cut existing Sunday hours or voting sites.

Plaintiffs’ request

asks the court to assume that some counties will obtain waivers
for the general election as they did for the primary elections,
but there is no indication they will and such speculation would
be

inconsistent

with

the

Supreme

Court’s

direction

that

a

preliminary injunction should not be granted “based on only a
possibility

of

irreparable

harm.”

Winter,

555

U.S.

at

22.

Because Plaintiffs have the burden to make a clear showing of
that irreparable harm is

likely, the court must assume that

counties will comply with the law until it is shown that they
will not.70

Plaintiffs have not shown that any fewer Sunday

69

For example, Durham County will have four early-voting sites this
November (as opposed to three in 2010), and all four will feature
Sunday voting from 2:00 p.m. through 6:00 p.m. See N.C. State Bd. of
Elections, N.C. One-Stop Voting Site Results – November 4, 2014
Election, http://www.ncsbe.gov/webapps/os_sites/OSVotingSiteList.aspx?
County=DURDUR&Election=11/04/2014 (last visited Aug. 5, 2014).
This
represents an increase of 13 aggregate Sunday voting hours.
One of
the new Sunday voting sites is located on the campus of North Carolina
Central University, a historically black university. Id. Wake County
will offer Sunday voting at eight sites between the hours of 1:00 p.m.
and 5:00 p.m., a decrease of just four aggregate hours throughout the
county.
See N.C. State Bd. of Elections, N.C. One-Stop Voting Site
Results – November 4, 2014 Election, http://www.ncsbe.gov/webapps/
os_sites/OSVotingSiteList.aspx?County=WAKE&Election=11/04/2014
(last
visited Aug. 5, 2014).
70

In fact, Michael Dickerson, chair of the Mecklenburg County Board of
Elections, testified that his county would be able to meet the
aggregate-hours requirement by opening up more early-voting sites.

100

hours

will

be

offered

this

year

than

in

the

2010

general

election.71

(Doc. 160-2 at 7-10.) He stated that he expected the Mecklenburg CBOE
would open five additional sites as compared to November 2010.
(Id.
at 10.)
71

Plaintiffs also contend that SL 2013-381’s removal of one possible
Saturday for early voting and mandate that early-voting sites on the
final Saturday before Election Day close at 1:00 p.m. will cause them
harm.
But the reality of what counties actually offered in 2010
belies this contention.
Only eight of the State’s 100 counties
exercised their discretion to keep a voting site open after 1:00 p.m.
on the final Saturday of early voting in 2010. (Doc. 126-4 at 45-90.)
None of these counties was among the State’s most populous; Harnett
County, the State’s 24th most populous county, is the largest that
made the choice to remain open past 1:00 p.m. in 2010. (Id. at 62.)
Only three of the eight counties to stay open past 1:00 p.m. had at
least one site open until 5:00 p.m. on the last Saturday. (Id. at 51,
65-66, 69.) In 2010, Harnett County had three sites open on the final
Saturday from 8:00 a.m. through 3:00 p.m., and in 2014 it will have
four sites open from 6:30 a.m. through 1:00 p.m., accounting for an
increase of five aggregate final Saturday hours.
See N.C. State Bd.
of Elections, N.C. One-Stop Voting Site Results – November 4, 2014
Election
http://www.ncsbe.gov/webapps/os_sites/OSVotingSiteList.aspx?
County=HARNETT&Election=11/04/2014 (last visited Aug. 5, 2014).
This
surely cannot constitute irreparable harm.
In addition, only 14 counties offered any voting on the first
Saturday available in 2010. (Id. at 45-90.) Once again, the largest
counties
(Mecklenburg,
Guilford,
Forsyth,
Wake,
Durham,
and
Cumberland) offered no hours of early voting on the first Saturday.
(Id.) The counties that chose to offer voting on the first Saturday
in 2010 will have two additional Saturdays in 2014 as well as one
Sunday (on which none of them previously offered voting) to make up
the required hours. Voters will have no fewer than two Saturdays of
early voting in counties that previously offered three Saturdays. In
most counties, including the six largest, the weekend voting situation
will remain unchanged from 2010.
Indeed, counties may actually be
compelled to add more weekend hours to comply with the aggregate-hours
requirement.
For example, Chatham County will now offer four sites
with 33 aggregate hours of voting on the second Saturday before
Election Day, as opposed to three sites and 15 aggregate hours in
2010.
See N.C. State Bd. of Elections, N.C. One-Stop Voting Site
Results
–
November
4,
2014
Election,
http://www.ncsbe.gov/web
apps/os_sites/OSVotingSiteList.aspx?County=CHATHAM&Election=11/04/2014
(last visited Aug. 5, 2014).
This falls far short of the showing
necessary to demonstrate irreparable harm.

101

Plaintiffs’ witnesses opined that the loss of one week of
early voting will hamper GOTV efforts and thus depress black
turnout.

(Doc. 164 at 74-76 (testimony of Melvin F. Montford);

Doc. 165 at 95-97 (testimony of Rev. Jimmy Hawkins).)

But no

witness

adjust

testified

operations readily

that

he

to fit

or

she

will

not

be

able

the new early-voting period.

Cf.

Brown, 895 F. Supp. 2d at 1253-54 (citing Florida, 885 F. Supp.
2d at 336) (finding that, despite testimony suggesting a twoweek period was essential to GOTV efforts, groups would be able
to adjust to a new distribution of hours over fewer days).

In

fact, one witness testified that even 17 days was not sufficient
for his efforts and that a whole month of early voting would be
preferable.

(Doc. 165 at 100.)

This suggests that although

GOTV operators would prefer more days of early voting, they will
be able to adjust to a reduced schedule of days with more voting
sites and hours.

This is especially true for the purposes of

irreparable harm in the lower-turnout 2014 midterm election.72
Finally, Plaintiffs argue that historically black voters
disproportionately used the first week of early voting under the
old law and that SL 2013-381 “takes that away.”
72

This is a

The court also acknowledges that data from the May 2014 primary
suggest that black turnout increased more than did white turnout when
compared with the May 2010 primary.
(See Doc. 126-1 ¶¶ 61-67.)
Although this tends to weigh against a finding of irreparable harm, it
is of limited significance because of the many noted differences
between primaries and general elections.

102

reformulation of the same argument.

The evidence shows that

black voters utilized the initial days of early voting more than
white voters.
seven

days

To say that they will no longer use the first

of

the

new

ten-day

period

is

speculative

and

insufficient to show irreparable harm.
On
burden

this
to

record,

make

a

Plaintiffs

clear

have
that

showing

failed
they

to

are

carry
likely

their
to

be

irreparably harmed by the reduction of seven possible days of
early voting.73
trial

on

changes

the
of

prerequisite

Thus, even assuming Plaintiffs will succeed at
merits

SL
for

of

their

claims

as
not

2013-381,

they

have

entry

a

pretrial

of

to
met

the

early-voting

this

injunction,

important
and

their

motion will be denied.
E.

Voter ID “Soft Rollout”

SL 2013-381 institutes for the first time in North Carolina
a requirement that a voter “present photo identification bearing
any reasonable resemblance to that voter to a local election

73

In assessing likelihood of success on the merits, the Brown court
recognized
the
ameliorative
effect
of
the
increased
hours
significantly lessened the burden on voters. See Brown, 895 F. Supp.
2d at 1252.
The court also noted that the new Florida law would
actually increase weekend hours, creating a further ameliorative
effect. Id. at 1253. The same analysis applies here in the context
of irreparable harm for the 2014 midterm election.
As discussed
above, see supra nn.67, 69-71, SL 2013-381 will likely result in
either no change or an increase in the total number of weekend voting
hours for voters in most counties in 2014.

103

official at the voting place before voting.”74
§ 163-166.13(a).

N.C. Gen. Stat.

The new law provides three exceptions: for

voters who are permitted to vote curbside under Section 163166.9,

those

who

have

a

religious

objection

to

being

photographed, and those who have been the victim of a natural
disaster occurring within 60 days of Election Day.
166.13(a)(1)–(3).
requirement

will

Id. § 163-

Any voter who does not comply with the ID
be

permitted

to

vote

a

provisional

ballot,

which will be counted if the voter appears at her CBOE before
noon on the day prior to the convening of the election canvass
and presents a form of photo ID bearing a reasonable resemblance
to herself.

Id. § 163-182.1A(b)(1).

The voter may also choose

to execute a declaration of religious objection at that time.
Id. § 163-182.1A(b)(2).
If

a

local

election

official

determines

that

a

voter’s

photo identification “does not bear any reasonable resemblance

74

Acceptable forms of photo identification include (1) a North
Carolina driver’s license; (2) a special identification card for
nonoperators; (3) a United States passport; (4) a United States
military identification card; (5) a Veterans Identification Card
issued by the United States Department of Veterans Affairs; (6) a
tribal enrollment card issued by a federally recognized tribe; (7) a
tribal enrollment card issued by a tribe recognized by North Carolina,
so long as it is signed by an elected official of the tribe and the
requirements for obtaining it are equivalent to the requirements for
obtaining a special identification card from the DMV; and (8) a
driver’s license or nonoperator’s identification card issued by
another State or the District of Columbia so long as the voter
registered to vote within 90 days of Election Day.
Id. § 163166.13(e)(1)–(8).

104

to that voter,” she must “notify the judges of election of the
determination.”

Id. § 163-166.14(a).

The judges of election

then must review the photo identification and determine if it
bears

any

reasonable

166.14(b).

resemblance

to

the

voter.

Id.

§

163-

The judges may take into account additional evidence

proffered by the voter and must construe all evidence in the
light most favorable to the voter.
unanimously

determine

that

the

Id.

voter’s

Unless the judges
photo

identification

bears no reasonable resemblance to him or her, the voter will be
allowed

to

vote.

Id.

§

163-166.14(c).

If

the

judges

unanimously agree that the identification is invalid, the voter
will be permitted to vote a provisional ballot.

Id. § 166-

166.14(d).
SL 2013-381 requires the State to provide a special photo
identification card free of charge to any registered voter who
executes

a

declaration

registered

and

acceptable

under

37.7(d)(5).

does

The

[the

“stating

not

have

photo

State

ID

must

the

registered

other

photo

provide

is

identification

requirement].”
also

voter

Id.
a

free

§

20-

photo

identification card to anyone appearing before the DMV for the
purpose of registering to vote who declares that she does not
have an acceptable photo ID.

Id. § 20-37.7(d)(6).

In addition,

the State may not charge the usual ten dollar fee to obtain a
copy

of

one’s

birth

certificate
105

or

marriage

license

if

the

registered voter declares she needs such document in order to
obtain acceptable photo ID.

Id. § 130A-93.1(c).

SL 2013-381’s voter ID requirement does not take immediate
effect.

Instead,

Section

6.2

of

the

law

provides

that

the

requirement to present valid photo ID “becomes effective January
1, 2016, and applies to primaries and elections conducted on or
after that date.”

2013 N.C. Sess. Law 381, § 6.2(2).

Before

the 2016 elections, the law provides for a “soft rollout” of the
voter ID requirement, such that,
[a]t each primary and election between May 1, 2014,
and January 1, 2016, each voter presenting in person
shall be notified that photo identification will be
needed to vote beginning in 2016 and be asked if that
voter has one of the forms of photo identification
appropriate for voting. If that voter indicates he or
she does not have one or more of the types of photo
identification appropriate for voting, that voter
shall be asked to sign an acknowledgment of the photo
identification requirement and be given a list of
types of photo identification appropriate for voting
and information on how to obtain those types of photo
identification.
Id. § 6.2(6).75
75

The “soft rollout” appears to be patterned after a bipartisan report
drafted by former President Jimmy Carter and former Secretary of State
James A. Baker, III. See Crawford, 553 U.S. at 193-94 (citing Comm’n
on Federal Election Reform, Building Confidence in U.S. Elections
(2005)).
That report recommended that States adopt a photo ID
requirement for voting if it is “‘phased in’ over two federal election
cycles, to ease the transition.” Id. at 238 (Breyer, J., dissenting).
In fact, Justice Breyer based his objection to the Indiana voter ID
law in part on the fact that Indiana failed to follow this
recommendation.
Id.
He also objected to what he saw as Indiana’s
failure to abide by the Carter-Baker report’s other condition - that
IDs “be easily available and issued free of charge.” Id. at 238-39.
As noted infra, SL 2013-381 purports to alleviate the cost of

106

The private Plaintiffs move to enjoin the “soft rollout” on
the

ground

that

it

will

create

confusion

and

long

lines

at

polling places and increase the costs associated with voting,
and because the State has not engaged in any public education
campaigns

or

rollout.

While Plaintiffs urge they are likely to succeed on

the

merits

properly

of

their

trained

claims

poll

that

workers

the

voter

to

handle

ID

the

requirement

violates Section 2 and the Constitution, the court need not
reach that issue at this time.76

Plaintiffs have not made a

clear

notice

showing

that

implementation
effective

until

of

SL
the

2016,

2013-381’s

requirement,
will

cause

which

provisions
does

irreparable

not
harm

for

the

become
in

the

upcoming November 2014 general election.
Plaintiffs rely on the declarations of a husband and wife
in

Pitt

County

who

state

they

were

improperly

advised

they

obtaining an ID for those who need to obtain one. Compare N.C. Gen.
Stat. § 130A-93.1(c) (waiving the usual ten dollar fee for obtaining a
birth certificate or marriage license if a voter declares she needs
such a document in order to vote), with Crawford, 553 U.S. at 239
(noting that those needing a birth certificate in Indiana would still
have to pay the State’s usual 12 dollar fee, and the indigency
exception required voters to travel to the county clerk’s office after
each election to sign an affidavit).
76

Defendants argue that the requirement serves important State
interests and is constitutional, citing Crawford.
See Crawford, 553
U.S. at 194-200 (plurality opinion) (noting that a properly-drafted
voter ID law advances the important State interests of preventing
election fraud and maintaining confidence in elections).

107

needed a photo ID in order to vote in the May 2014 primary (but
were able to vote).77

(J.A. at 2821-27.)

Plaintiffs argue the

State’s failure to allocate funds to educate poll workers on the
nature of the soft rollout suggests that voters are likely to be
denied

the

right

to

vote

due

effective date of the new law.

to

confusion

created

by

the

But this limited evidence fails

to show a likelihood that poll workers will misinterpret the
clear requirements of State law that voters are not to be turned
away for failure to present an ID this fall.
Court

clarified

in

Winter,

a

plaintiff

As the Supreme

seeking

preliminary

relief must “demonstrate that irreparable injury is likely in
the absence of an injunction.”
original).78

555 U.S. at 22 (emphasis in

Arguments concerning longer lines are speculative;

there is no showing that the “soft rollout” will cause confusion
or undue lines during the November 2014 election.

Indeed, the

77

Plaintiffs also cite the experience of a resident of Hoke County
who, while unable to register during early voting in May 2014 because
SDR had been eliminated, also sought to update her address but says
she was not permitted to do so because she did not have a driver’s
license bearing an address in the county.
(J.A. at 2828-30.)
Her
problem, however, had nothing to do with voter ID; rather, she simply
failed to have a HAVA-compliant ID in order to register.
78

Cf. Reed v. Chambersburg Area Sch. Dist. Found., No. 1:13-cv-00644,
2014 WL 1028405, at *16 (M.D. Pa. Mar. 17, 2014) (finding that
plaintiff pointed only to speculative harm and demonstrated “no clear
factual basis to conclude that further disparaging remarks are
imminent”); Oneida Nation of N.Y. v. Cuomo, 645 F.3d 154, 173 n.20 (2d
Cir. 2011) (finding that plaintiffs’ concern over one scenario that
might arise upon implementation of tax law was insufficient to support
preliminary injunction).

108

“soft rollout” occurred in the May 2014 primary, and Plaintiffs
present no evidence it caused any delays.

Moreover, in light of

the Supreme Court’s acknowledgement of the merits of adequate
notice for such a requirement, see Crawford, 553 U.S. at 238
(Breyer, J., dissenting), and until the provision is declared
invalid or repealed, the State has an interest in attempting to
fulfill the statutory purpose of educating the electorate about
it.
In conclusion, the private Plaintiffs have not shown that
they are likely to suffer irreparable harm if the “soft rollout”
is not enjoined before the November 2014 election.

Therefore,

the motions to enjoin the soft rollout will be denied.
F.

Elimination of Pre-registration

SL 2013-381 ends the practice of “pre-registering” 16- and
17-year-olds

who

would

not

be

18

before

the

next

general

election, which had begun in 2009.

2013 N.C. Sess. Law 381, §

12.1.

Gen.

Prior

to

enactment,

N.C.

Stat.

§

163-82.1(d)

provided “[a] person who is at least 16 years of age but will
not be 18 years of age by the date of the next election and who
is otherwise qualified to register may preregister to vote and
shall

be

automatically

eligibility
qualifications
82.7.”

registered

following
and

address

upon

verification
in

accordance

2009 N.C. Sess. Laws 541, § 7(a).
109

reaching
of
with

the

the

age

of

person's

[Section]

163-

After the passage of

SL

2013-381,

voter

registration

application

forms

in

North

Carolina now ask only one question regarding the applicant’s
age: “Will you be 18 years of age on or before election day?”
N.C. Gen. Stat. § 163-82.4(d)(2)(a).

Thus, those who are 17 but

will be 18 before Election Day still may register to vote in
that election under SL 2013-381.
The NAACP Plaintiffs and Intervenors move to enjoin SL 2013381’s elimination of pre-registration of 16- and 17-year-olds.
As discussed above, Intervenors claim injury not because the
repeal of pre-registration will infringe their right to vote (as
they are all over 18 years of age) or any 16- or 17-year-olds’
right to vote, but because the statute will make it harder for
Intervenors to conduct voter-registration drives targeting young
people.

(See, e.g., Doc. 63 in case 1:13CV660 ¶ 88.)

difficulty

posed

demonstrating

to

that,

Intervenors
even

assuming

on

the

they

present

could

motions

succeed

on

The
is
the

merits, they will be irreparably harmed before trial absent an
injunction.

The NAACP Plaintiffs, however, appear to assert

direct claims on behalf of their 16- or 17-year-old members.
(Doc. 52 in case 1:13CV658 ¶ 93.)
To be sure, assuming the direct right of 16- or 17-year-olds
to vote is at issue in these cases, an injunction would not
protect any young person’s right to vote during the November
2014 general election.

No present 16-year-old would be eligible
110

to

vote

this

fall,

and

any

17-year-old

who

will

be

18

by

Election Day has been able to register for some time even under
SL 2013-381.

Although Plaintiffs have presented evidence that

the DMV refused to register people who were under 18 for some
time after the passage of SL 2013-381 (Plaintiffs’ Hearing Exhs.
220-23), SBOE Director Strach testified that this problem has
been corrected and the DMV is now sending all voter registration
applications for 17-year-olds directly to the SBOE.

(Doc. 161-9

at

17

93-95,

99.)

While

individuals

who

turned

between

September 1 and November 4 of 2013 would have suffered some harm
in

the

sense

that

they

“lost”

two

months

of

possible

registration time, and individuals who were turned away by the
DMV

undoubtedly

suffered

harm

at

that

time,

a

preliminary

injunction at this time would do nothing for either of these
groups.
It is also clear that SL 2013-381’s elimination of preregistration

will

not

irreparably

harm

Plaintiffs’

or

Intervenors’ ability to engage in pre-registration efforts for
16-

and

suggests,

17-year-olds.
is

harm

that

“‘I]rreparable
cannot

be

harm,

undone.’

In

as

the

other

easily reversed harm cannot be considered irreparable.”
v.

U.S.

Election

Assistance

Comm’n,

No.

13-cv-4095,

name
words,
Kobach

2014

WL

1806703, at *2 (D. Kan. May 7, 2014) (footnote omitted) (quoting
Salt Lake Tribune Publ’g Co., LLC v. AT&T Corp., 320 F.3d 1081,
111

1105 (10th Cir. 2003)).
not

eligible

to

For those 16- and 17-year-olds who are

vote

in

the

upcoming

November

election, an injunction would be ineffective.
Intervenors

will

have

an

opportunity

trial, should they be successful.

to

2014

general

Plaintiffs and

register

them

after

For those 17-year-olds who

are eligible to vote this fall, Plaintiffs and Intervenors can
assist them in registering under current law.
current

law

Plaintiffs

may

continue

to

Indeed, under

conduct

registration

activities in high schools and other locations, targeting those
who will be 18 years-old before the next general election.
2013-381

does

registration

not

forms

even
and

prohibit

forwarding

elections at the appropriate time.

them
them

from

to

the

SL

collecting
boards

of

The law only provides that

the State will not process for registration anyone who will not
be 18 years old before the next general election.
Thus,
failed

to

because

the

demonstrate

NAACP
how

Plaintiffs

they

will

and

Intervenors

have

suffer

irreparable

harm

absent an injunction, their motion to enjoin the elimination of
pre-registration pending trial will be denied.
G.
North

Increased
Poll
Observers/Poll
Challenges
Elimination of Discretion to Keep the Polls Open
Carolina

law

permits

the

chair

of

each

and

political

party in every county to “designate two observers to attend each
voting place at each primary and election.”

112

N.C. Gen. Stat.

§ 163-45(a).

SL 2013-381 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

be

“provided

by

Id.

the

The

county

director of elections to the chief judge [for each affected
precinct].”

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, rather than in the precinct, to
exercise the right to challenge a ballot on Election Day.
20.2 (codified at N.C. Gen. Stat. § 163-87)).

Id. §

During early

voting, any resident of the State may now file a challenge.

Id.

§ 20.1 (codified at N.C. Gen. Stat. § 163-84)).
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.
“direct

that

N.C. Gen. Stat.

Beginning in 2001, each CBOE had the power to
the

polls

remain

“extraordinary circumstances.”

open

until

8:30

the

discretion

in

2001 N.C. Sess. Laws 460, § 3

(codified at N.C. Gen. Stat. § 163-166 (2002)).
eliminates

p.m.”

of
113

the

CBOEs

by

SL 2013-381
deleting

the

“extraordinary circumstances” clause.
§ 33.1.

2013 N.C. Sess. Law 381,

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 [SBOE] may extend the closing time
by an equal number of minutes. As authorized by law,
the [SBOE] 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.
the

SBOE

to

the

exclusion

The law thus vests discretion in
of

the

CBOEs

and

conditions

the

exercise of discretion on a delay of 15 minutes or longer.
The private Plaintiffs move to preliminarily enjoin these
two provisions from going into effect during the November 2014
general election.

With respect to the discretion to keep the

polls open, Plaintiffs bring claims of racially discriminatory
intent, undue burden under the Anderson-Burdick framework, and
intent to discriminate against young voters in violation of the
Twenty-Sixth

Amendment.

As

to

the

poll

observers

and

challenges, Plaintiffs bring all claims except a Twenty-Sixth
Amendment challenge.

The court need not determine at this stage

whether Plaintiffs are likely to succeed on the merits on these
claims because Plaintiffs have failed to demonstrate that they
will suffer irreparable harm this November if these provisions
are not enjoined.

Therefore, the motions for a preliminary

injunction as to these provisions will be denied.

114

As

noted,

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.
Several witnesses testified to recalling personal experiences in
their lifetimes when intimidation based on race occurred, or
worse, was condoned.
However, Plaintiffs’ legitimate concerns do not support a
conclusion that the potential for additional poll observers and
challengers

renders

any

presented to the court.

intimidation

likely

under

the

facts

The law provides that “[a]n observer

shall do no electioneering at the voting place, and shall in no
manner impede the voting process or interfere or communicate
with or observe any voter in casting a ballot,” unless the chief
judge of elections permits the observer to make observations and
take

notes.

provided

no

N.C.

Gen.

Stat.

basis

to

§

suggest

163-45(c).
that

poll

Plaintiffs
observers

challenger(s) will abuse their statutory power.79

79

or

have
any

With respect

Senator Blue testified that a concern was that black voters may be
intimidated by the presence of a white observer who does not look
familiar to them and that bringing in people from outside the precinct
may create an intimidating environment. (Doc. 164 at 109-11.) But as
he stated, individuals have a First Amendment right to stand outside
the polling place in this manner, and SL 2013-381 does not address
this. (Id. at 108.) Moreover, the intimidation he was most concerned
with, he said, occurs outside the polling place, not inside the

115

to the discretion to keep the polls open, it is unclear how the
elimination

of

the

“extraordinary

cause irreparable harm.

circumstances”

clause

will

This is especially true because the

SBOE retains the ability to make up significant losses in time
by ordering the polls to remain open in the event of a delay.80
N.C. Gen. Stat. § 163-166.01.
On these provisions, Plaintiffs fall short of the showing
necessary to establish irreparable harm.
to

preliminarily

enjoin

the

poll

Therefore, the motion

observers

and

discretion

provisions will be denied.
IV.

MOTION FOR JUDGMENT ON THE PLEADINGS
A.

Standard of Review

Defendants move for judgment on the pleadings on all claims
pursuant to Federal Rule of Civil Procedure 12(c).

The standard

of review governing motions for judgment on the pleadings is the
same as that employed on motions to dismiss for failure to state
a claim under Federal Rule of Civil Procedure 12(b)(6).
v. PLIVA USA, Inc., 741 F.3d 470, 474 (4th Cir. 2014).

Drager
“[A]

complaint must contain sufficient factual matter . . . to ‘state
a claim to relief that is plausible on its face.’”

Ashcroft v.

restricted area where observers from both parties would be present
under SL 2013-381. (Id. at 136-37.)
80

Director Bartlett testified that any concern he had about the
removal of discretion from the CBOEs would be addressed as long as the
SBOE could keep the polls open in the event of a delay. (Doc. 160-3
at 151.)

116

Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)).

A claim is plausible “when

the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for
the misconduct alleged.”

Id. (citing Twombly, 550 U.S. at 556).

“A Rule 12(c) motion tests only the sufficiency of the complaint
and does not resolve the merits of the plaintiff’s claims or any
disputes of fact.”

Drager, 741 F.3d at 474 (citing Butler v.

United

F.3d

States,

important

702

to

749,

emphasize

752

that

(4th
the

Cir.

2012)).

fact-based

It

is

discussion

necessitated by the voluminous preliminary injunction record is
not at issue in consideration of Defendants’ Rule 12(c) motion.
B.

Analysis
1.

Voter ID

With respect to the voter ID provision, Defendants contend
that Crawford is controlling precedent and requires dismissal of
the private Plaintiffs’ Anderson-Burdick claims.
turned

on

the

specific

facts

relevant

in

But Crawford

the

context

of

Indiana’s voter ID law and recognized that the determination of
whether

such

intensive.
opinion).

a
See

law

satisfies

Crawford,

the

553

Constitution

U.S.

at

is

191-203

factually
(plurality

Plaintiffs here have alleged that approximately 5% of

the voting-age population of North Carolina lacks valid ID, that
it would be a significant burden for many voters to obtain such
117

ID, and that the State has minimal evidence of voter fraud.
(Doc.

1

in

case

1:13CV861

1:13CV658 ¶¶ 71-72, 81, 83.)

¶¶ 49-50,

76;

Doc.

52

in

case

Such allegations are sufficient to

make a claim under Anderson-Burdick at least plausible.

See

Veasey, 2014 WL 3002413, at *14-18; Frank, 2014 WL 1775432, at
*3-18.
Plaintiffs have also alleged that blacks disproportionally
lack IDs and that their socioeconomic conditions interact with
the ID requirement to create an inequality of opportunity to
vote.
Such

(See, e.g., Doc. 1 in case 1:13CV861 ¶¶ 14-17, 74-75.)
facts

state

a

plausible

Section

depends on the facts adduced at trial.

2

results

claim

that

Finally, Plaintiffs have

plausibly alleged that the General Assembly was motivated by
discriminatory intent when it passed SL 2013-381, and the voter
ID

provision

Thus,

they

particularly.

have

stated

(See,

claims

e.g.,

under

both

id.

¶¶

Section

81-89,
2

and

92.)
the

Fourteenth and Fifteenth Amendments.
As

to

the

Twenty-Sixth

Amendment

claim,

the

court

will

exercise its discretion under Federal Rule of Civil Procedure
12(i) to defer a ruling until trial.

See Design Res., Inc. v.

Leather Indus. of Am., 900 F. Supp. 2d 612, 621 (M.D.N.C. 2012).
Not only would it assist the court to have a more developed
factual record, but, as recognized above, Intervenors raise a
novel claim.

The court need not decide the proper framework to
118

apply at this early stage, especially considering that if the
other Plaintiffs are ultimately successful, such a claim will
not have to be adjudicated.

Thus, rather than to wrestle with a

matter of first impression, the court will defer any ruling on
Intervenors’ Twenty-Sixth Amendment voter ID claim to trial.
2.

SDR, out-of-precinct, and early voting

Plaintiffs have also pleaded plausible claims with respect
to SDR, out-of-precinct voting, and early voting.
court

determined

that

Section

2,

Although the

Fourteenth

and

Fifteenth

Amendment challenges to the SDR and out-of-precinct provisions
were unlikely to succeed on the merits, the inquiry here is a
lesser

standard.

Plaintiffs

have

pleaded

matter to make these claims plausible.

adequate

factual

(See, e.g., Doc. 1 in

case 1:13CV861 ¶¶ 14-22, 27-34, 37-38, 41-42, 69-73.)

Section 2

results

order

claims

determine

require

whether

the

a

fact-sensitive

challenged

inquiry

provisions

in

interact

to

with

current and historical conditions to produce an inequality of
opportunity for black voters.

While the court concludes that

Plaintiffs have not demonstrated a likelihood of success on the
merits on this record, their claims are not barred as matter of
law.

Cf. Salas v. Sw. Texas Jr. Coll. Dist., 964 F.2d 1542,

1551 (5th Cir. 1992) (holding that no per se rule prevents a
protected class constituting a majority of registered voters in
a jurisdiction from bringing a vote dilution claim under Section
119

2).

Plaintiffs have also sufficiently alleged discriminatory

intent under the Arlington Heights standard (e.g., Doc. 1 in
case

1:13CV861

¶¶

81-89,

92),

although

the

court

is

not

persuaded that the preliminary injunction record establishes a
likelihood of success on the merits with respect to SDR and outof-precinct

voting.

claims

fact

are

Similar

intensive

to

and

Section
the

2,

private

Anderson-Burdick
Plaintiffs

have

sufficiently alleged an impermissible burden on the right to
vote of voters generally.

For the same reasons stated above,

the court will defer any ruling on Intervenors’ Twenty-Sixth
Amendment claims under Rule 12(i).
3.

Other provisions

With respect to the other provisions, it is clear to the
court that the private Plaintiffs’ and Intervenors’ claims “can
be adjudicated more accurately after the parties have developed
the

factual

record.”

Design

Res.,

900

F.

Supp.

2d

at

621

(quoting Flue-Cured Tobacco Co-op Stabilization Corp. v. EPA,
857 F. Supp. 1137, 1145 (M.D.N.C. 1994)).

Very little of the

parties’ arguments and evidence have been devoted toward certain
challenged provisions, such as the increased numbers of poll
observers and eligible challengers and the elimination of CBOE
discretion to keep the polls open for an additional hour.

The

court would benefit from additional factual development in these
areas and is reluctant to rule on the face of the complaint,
120

especially when challenges to so many provisions are already
proceeding.

Although more arguments were directed toward the

elimination of pre-registration, the court would also benefit
from further development of the record and argument in this
area.
Therefore,
plausible

the

claims

court

under

finds

that

Section

2

Plaintiffs

and

the

have

stated

Fourteenth

and

Fifteenth Amendments (both discriminatory intent and AndersonBurdick) regarding voter ID, SDR, out-of-precinct voting, and
early voting.

The remainder of the claims by Plaintiffs and

Intervenors will be deferred under Rule 12(i).

Defendants’ Rule

12(c) motion will therefore be denied in its entirety.81
V.

UNITED STATES’ REQUEST FOR FEDERAL OBSERVERS
The United States also seeks the appointment of federal

observers

“to

monitor

future

including

the

November

2014

Section 3 of the VRA.

elections
general

(Doc. 97 at 76.)

in

North

election,”

Carolina,

pursuant

to

Section 3(a) authorizes

the court to appoint such monitors if it determines that doing
so is “necessary to enforce [the] voting guarantees” of the VRA
81

Defendants’ brief in support of its Rule 12(c) motion indicates that
certain claims were made in Intervenors’ complaint against several
CBOEs that are not defendants in these cases, as well as the Chairman
of the Pasquotank County Republican Party. (Doc. 95 at 13.) However,
these factual allegations are not additional claims made by
Intervenors, but merely factual allegations Intervenors contend
support their claims against the named Defendants.
Thus, because
there are no claims to dismiss, the motion is denied on this basis as
well.

121

and

the

Fourteenth

§ 1973a(a).

and

Fifteenth

Amendments.

42

U.S.C.

According to the United States, the adoption of SL

2013-381 “creates needless obstacles to minority voters’ ability
to

cast

a

Government’s
safeguard

ballot,”
Office

against

and
of

thus

federal

Personnel

additional

observers

Management

violations

of

will
the

from

the

“provide

Voting

a

Rights

Act,” “provide reassurance to minority voters,” and provide a
“calming effect” in light of the law’s provisions that “expand[]
the ability of partisan groups to send monitors to the polls and
to challenge voters.”

(Doc. 97 at 76.)

The United States’ request is premised on its only claim in
the case - violation of the Section 2 of the VRA.
above,

however,

the

United

States

As noted

demonstrated

neither

irreparable harm nor, where addressed, a likelihood of success
on its claims.
any

of

the

The United States has also not demonstrated that

changes

implemented

by

SL

2013-381

will

render

federal observers necessary for the November general election.
For example, neither the elimination (or return, if it had been
ordered)

of

voting,

nor

SDR,

nor

the

the

reduction

prohibition

on

of

seven

counting

days

of

early

out-of-precinct

provisional ballots has been shown likely to create the kind of
problem

at

compliance.

the

polls

that

observers

can

monitor

to

ensure

Cf. Berks Cnty., 250 F. Supp. 2d at 543 (appointing

federal examiner to oversee defendant’s compliance with court
122

order requiring Spanish ballots).
previously,

to

conclude

that

Similarly, and as explained
potential

poll

monitors

or

challengers under SL 2013-381 will somehow act unlawfully would
be speculative.
2014

primary,

Indeed, the State’s experience during the May
where

black

turnout

increased

without

serious

incident, suggests otherwise.82
Consequently,

the

United

States’

request

observers prior to trial will be denied.
Educ.,

990

F.

Supp.

221,

233

(S.D.N.Y.

for

federal

Coleman v. Bd. of
1997)

(declining

to

appoint federal observers because showing was insufficient).
VI.

CONCLUSION
For the reasons stated, the court finds that Plaintiffs

have stated plausible claims that should not be dismissed at
this stage.

Defendants’ motion for judgment on the pleadings

will therefore be denied.

However, based on a careful review of

the extensive record submitted by the parties and the applicable
law,

the

Plaintiffs

court
and

finds

that

Intervenors

at

this

have

82

stage
failed

of
to

the

proceedings

demonstrate

a

Although not argued by the United States, the court notes the
isolated experience of a husband and wife in Pitt County who were
asked for a photo ID (and were able to vote) and a resident of Hoke
County who tried unsuccessfully to register during early voting but
did not have a driver’s license bearing an address in the county.
(J.A. at 2821-30.) These fail to rise to a showing of necessity. See
42 U.S.C. § 1973a(a) (providing that the court need not authorize the
appointment of observers if any incidents of denial or abridgement
were few in number, corrected promptly and effectively, lack a
continuing effect, and lack a reasonable probability of recurrence).

123

likelihood of success on their claims that SL 2013-381’s changes
as

to

same-day

registration

and

out-of-precinct

provisional

voting were implemented with intent to deny or abridge the right
to

vote

of

African-American

North

Carolinians

violate Section 2 of the VRA or the Constitution.
if

the

court

assumes,

without

deciding,

that

or

otherwise

Further, even
Plaintiffs

and

Intervenors can demonstrate a likelihood of success on their
legal challenges to the remaining provisions of SL 2013-381,
they have not made a clear showing that they will nevertheless
suffer irreparable harm if the court does not enjoin the law
before a trial on the merits can be held.

The only election

slated before trial is the November 2014 general election.

As

to SL 2013-381’s reduction of early-voting days from 17 to ten,
the parties acknowledge, and history demonstrates, that turnout
for the fall election will likely be significantly lower than
that in presidential years.

The evidence presented, in light of

the law’s requirements for counties to provide the same number
of aggregate voting hours as in the comparable previous election
under prior law, fails to demonstrate that it is likely the
State

will

have

inadequate

polling

resources

accommodate all voters for this election.

available

to

The court expresses

no view as to the effect of the reduction in early voting on
other elections.

As to the voter ID provisions, Plaintiffs only

challenged the “soft rollout,” which the court does not find
124

will

likely

cause

irreparable

harm,

and

not

the

photo

ID

requirement, as to which the court also expresses no view.

In

the absence of the clear showing for preliminary relief required
by the law, it is inappropriate for a federal court to enjoin a
State law passed by duly-elected representatives.
IT

IS

THEREFORE

ORDERED

that

Defendants’

motions

for

judgment on the pleadings (Doc. 94 in case 1:13CV861, Doc. 106
in case 1:13CV658, and Doc. 110 in case 1:13CV660) are DENIED.
IT

IS

FURTHER

ORDERED

that

Plaintiffs’

and

Intervenors’

motions for a preliminary injunction (Docs. 96 & 98 in case
1:13CV861; Docs. 108 & 110 in case 1:13CV658; and Docs. 112 &
114 in case 1:13CV660) are DENIED.
IT IS FURTHER ORDERED that Plaintiffs’ motions to strike
Defendants’ experts (Docs. 146, 148, & 150 in case 1:13CV861;
Docs. 156, 158, & 160 in case 1:13CV658; and Docs. 157, 159, &
161 in case 1:13CV660) are DENIED AS MOOT.

/s/
Thomas D. Schroeder
United States District Judge
August 8, 2014

125