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

Filing 403

MEMORANDUM OPINION AND ORDER signed by JUDGE THOMAS D. SCHROEDER on 01/15/2016. For the reasons set forth herein, NAACP Plaintiffs' motion to preliminarily enjoin SL 2013-381's photo-ID requirement, as amended by SL 2015- 103 and its reasonable impediment exception, (Doc. 390 ) will be DENIED. Associated Cases: 1:13-cv-00658-TDS-JEP, 1:13-cv-00660-TDS-JEP, 1:13-cv-00861-TDS-JEP(Taylor, Abby)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
NORTH CAROLINA STATE CONFERENCE,
OF THE NAACP, EMMANUEL BAPTIST
CHURCH, BETHEL A. BAPTIST CHURCH,
COVENANT PRESBYTERIAN CHURCH,
BARBEE’S CHAPEL MISSIONARY BAPTIST
CHURCH, INC., ROSANELL EATON,
ARMENTA EATON, CAROLYN COLEMAN,
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
CAROLINA; GOLDIE WELLS; KAY
BRANDON; OCTAVIA RAINEY; SARA

)
)
)
)
)
)

1:13CV658

STOHLER; and HUGH STOHLER,

)
)
Plaintiffs,
)
)
and
)
)
LOUIS M. DUKE; JOSUE E. BERDUO;
)
NANCY J. LUND; BRIAN M. MILLER;
)
BECKY HURLEY MOCK; 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.
THE STATE OF NORTH CAROLINA,
THE NORTH CAROLINA STATE BOARD
OF ELECTIONS; and KIM W. STRACH,
in her official capacity as
2

1:13CV660

1:13CV861

Executive Director of the North
)
Carolina State Board of Elections, )
)
Defendants.
)
__________________________________ )

MEMORANDUM OPINION AND ORDER

THOMAS D. SCHROEDER, District Judge.
In these consolidated cases, Plaintiff North Carolina State
Conference

of

the

NAACP

and

certain

other

organizations

and

individual plaintiffs (“NAACP Plaintiffs”) in case 1:13CV658 move
to

preliminarily

enjoin

Defendants

from

implementing

North

Carolina’s voter photo-identification (“ID”) requirement in the
March 2016 primary election.

(Doc. 390.) 1

No other Plaintiff,

including the United States of America, has joined this motion.
Trial is set to begin January 25, 2016.

Defendants oppose the

motion, pointing out that North Carolina’s current law permits
those

without

a

qualifying

photo

ID

to

vote

under

a

broad

“reasonable impediment” exception identical to that approved by a
three-judge court in South Carolina v. United States, 898 F. Supp.
2d 30 (D.D.C. 2012).

For the reasons set forth below, the motion

will be denied.

1

All citations herein are to case 1:13cv658 unless otherwise indicated.

3

I.

BACKGROUND
A.

Procedural History

On August 12, 2013, North Carolina enacted North Carolina
Session Law 2013-381 (“SL 2013-381”), which made a number of
changes to North Carolina’s voting laws.

(Pl. Ex. 121.)

All

changes were to take effect immediately except for the voter photoID requirement, which would not be effective until January 1, 2016.
That same day, NAACP Plaintiffs joined several groups in suing to
overturn several provisions: the photo-ID requirement, elimination
of same-day registration (“SDR”), reduction of seven days of early
voting,

prohibition

on

counting

out-of-precinct

(“OOP”)

provisional ballots, elimination of mandatory pre-registration of
sixteen-year-olds, and expansion of poll observers and ballot
challenges. 2

(Docs. 1, 52.)

NAACP Plaintiffs allege that these

2

The League of Women Voters of North Carolina, along with several
organizations and individuals, filed their complaint in case 1:13cv660,
alleging that the elimination of SDR, changes to the early voting
schedule, prohibition on counting OOP provisional ballots, and
elimination of county board of election (“CBOE”) discretion to extend
poll hours one hour on Election Day discriminate against African
Americans and impose an unjustified burden on all North Carolinians, in
violation of § 2 of the VRA and the Fourteenth Amendment. (Doc. 1 in
case 1:13cv660.) On September 30, 2013, the United States of America
filed its complaint in case 1:13cv861, alleging that the law’s early
voting, SDR, OOP voting, and photo-ID provisions discriminate against
African Americans in violation of § 2 of the VRA.
(Doc. 1 in case
1:13cv861.) On January 27, 2014, the court permitted a group of “young
voters” over the age of eighteen and others to intervene as Plaintiffs
in case 1:13cv660.
Intervenors allege that the elimination of preregistration, reduction in early voting, repeal of SDR, prohibition on
counting OOP ballots, elimination of CBOE discretion to keep the polls
open an extra hour on Election Day, and implementation of the photo-ID
requirement violate the Fourteenth and Twenty-Sixth Amendments. (Doc.
63 in case 1:13cv660.)

4

provisions discriminate against African Americans and Hispanics in
violation of the Fourteenth and Fifteenth Amendments to the United
States Constitution, as well as § 2 of the Voting Rights Act of
1965 (“VRA”), 42 U.S.C. § 1973.

At the parties’ request, this

case was consolidated with related claims made in the captioned
cases for discovery and later for trial.

(Doc. 267.)

On May 19, 2014, all Plaintiffs moved to preliminarily enjoin
the

challenged

provisions,

and

the

appointment of federal observers.
photo-ID

requirement,

however,

United

States

(Docs. 108, 110.)
NAACP

Plaintiffs

sought

the

As to the
(and

those

challenging the photo-ID requirement) moved to enjoin only its
“soft rollout” in which voters would be advised that the photo-ID
requirement would apply starting in 2016.
On August 8, 2014, after considering the testimony of multiple
fact and expert witnesses and an extensive record of over 11,000
pages of exhibits and materials, this court issued a 125-page
opinion

denying

the

motions

for

refusing to dismiss any claims.
2014).

preliminary

injunction

but

997 F. Supp. 2d 322 (M.D.N.C.

Certain Plaintiffs appealed, and on October 1, 2014, a

divided panel of the Fourth Circuit issued an opinion affirming in
part, reversing in part, and remanding with instructions.

League

of Women Voters of N.C. v. North Carolina, 769 F.3d 224 (4th Cir.
2014).

The majority found that Plaintiffs had demonstrated a

likelihood of success on the claim that the repeal of SDR and OOP
5

voting

violated

§ 2

of

the

VRA,

but

left

the

denial

injunction as to the remaining provisions in place.

of

an

Id. at 230.

Due to a stay by the Supreme Court, SDR and OOP remained in place
for the 2014 midterm general election before the stay was lifted. 3
Trial was set for July 13, 2015.

On June 18, 2015, the North

Carolina General Assembly passed House Bill 836, and on June 22,
2015, the Governor signed it into law as North Carolina Session
Law

2015-103

(“SL

2015-103”).

The

law

relaxed

the

photo-ID

requirement created by SL 2013-381 by providing an additional
exception that permits individuals to vote without a photo ID so
long as they sign a reasonable impediment affidavit.

The court

immediately held a status conference to address how this change in
law might affect the pending cases.

Plaintiffs desired additional

time to assess the new law but urged the court not to delay trial
on the remaining claims; Defendants argued that the amendment
rendered the challenge to the photo-ID requirement moot. The court
proposed

continuing

the

trial

to

September

2015

rather

than

bifurcating the photo-ID claim but, at Plaintiffs’ urging, carved
out the challenge to the photo-ID law (except as it related to
Plaintiffs’ intent claims) from the July 13 trial setting and
agreed to proceed to trial on the balance of the consolidated
claims.

(Doc. 299.)

Thereafter, Defendants moved to dismiss the

3

Consequently, SDR and OOP remain in place pending this court’s final
decision on the merits.

6

photo-ID challenge as moot (Doc. 316); the court denied the motion,
setting trial for January 25, 2016.
Beginning July 13, 2015, this court held a trial on the merits
of all claims except those challenging the merits of the photo-ID
provisions. 4

Over the course of three weeks, the court took the

testimony of 114 witnesses. Following trial, the parties submitted
almost 300 pages of proposed findings of fact and conclusions of
law.

(Docs.

364,

365.)

Including

the

evidence

from

the

preliminary injunction hearing, which the parties have stipulated
to be considered part of the trial record pursuant to Federal Rule
of Civil Procedure 65(a)(2), the record consists of over 23,000
pages of exhibits, reports, and deposition transcripts.
On November 24, 2015, five months after the photo-ID law was
modified by the reasonable impediment exception and two months
before

trial,

NAACP

Plaintiffs

filed

the

present

motion

to

preliminarily enjoin the implementation of the photo-ID provision
of SL 2013-381, as amended by the reasonable impediment provision,
for the March 15, 2016 primary.
has not joined this motion.
21, 2015.

(Doc. 390.)

The United States

Briefing was completed on December

(Doc. 395.)

NAACP Plaintiffs limit their present motion to their claims
of intentional discrimination and the alleged unconstitutional

4

As noted, Plaintiffs presented evidence related to the photo-ID claims
insofar as it related to proof of discriminatory intent.

7

burden the photo-ID requirement with the reasonable impediment
exception will have on the right to vote under the Fourteenth
Amendment pursuant to the Anderson-Burdick line of cases.

See

Anderson v. Celebrezze, 460 U.S. 780, 788-89 (1983); Burdick v.
Takushi, 504 U.S. 428, 433-34 (1992).

The motion is not based on

their “results” claim under § 2 of the VRA.

(Doc. 391 at 6-7.)

NAACP Plaintiffs make three principal contentions in support of
their

motion.

sufficiently

First,
educated

they
voters

argue
and

reasonable impediment exception.

that

the

election

State

has

not

on

the

officials

Second, they argue that the

reasonable impediment provision has not been sufficiently defined
by Defendants to prevent it from being applied in a discriminatory
and burdensome manner.

Third, they claim that SL 2013-381’s

version of photo ID was passed with discriminatory intent.
B.

Original Photo-ID Requirement and Reasonable Impediment
Exception

Session Law 2013-381 established the requirement that North
Carolina

voters

“present

photo

identification

bearing

any

reasonable resemblance to that voter to a local election official
at the voting place before voting.”
166.13(a).

As

modified

by

SL

N.C. Gen. Stat. § 163-

2015-103,

acceptable

photo

identification 5 in North Carolina includes (1) a North Carolina

5

Any voter seventy years of age or older is permitted to vote using an
expired form of any of the acceptable forms of identification so long

8

driver’s license, learner’s permit, or provisional license (not
expired

more

than

four

years); 6

(2)

a

special

non-operator’s

identification card (not expired more than four years); (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 non-operator’s identification
card issued by another State or the District of Columbia so long
as the voter registered to vote within ninety days of Election
Day.

Id. § 163-166.13(e).
Session Law 2013-381 required the State to provide a special

photo ID free of charge to any registered voter who executes a
declaration “stating the registered voter is registered and does
not have other photo identification [that is] acceptable.”
§ 20-37.7(d)(5).

Id.

The State must also provide a free photo ID to

as that identification expired at any point after the voter’s seventieth
birthday. N.C. Gen. Stat. § 163-166.13(e1).
6

SL 2015-103 added the ability to use an expired license, learner’s
permit
or
provisional
license
(and
an
expired
non-operator’s
identification, as noted next) for up to four years. 2015 N.C. Sess.
Laws 103, § 8.(a).

9

anyone appearing before the North Carolina Department of Motor
Vehicles (“DMV”) for purposes of registering to vote who declares
that

she

does

not

have

an

acceptable

photo

ID.

Id.

§ 20-

37.7(d)(6).
If an election official determines that a voter’s photo ID
“does not bear any reasonable resemblance to that voter,” SL 2013381

requires

the

election

official

election of the determination.”

to

“notify

the

Id. § 163-166.14(a).

judges

of

The judges

of election present must review the photo ID and determine if it
bears

any

166.14(b).

reasonable

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.

Id.

Unless the judges present

unanimously determine that the voter’s photo ID bears no reasonable
resemblance to him or her, the voter will be allowed to vote.
§ 163-166.14(c).

Id.

If the judges do so unanimously agree, the voter

is permitted to cast a provisional ballot.

Id. § 163-166.14(d).

Voters who do not comply with the photo-ID requirement are
permitted to cast a provisional ballot, which will be counted so
long as the voter appears at his or her county board of elections
(“CBOE”) before noon on the day prior to the convening of the
election

canvass

and

presents

reasonable resemblance to them.

a

form

of

photo

ID

bearing

Id. § 163-182.1A(b)-(c).

10

a

Session

Law

2013-381

provided

three

exceptions

which

permitted certain groups of individuals to vote without presenting
photo ID: (1) voters who are permitted to vote curbside; (2) those
who have a religious objection to being photographed; and (3) those
who have been the victim of a natural disaster occurring within
sixty days of Election Day.
Further,

rather

than

Id. § 163-166.13(a).
implement

the

photo-ID

provision

immediately, SL 2013-381 provided for a two-year “soft-rollout” so
that the requirement would not take effect until January 1, 2016.
This was consistent with the bipartisan recommendation of former
President Jimmy Carter and former Secretary of State James A.
Baker, III, see Commission on Federal Election Reform, Building
Confidence

in

U.S.

Elections

19

(Sept.

2005)

(“Carter-Baker

Report”), and is evidence that the legislature attempted to soften
any burden imposed by the photo-ID requirement by giving voters
two years to acquire a free photo ID.
Session Law 2015-103 modified this scheme by creating the
reasonable

impediment

exception. 7

The

reasonable

impediment

exception permits voters who do not have an acceptable photo ID to
nevertheless cast a provisional ballot so long as they complete a

7

North Carolina’s photo-ID law does not apply to voters who vote absentee
by mail. In addition, until the deadline for submission of requests for
absentee ballots provided in N.C. Gen. Stat. § 163-230.1, a voter who
fails to present qualifying identification can complete a written request
form for an absentee ballot at a one-stop (early voting) absentee voting
location. N.C. Gen. Stat. § 163-227.2(b1).

11

declaration stating a reasonable impediment prevented them from
acquiring qualifying photo ID.
(b).

N.C. Gen. Stat. § 163-166.15(a)-

In addition to declaring that they suffer from a reasonable

impediment, voters must appear to vote in person and present
alternate identification.

Id. § 163-166.15(b)-(c).

The alternate

identification can consist of “the voter registration card issued
to the voter by the county board of elections” or “a current
utility bill, bank statement, government check, paycheck, or other
government document” 8 that shows the name and address of the voter.
Id. §§ 163-166.15(c), 166.12(a)(2).

Alternatively, voters may

provide their date of birth and the last four digits of their
Social Security number.

Id. § 163-166.15(c).

Although a reasonable impediment voter casts a provisional
ballot, the ballot must be counted unless one of the following is
true: the impediment described in the declaration is “factually
false, merely denigrate[s] the photo identification requirement,
or [is an] obviously nonsensical statement[]”; the voter fails to
provide one of the alternate forms of identification discussed
above; the CBOE could not confirm the voter’s registration using
the alternate form of identification provided; or the “voter is
disqualified for some other reason provided by law.”

8

Id. § 163-

These are the same methods of identification that were required for
SDR when it was in place. 2007 N.C. Sess. Laws 253, § 1 (permitting
SDR-registrants to use any of the documents listed in N.C. Gen. Stat.
§ 163-166.12(a)(2)).

12

182.1B(a).
Session Law 2015-103 expressly clarifies what can constitute
a reasonable impediment.

At a minimum, all reasonable impediment

declarations are required to include separate boxes listing the
following reasonable impediments to acquiring a photo ID: (1) “Lack
of transportation; (2) “Disability or illness”; (3) “Lack of birth
certificate

or

other

identification”;

documents

(4)

needed

“Work

to

Schedule”;

obtain
(5)

photo
“Family

responsibilities”; (6) “Lost or stolen photo identification”; and
(6) “Photo identification applied for but not received by the voter
voting in person.”

Id. § 163-166.15(e).

In addition, the form

must list a box for “other reasonable impediment,” which the voter
can check and provide a “brief written identification of the
reasonable impediment.” 9

Id. § 163-166.15(e)(1)h.

Under the law, a voter’s stated reasonable impediment cannot
be rejected on the ground that it is not reasonable.
§ 163-182.1B(b)(6).
reasonable

See id.

Instead, the law provides that, if a voter’s

impediment

declaration

is

challenged,

the

CBOE

is

required to “construe all evidence presented in the light most
favorable

to

the

voter

submitting

the

reasonable

impediment

declaration” and can only reject a declaration for the reason
provided by the declarant if the statement “merely denigrate[s]

9

The voter can also indicate that State or federal law prohibits listing
the impediment. N.C. Gen. Stat. § 163-166.15(e)(1)h.

13

the photo identification requirement,” is “obviously nonsensical,”
or is “factually false.”

Id. § 163-182.1B(a)(5),(7).

NAACP Plaintiffs contend that a preliminary injunction is
necessary because the reasonable impediment exception may not be
applied as written.

For example, NAACP Plaintiffs are concerned

about the breadth of discretion that will be afforded CBOEs in
evaluating reasonable impediment declarations under the factual
falsity exception. (Doc. 391 at 29.) But in a recent Rule 30(b)(6)
deposition of the State Board of Elections (“SBOE”), 10 Executive
Director Kim Strach provided the following representations on how
the reasonable impediment exception will be applied:
•

the reasonable impediment declaration provision should be
interpreted very broadly (Doc. 395-6 at 12);

•

the provision should be construed with all inferences in
favor of the voter (id.);

•

election officials should err on the side of viewing
declarations in the light most favorable to the voter
(id.);

•

the provision should be construed with all inferences in
favor of protecting the fundamental right to vote (id. at
13);

•

if CBOE officials have doubts, such doubts should be
resolved in favor of the vote being counted (id. at 15);

•

it is up to the voter to determine if he or she has a
reasonable impediment and a voter’s belief that he or she
has a reasonable impediment should not be second-guessed
(id.);

10

Excerpts of this deposition were not provided to this court until
NAACP Plaintiffs’ reply brief was filed on December 21, 2015.
(Doc.
395-6.) The full deposition transcript has not been provided. (Id.)

14

•

poll workers and CBOEs do not have discretion to determine
if a voter’s explanation is not reasonable (id.);

•

poll workers and CBOE officials should not investigate or
question voters regarding the reasonableness of the
impediments that they identify (id.);

•

voters may get assistance from a person of their choosing
when executing a reasonable impediment declaration,
without first determining they are illiterate or suffer
from a disability (id. at 62-63).

(See also Doc. 396 at 4-5.) 11
NAACP Plaintiffs concede Director “Strach’s Rule 30(b)(6)
deposition

testimony

establishes

both

the

State

Board’s

interpretation of the reasonable impediment exception, including
the position that a broad reading of the exception in favor of the
voter is clearly required by the statute, and its plans for
implementation of the exception.”

(Id. at 5.)

Nevertheless, even

though the SBOE is responsible for administering elections in North
Carolina, NAACP Plaintiffs believe that the clear language of the
statute and Director Strach’s Rule 30(b)(6) deposition do not
provide adequate assurances because Defendants have declined to
stipulate to or more formally memorialize the position articulated

11

Plaintiffs also represent that Director Strach established the
following during her Rule 30(b)(6) deposition: “voters will not be
required to execute their reasonable impediment declaration in the
presence of a notary”; and “voters wishing to execute a Reasonable
Impediment Declaration will have their identifying information
(including name, address, and phone number) populated electronically on
their declaration form.” (Doc. 396 at 4.) Plaintiffs did not provide
the portions of the deposition containing these propositions.

15

by Director Strach.

(Id.)

In fact, in a telephonic hearing on

January 7, 2016, NAACP Plaintiffs suggested to the court that their
motion for preliminary injunction, at least as to their AndersonBurdick claims, might be unnecessary if the statements made by
Director Strach were memorialized.
C.

Voter and Poll Worker Education
1.

Education Efforts from SL 2013-381’s
until SL 2015-103’s Enactment

Enactment

Defendants engaged in substantial efforts to educate voters
about the State’s photo-ID requirement prior to when SL 2015-103
enacted the reasonable impediment exception.

There were three

elections during this time period (municipal elections in November
2013, midterm primary elections in May 2014, and midterm general
elections in November 2014).
SL 2013-381 contains an education mandate to inform and
educate voters about the new law.
§ 5.3.

See 2013 N.C. Sess. Laws 381,

The General Assembly appropriated approximately $2 million

to implement this requirement. 12

(Doc. 394-1 at 2.)

To oversee

and effectuate these efforts, SBOE hired election specialists to
“create a mechanism to inform and provide education to the public
on the requirements for [SL 2013-381], and to assist voters who do
not have a photo ID for the purpose of voting in obtaining a photo

12

Director Strach testified that $900,000 remains, most of which will
be spent on media this year. (Doc. 395-6 at 58.)

16

ID.”

(Doc. 390-3 at 4-5.)

materials to educate voters.

The SBOE has created a number of
For the 2014 general election, it

developed a color poster that depicts the photo IDs that will be
accepted in 2016 and states that voters will need a photo ID to
vote beginning in 2016.

(Id. at 8.)

To accompany the poster, the

SBOE developed a “two-sided color card that [could be handed out]
to people who want[ed] information about photo ID and how to obtain
it.”

(Id.)

These materials were distributed to every CBOE and

used at voting sites across North Carolina.

(Id. at 8-9.)

In

order to avoid confusion that photo ID was needed prior to 2016,
the SBOE also developed a large sign to be displayed at the
entrance of voting sites stating that voters did not need photo ID
to vote in the current election.

(Id. at 9.)

A similar sign faced

voters as they left the voting site but stated that voters would
need a photo ID to vote in 2016, and encouraged voters to ask poll
workers for more information. (Id.)

In addition, at least by the

2014 primary, poll workers were directed to tell voters that they
will need a photo ID to vote in 2016, show the color poster
illustrating qualifying IDs, and ask voters whether they had access
to one of the approved forms of photo ID.

(Id. at 17-19.)

Voters

who said they had a qualifying ID were asked to sign the poll book;
if they said they did not, they were asked to sign the poll book
with a line on it that says, “I do not have a photo ID” and were
informed that they would need one starting in 2016.
17

(Id. at 19-

20.)

In the general election, poll workers gave them the two-

sided color push card noted above with instructions on how to get
a free ID.

(Id. at 20-21.)

The State kept track of those who

claimed they did not have access to an acceptable photo ID and
sent a mailing to each.

(Id. at 20-22.)

That mailing asked voters

whether they needed assistance in acquiring an acceptable photo
ID.

(Id. at 22.)
In addition to efforts to educate voters at polling sites,

the SBOE created a special website dedicated to the photo-ID
requirement and sent a mailing to more than 218,000 registered
voters who could not be matched to having an acceptable DMV-issued
photo ID.

(Doc. 390-4 at 5.)

The mailing stated that photo ID

would be needed to vote in 2016, listed resources for obtaining
free photo ID, and provided a postage pre-paid response card where
recipients could indicate they needed assistance in acquiring a
photo ID.

(Doc. 394-1 at 9 & Ex. 5.)

In sum, over the course of the last two years, North Carolina
has

been

continually

notifying

voters

that,

unless

certain

exceptions apply, they will need photo ID to vote in 2016.
2.

Education Efforts Since SL 2015-103’s Enactment of
the Reasonable Impediment Exception

On June 22, 2015, SL 2015-103 added the reasonable impediment
exception, thus rendering the prior information provided to voters
incomplete.

Session Law 2015-103 requires the SBOE to educate

18

voters

on

the

availability

of

the

reasonable

impediment

declaration, 2015 N.C. Sess. Laws 103, § 8.(g), and the SBOE has
engaged in substantial efforts to do so.
Creation and Distribution of Updated Materials
Director

Strach

testified

that

“[i]mmediately

after

the

enactment of S.L. 2015-103 in June 2015, SBOE staff developed new
materials which would inform the public of modifications to the
photo identification requirements and the availability of the
reasonable impediment declaration option.”

(Doc. 394-1 at 16.)

These new materials “were delivered to every county board of
elections for posting and distribution at early voting and Election
Day polling locations during the 2015 municipal elections”; “have
been distributed to groups and associations by the SBOE Outreach
Team”; “have been made available to candidates filing for the 2016
election contests”; and can be “download[ed] from the SBOE’s
dedicated ‘Voter Id’ website.”

(Id. at 16-17.)

As of December

11, 2015, the “SBOE ha[d] distributed 105,000 copies of these
materials, including Spanish-language materials.”

(Id. at 17.)

The SBOE also represents that within two weeks of December 11,
2015,

it

will

have

implemented

statewide

distribution

of

an

additional “300,000 flyers and 13,000 full-size posters” to CBOEs
for
posting in public buildings throughout the State, such
as county courthouses and offices, municipal government
offices, town or city halls, health departments, public
19

assistance agencies, vocational rehabilitation and
mental health centers, hospitals, schools, police
stations, libraries, chambers of commerce, public
transit and bus stations, senior centers, community
centers, shelters and temporary/emergency housing, and
other facilities open to the public.
(Id.)

The SBOE also plans to further disseminate these materials

by having outside partners 13 post them at targeted locations,
“includ[ing] educational institutions, food banks and pantries,
retail and business establishments, churches, and other locations
open to the public.”

(Id. at 17-18.)

Pursuant to “agreements

reached with the University of North Carolina system, the North
Carolina

Community

College

system,

and

the

North

Carolina

Independent Colleges and Universities, print materials will also
be disseminated to the campuses of every institution of higher
learning in the State.”

(Id. at 18.)

Further, on or about November 2, 2015, the State mailed a
letter to those organizations who received a prior version of

13

The SBOE has further sought to disseminate information through
partnerships with outside organizations. (Doc. 394-1 at 19-20.) For
example, as a result of the SBOE’s partnership with the United Way, the
helpline system operated by the United Way will include photo-ID related
messaging. (Id.) Last year this helpline assisted 125,000 callers with
needs such as “gaining access to affordable child care, counseling and
support groups, health care . . . and help locating local food pantries
and homeless shelters.” (Id. at 19) While callers are on hold, the
helpline will play a recorded message containing information about the
current photo-ID requirements for voting. (Id. at 20.) Agent counselors
will also provide answers to basic information about the photo-ID
requirements based on training from the SBOE.
(Id.)
United Way’s
partnerships means that statewide distribution of election informational
materials have extended to approximately twenty to sixty different
affiliated agencies in each county. (Id.)

20

educational

materials

not

including

the

reasonable

impediment

provision stating “that recipients should provide updated current
information to any individuals to whom they disseminated the
original materials or information.”

(Id. at 17.)

The letter also

offered the assistance of SBOE staff and included a form to order
new materials.

(Id.)
Statewide Media Campaign

The State also has a substantial media outreach program
regarding the current version of the photo-ID law. 14 As of December
11, 2015, “radio ads [were] airing on at least 45 AM and FM stations
of varying programming formats” and on major television stations
across the State.

(Id. at 12.)

These ads inform the public that

(1) photo ID will be required for most voters beginning
in 2016; (2) exceptions to the requirements exist; (3)
assistance obtaining free acceptable identification is
available; and (4) voters who could not obtain
acceptable identification will still be able to vote and
should present at the polls for assistance casting a
ballot or vote by mail.
(Id. at 12-13.)

The State plans to air “[f]uture television and

radio ads . . . which will provide information regarding exceptions

14

NAACP Plaintiffs’ own exhibits indicate that the reasonable impediment
exception has received significant news coverage. (Doc. 390-1 (Daily
Tar Heel article titled, “Law creates alternatives to photo ID for
voting: Voters fulfilling certain requirements may cast a provisional
ballot”); Doc. 390-5 (Raleigh News and Observer article titled, “NC
legislature votes to soften voter ID requirement”); (Doc. 390-6 (WRAL
article titled, “Lawmakers agree to allow affidavit at polls in lieu of
photo ID”).)

21

and alternative voting options.”

(Id. at 13.)

For example, the

SBOE plans to start airing “Be Recognized” television commercials
Statewide in early January 2016.

(Doc. 395-6 at 57.)

These ads

will state, “And if there’s something preventing you from getting
[a photo ID], no worries — you’ll still be able to vote.
come to the polls and we’ll help you cast your ballot.” 15
60.)

The radio ads will use the same script.

Just

(Id. at

(Id. at 57.)

The State also intends to implement “an expansive outdoor
advertising campaign to promote general awareness of the photo-ID
requirements and exceptions.”

(Doc. 394-1 at 14.)

As of Director

Strach’s December 11, 2015 declaration, the SBOE projected that
this “message will be displayed throughout North Carolina in rural,
suburban, and urban areas on 40 vinyl billboards through November
2016, and 100 printed billboards through roughly August 2016.”
(Id.)

Forty digital electronic billboards across the State will

also bear the message from January through March 2016.

15

(Id.)

The

NAACP Plaintiffs criticize the SBOE for not including the phrase
“reasonable impediment” in its ads (Doc. 395-6 at 60-61) while
simultaneously claiming that many voters will not understand what
“reasonable impediment” means (Doc. 395 at 4-5).
SBOE engaged MSA
Advertising, a professional advertising group, to develop the script for
the ads.
(Doc. 395-6 at 51.)
The SBOE relied upon the ad agency’s
expertise in determining, in light of the length of the advertisements,
what language would be the most effective in communicating to voters
that there are ways to vote without photo ID. (Id.) MSA Advertising
ultimately determined that it would be more effective to say that there
are still ways to vote without photo ID than it would be to use the
phrase “reasonable impediment.” (Id. at 53.) Accordingly, the SBOE’s
ads seek to “drive people to the message that they can vote and provide[]
a way they can get more information.” (Id. at 59.)

22

State estimates that 16.5 million passersby viewed its billboard
messages on 52 billboards over a 5-week period leading up to the
2014 general election.

(Id.)

Information Provided on SBOE and CBOE Websites
The State has also used the SBOE’s website, CBOE websites,
and the stand-alone website dedicated to the photo-ID requirement
to educate voters about the reasonable impediment exception.
at 13.)

(Id.

The first result of a Google search for “North Carolina

voting ID” is the dedicated photo-ID website.

At the top of that

site is the statement, “Beginning in 2016, Most Voters Will Need
to Show Acceptable Photo ID at the Polls.”

See N.C. State Bd. of

Elections, www.voterid.nc.gov (last visited January 15, 2016).
Below that statement is an image of acceptable forms of photo ID.
Id.

Below that statement in bold, pink letters is the statement,

“Reasonable Impediment: Can’t Get a Photo ID? Click Here.”
Clicking

on

the

accompanying

link

produces

the

following

prominently-displayed statement:
Declaration of Reasonable Impediment
Voters who are unable to obtain an acceptable photo ID
due to a reasonable impediment may still vote a
provisional ballot at the polls. (Examples of a
reasonable impediment include but are not limited to the
lack
of
proper
documents,
family
obligations,
transportation problems, work schedule, illness or
disability, among other reasonable impediments faced by
the voter.)
Voters must also:

23

Id.

1. Sign a declaration describing their impediment; and
2. Provide their date of birth and last four digits of
their Social Security number, or present their
current voter registration card or a copy of an
acceptable document bearing their name and address.
(Acceptable documents include a current utility
bill, bank statement, government check, paycheck,
or other government-issued document.)
The provisional ballot will be counted when the
information on the declaration is verified and all other
eligibility requirements are met.
Id.

A video on the home page also concludes with the statement

“if you don’t have an ID or if you are unable to obtain one, voting
options are available. For more information on exceptions, or for
help getting a free ID, visit voterid.nc.gov or call 866-5224723.”

Id.
Judicial Voter Guide

The SBOE also intends to educate voters about the reasonable
impediment declaration through the State’s “Judicial Voter Guide,”
which is required by statute to be mailed to “every household in
North Carolina not more than twenty-five days prior to the start
of early voting in each election in which there is a statewide
judicial contest.”

(Doc. 394-1 at 14.)

The SBOE represents that

“[i]nformation regarding the reasonable impediment declaration
option and other exceptions will be a primary focus” of the guide
and that its front cover “will bear a prominent statement that
important

information

regarding

24

photo-ID

requirements

and

exceptions for 2016 elections is contained inside.”

(Id. at 14-

15.)
Targeted Mailing of Those Previously Contacted
Most importantly, the SBOE has taken specific steps to reeducate those individuals that it previously contacted regarding
the photo-ID requirement.
the

“Acknowledgment

of

As noted above, individuals who signed
no

Photo

ID”

form

while

voting

and

individuals appearing on “no-match” lists were mailed information
about the need for photo ID in 2016 and how to acquire it.
at 7-10.)

These mailings predated SL 2015-103.

(Id.

(Id. at 11.)

However, and of critical importance here, after the fall elections
in November 2015, the SBOE sent every individual who received a
prior mailing (315,755 voters) — except those who had reported
they already possess acceptable photo ID and those for whom prior
mailings were returned to the SBOE as undeliverable — an additional
mailing describing the reasonable impediment exception and other
exceptions to the photo-ID requirement.

(Id.)

Election Official Training
NAACP Plaintiffs claim that the SBOE will not be able to
sufficiently train election officials and poll workers on the
reasonable impediment exception.
already

begun

to

educate

CBOEs

The SBOE claims that it has
on

the

reasonable

impediment

exception, and, in any case, that the appropriate time to train

25

poll workers is in the months leading up to an election. 16
at 5.)

(Id.

According to Director Strach, CBOEs “are responsible for

providing in-person training to the local election workers and
officials who will staff polling places,” while the SBOE’s role is
to “provide[] oversight and resources to the counties’ training
efforts, including developing training materials and programs for
use by county boards of elections.”

(Id.)

CBOE training of

election workers has “historically [been] conducted in the months
immediately preceding an election,” and, Director Strach says,
there is “no precedent for county boards of elections to train
elections workers on new elections procedures before the training
they

will

“Training

receive
election

for

the

2016

officials

elections.”

immediately

in

(Id.

at

advance

5-6.)
of

an

election,” Director Strach says, “is preferable to conducting the
training at any earlier time . . . [as it] allows the training to
be fresh in the minds of election workers.”

(Id. at 6.)

In

addition, given that elections workers “typically work only a few
days each year, . . . they receive training only on the procedures
which will be in effect during the election for which they are
being trained.”

(Id.)

As noted above, the SBOE began to develop and disseminate

16

This likely explains why NAACP Plaintiffs’ poll worker declarants
claim they had not received training on the reasonable impediment
declaration as of November 24, 2015. (Doc. 390-15; Doc. 390-16.)

26

information on the reasonable impediment provision as soon as it
was enacted.

In addition, SBOE staff began to provide training to

CBOE officials on the reasonable impediment exception as early as
August 2015, at the most recent statewide conference for CBOE
members and staff. 17
conduct

regional

(Id.)

training

In January 2016, the SBOE plans to
sessions

for

the

CBOE

elections

personnel who will conduct the poll worker and election official
training for the March 2016 primary.

(Id. at 5.)

The SBOE

represents that CBOEs have “been encouraged to invite poll workers
and elections officials to attend these training sessions in
addition to the mandatory scheduled training which they will
receive from their county boards.”

(Id.)

The State also intends

to conduct additional training at the next statewide conference on
February 1-2, 2016. 18
In addition to in-person training, the SBOE provided CBOEs
with a training video on the photo identification requirement,
including the reasonable impediment exception, “in early December

17

According to Director Strach, attendance was mandatory for CBOE members
and election directors.
(Doc. 394-1 at 6.)
In her Rule 30(b)(6)
deposition, Director Strach conceded that she does not know with
certainty that every CBOE election official received the specific
training session on the reasonable impediment. (Doc. 395-6 at 44-45.)
According to her, “there might have been one or two counties that were
not” at the conference. (Id. at 45.) Nevertheless, there is no reason
for this court not to believe that the vast majority of counties were
present and that the vast majority of officials received training. (Id.)
18

The court has allowed Plaintiffs to supplement the record post-trial
with evidence from this training session. (Doc. 402.)

27

2015 for use in their training of elections workers for the Primary
Election in March 2016.”

(Id. at 3.)

The training video includes

“11 separate modules lasting a combined total of approximately one
hour.”
Official

(Id. at 4.)
Handbook,”

The SBOE also represents that an “Election
which

is

“an

operations

manual

for

the

administration of elections,” “will be provided to county boards
of elections for distribution to every precinct polling place and
one-stop early voting location in the State.”

(Id.)

Each polling

place will also be provided a 123-page “station guide” containing
“step-by-step

procedures

for

processing

voters

both

with

and

without acceptable photo ID,” several pages of which address the
reasonable impediment situation.
II.

(Id. at 4-5.)

ANALYSIS
To prevail on their motion for preliminary injunction, NAACP

Plaintiffs must establish that (1) they are likely to succeed on
the merits; (2) they are likely to suffer irreparable harm without
an

injunction;

(3)

the

balance

of

the

equities

favors

an

injunction; and (4) an injunction is in the public interest.
Winter v. Nat’l Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).
Granting a preliminary injunction is “an extraordinary and drastic
remedy” that cannot be provided absent a plaintiff establishing
each element by a clear showing.

Mazurek v. Armstrong, 520 U.S.

968, 972 (1997); Real Truth About Obama, Inc. v. Fed. Election
Comm’n, 575 F.3d 342, 346 (4th Cir. 2009) (finding that “[a]ll
28

four requirements must be satisfied” in order for relief to be
granted), vacated on other grounds, 559 U.S. 1089 (2010).

It is

also not enough that Plaintiffs show a grave or serious question
for litigation; they must make a “clear” demonstration they will
“likely” succeed on the merits.

Real Truth About Obama, Inc., 575

F.3d at 346-47.
On the present record, NAACP Plaintiffs have failed to clearly
demonstrate that they are likely to succeed on the merits or that
the

balance

of

the

equities

or

public

interest

favors

an

injunction.
A.

Likelihood of Success on the Merits

North Carolina’s photo-ID law, as amended, is judged against
the standard set forth by the Supreme Court in Crawford v. Marion
Cnty. Election Bd., 553 U.S. 181 (2008). 19 SL 2013-381, as amended,
is clearly less burdensome than that found acceptable by the
Supreme Court there.

There was no accommodation in Crawford for

19

Although decided on § 2 grounds, Frank v. Walker, 768 F.3d 744, 747
(7th Cir. 2014) (Wisconsin), makes clear that any burden imposed by North
Carolina’s photo-ID requirement is less than that sustained by the
Seventh Circuit.
Any burden is also less than that which the Fifth
Circuit found to violate § 2 in Veasey v. Abbott, 796 F.3d 487, 513 (5th
Cir. 2015) (Texas). Neither Wisconsin’s nor Texas’s photo-ID requirement
provided an exception for those with a reasonable impediment. This court
is not aware of any case where a photo-ID requirement with a reasonable
impediment exception (like North Carolina’s) has been found to violate
either § 2 or § 5 of the VRA or the Fourteenth or Fifteenth Amendments
to the United States Constitution. This is likely because a reasonable
impediment exception is designed to accommodate those who Plaintiffs
claim are disparately burdened by an identification requirement.

29

those with a reasonable impediment; nevertheless, the Supreme
Court

held

that

Indiana’s

photo-ID

law

did

not

impose

“a

substantial burden on the right to vote, or even represent a
significant increase over the usual burdens of voting.”
198.

Id. at

To the extent that Crawford contemplates burdens imposed on

subclasses, 20 including the socioeconomically disadvantaged, the
reasonable

impediment

declaration

is

directly

designed

the

testimony

of

to

accommodate these individuals.
NAACP

Plaintiffs,

relying

on

Lorraine

Minnite, Ph.D., Associate Professor of Public Policy and Director
of the Urban Studies Program in the Department of Public Policy
and

Administration

at

Rutgers

University,

assert

that

North

Carolina’s photo-ID law “serves no rational public policy purpose”
because no actual voter fraud has been shown to exist in North
Carolina.

(Doc. 395-1 at 6-7.)

This position fails in light of

Crawford, where the Supreme Court thoroughly laid out the benefits

20

Justice Scalia viewed Justice Steven’s opinion as assuming that the
voter identification law “‘may have imposed a special burden on’ some
voters.” Crawford, 553 U.S. at 204 (Scalia, J., concurring)(quoting 553
U.S. at 199 (Stevens, J., lead opinion)). Justice Scalia and two other
Justices would have considered only the burden the law imposed on voters
generally, as opposed to any particular class of voters. Id. at 208.
To the extent that debate remains as to whether the applicable burden
under Anderson-Burdick is to be evaluated for subclasses, this court’s
analysis assumes as much because, even under that standard, Plaintiffs
have not proved a likelihood of success. See Ohio State Conference of
N.A.A.C.P. v. Husted, 768 F.3d 524, 543-44 (6th Cir. 2014) (discussing
the fractured opinion from Crawford and whether Anderson-Burdick
contemplates subclasses), vacated, 2014 WL 10384647 (6th Cir. 2014).

30

of

a

photo-ID

modernization,

requirement.
avoidance

533
of

U.S.

at

potential

safeguarding voter confidence).

192-200
voter

(election

fraud,

and

The legislative history of SL

2013-381 and the law itself indicate that the North Carolina
General Assembly sought to achieve the same end.

(Pl. Ex. 549 at

2-4 (“North Carolina is one of the last in the Southeast to
introduce [photo ID] for honesty and integrity in the electoral
process and we believe it will go a long way to building confidence
back in our voters and our citizens.”)); 2013 N.C. Sess. Laws 381
(stating that its purpose was to “to protect the right of each
registered voter to cast a secure vote with reasonable security
measures that confirm voter identity as accurately as possible
without restriction”); 2015 N.C. Sess. Laws 103 (stating that its
purpose was to “authorize voters who suffer from a reasonable
impediment

preventing

the

voter

from

obtaining

photo

identification to complete reasonable impediment declarations when
voting”).
Dr. Minnite simply disagrees with the Supreme Court and did
not

even

reference

Crawford

in

her

report,

Missouri Supreme Court case predating Crawford.
48; Pl. Ex. 232 at 22.)

instead

citing

a

(Doc. 355 at 47-

Indeed, at trial in this case, she

testified that the United States Supreme Court’s discussion of
fraud “doesn’t constitute an informed opinion or an informed
knowledge about voter fraud” because “it doesn’t sort of meet my
31

standards of having a correct understanding about the evidence.”
(Doc. 355 at 48.)

Even Dr. Minnite conceded at trial, however,

that the risk of voter fraud is “real in the sense that it could
happen” and while “[t]here is no evidence of extensive fraud in
U.S. elections or of multiple voting, . . . both occur and it could
affect the outcome of a close election.”

(Id. at 50-51.)

She

nevertheless discounts it, however, “in the sense that it likely
happens.”

(Id. at 49.)

North Carolina has sought to accommodate those expressing
genuine difficulties in acquiring photo ID, but it still has a
photo-ID requirement.

When the State did not have a reasonable

impediment exception, NAACP Plaintiffs claimed the burden imposed
on the socioeconomically disadvantaged was too severe.
the

State

reasonable

has

sought

impediment

to

accommodate

exception,

these

Plaintiffs

Now that

voters

with

the

claim

that

the

exception swallows the rule and that the State need not have a
photo-ID requirement.

This court finds any alleged diminution in

achieving the State’s purported interest to be more than offset by
the reduction of burden achieved by the reasonable impediment
exception.
Second, North Carolina’s reasonable impediment exception is
materially indistinguishable from South Carolina’s exception in
its photo-ID law that received judicial preclearance in South
Carolina,

898

F.

Supp.

2d

30.
32

There,

a

three-judge

panel

considered the alleged burden under § 5 of the VRA imposed by South
Carolina’s photo-ID law with a reasonable impediment provision.
South Carolina’s reasonable impediment provision permitted voters
to vote without photo ID “so long as they fill[ed] out an affidavit
at the polling place and indicate[d] the reason that they [had]
not obtained” a qualifying photo ID.

Id. at 35.

A key question

in that case was whether the exception would be interpreted broadly
or narrowly.

Id.

Although the law provided that a voter’s

statement of reasonable impediment must be accepted unless it is
false, merely denigrating the photo-ID law, or nonsensical, 21 the
law did not provide examples of what might constitute a reasonable
impediment or establish how the law was to be construed.

Id. at

36 & n.5. Accordingly, the court leaned heavily on representations
by the South Carolina Attorney General and the Executive Director
of

the

State

interpretation
implemented.

Board
of

of

the

Elections,
law

Id. at 35-36.

and

who

provided

described

how

an
it

official
would

be

Both officials provided a broad

interpretation of the provision and stated that a driving principle
of its implementation would be “erring in favor of the voter.”
Id. at 36.

The Attorney General also provided examples of reasons

21

To the extent NAACP Plaintiffs are concerned about the scope of the
“merely denigrates,” “obviously nonsensical,” and “factually false”
provisions in North Carolina’s reasonable impediment exception, these
track exactly the provisions in South Carolina’s law precleared by the
three-judge panel based on the broad interpretation provided by the
State. South Carolina, 898 F. Supp. 2d at 36-37 & n.5.

33

that would constitute a reasonable impediment and convinced the
court that, so long as the statement was not false, “[a]ny reason
that the voter subjectively deems reasonable will suffice.”
at 36.

Id.

The court ultimately adopted this broad interpretation as

a condition of preclearance.

Id. at 37.

The court required that

“filling out [the affidavit] must not become a trap for the unwary,
or a tool for intimidation or disenfranchisement of qualified
voters.”

Id. at 40.

Further, the court required the reasonable

impediment form to “have separate boxes that a voter may check for
‘religious objection’; ‘lack of transportation’; ‘disability or
illness’; ‘lack of birth certificate’; ‘work schedule’; ‘family
responsibilities’; and ‘other reasonable impediment.’”

Id. at 41.

Finally, the court mandated that the form may “require a further
brief written explanation from the voter only if he or she checks
the ‘other reasonable impediment’ box.”

Id.

So implemented, the

court found that filling out the form would not constitute a
material burden, at least under the VRA.
Upon

close

examination,

North

Id.
Carolina’s

reasonable

impediment provision is effectively a codification of the threejudge panel’s holding in South Carolina. As noted above, a voter’s
reasonable impediment declaration can only be rejected if it is
false,

denigrating

nonsensical.

to

the

photo-ID

requirement,

or

obviously

The law does not permit a voter’s declaration to be

denied on the ground that it is not reasonable.
34

N.C. Gen. Stat.

§ 163-182.1B(b)(6).

Only

the

voter’s

subjective

relevant to the issue of reasonableness.
law

clearly

reasonable

provides

that

impediment

in

See id.

considering

declaration,

“the

a

belief

Further, the

challenge

county

is

board

to

a

shall

construe all evidence presented in the light most favorable to the
voter submitting the reasonable impediment declaration.”
§ 163-182.1B(b)(5).

Id.

Finally, the law requires all reasonable

impediment forms to, “at a minimum,” contain practically the exact
same categories required by the panel in South Carolina.

The only

omission is that the law does not require a box for “religious
objection,” id. § 163-166.15(e), but this is because a separate
provision of the law grants an exception for those with religious
objections to having their photo taken, id. § 163-166.13(a)(2).
In fact, the law goes a step beyond what was required in South
Carolina by requiring that a box be listed for “[l]ost or stolen
photo identification.”

Id. § 163-166.15(e)(1)f.

As in South

Carolina, a voter need only provide a written explanation if one
of the provided boxes does not apply.
In

this

sense,

the

plain

Id. § 163-166.15(e)(1)h.

language

of

North

Carolina’s

reasonable impediment exception establishes that it is to be
broadly applied in favor of the voter.

Nevertheless, as noted

above, Director Strach has provided assurances under oath that
every advantage will be given to the voter in implementing the
exception.

Specifically, in a Rule 30(b) deposition on behalf of
35

the SBOE, Director Strach provided that the reasonable impediment
provision should be interpreted very broadly (Doc. 357-6 at 12);
the provision should be construed with all inferences in favor of
the voter (id.); election officials should err on the side of
viewing declarations in the light most favorable to the voter
(id.); the provision should be construed with all inferences in
favor of protecting the fundamental right to vote (id. at 13); if
CBOE officials have doubts, such doubts should be resolved in favor
of the vote being counted (id. at 15); it is up to the voter to
determine if he or she has a reasonable impediment, and a voter’s
belief that he or she has a reasonable impediment should not be
second-guessed (id.); poll workers and CBOEs do not have discretion
to determine if a voter’s explanation is not reasonable (id.);
poll workers and CBOE officials should not investigate or question
voters regarding the reasonableness of the impediments that they
identify (id.); and voters may get assistance from a person of
their choosing when executing a reasonable impediment declaration,
without first determining they are illiterate or suffer from a
disability (id. at 62-63).
NAACP Plaintiffs express some concern over the fact that
reasonable
ballots.

impediment

declarants

will

be

provided

provisional

Here, too, this issue was addressed by the panel in South

Carolina, which did not view it as problematic:

36

[T]he word ‘provisional’ is a bit of a misnomer in this
instance. [Provisional ballots cast due to a reasonable
impediment] must be counted and will be counted, at least
so long as the voter does not lie when he or she fills
out and signs the reasonable impediment affidavit.
Counting the reasonable impediment ballots will not
differ in substance from the counting of absentee
ballots. When the provisional ballot process operates
this way, casting a provisional ballot instead of a
regular ballot does not burden the right to vote.
898 F. Supp. 2d at 41.

Here, the text of the statute and the

SBOE’s representations require provisional ballots to be counted
so long as (1) an acceptable alternate form of identification can
be verified (last four digits of social security number and date
of birth, etc.) and (2) the stated reason is not factually false,
merely denigrating the requirement, or obviously nonsensical.

As

NAACP Plaintiffs indicate, although the Help America Vote Act of
2002,

52

U.S.C.

§§ 20901–21145

(formerly

42

U.S.C.

§§ 15301-

15545), requires provisional ballots to be given to voters in
certain circumstances, it only requires those ballots be counted
“in accordance with State law.”

52 U.S.C. § 21082(a)(4).

problem with NAACP Plaintiffs’ argument is two-fold.

The

First, it is

in conflict with Plaintiffs’ position at trial in July 2015, where
they advocated for OOP provisional ballots on the grounds that
they ameliorate burdens.

Accord South Carolina, 898 F. Supp. 2d

at 42 (“[T]he Supreme Court characterized provisional ballots as
curing problems and alleviating burdens, not as creating problems
and

imposing

burdens.”).

Second,

37

with

regard

to

reasonable

impediment declarants, North Carolina law provides for counting
these ballots.

Thus, Plaintiffs have failed to show that giving

reasonable impediment declarants a provisional ballot is likely to
impose a material burden on the right to vote.
For all these reasons, including the SBOE’s assurances on how
it

will

implement

the

reasonable

impediment

exception,

NAACP

Plaintiffs have failed to make a clear showing that the law will
be applied in a discriminatory manner. 22
Finally on this issue, NAACP Plaintiffs have failed to show
that there has been insufficient time to implement the reasonable
impediment

provision

in

the

March

2016

primary

election.

Plaintiffs rely on South Carolina for this proposition, but that
case is clearly distinguishable in this respect. First, when South
Carolina was decided, § 5’s preclearance requirement had prevented
South Carolina from initiating any steps to implement it.

Once

the law was precleared, preparations had to begin with the 2012
presidential general election fewer than four weeks away.
49.

Although South Carolina had had a voter-ID requirement for

several decades, it had never had a photo-ID requirement.
32.

Id. at

Id. at

Accordingly, the court expressed concern that the reasonable

impediment provision would be greatly relied upon, as there was

22

Defendants note that South Carolina’s photo-ID law, including the
reasonable impediment provision, was “enforced during elections in 2013
and 2014 without any evidence of an adverse effect on African American
turnout.” (Doc. 394 at 3 n.2.)

38

very little time for those without photo ID to acquire it.
50.

Id. at

Second, election officials in that case represented to the

court that it was too late for the law to be properly implemented
for the upcoming election.

Id. at 49.

Third, the law itself

called for nearly a year of education and training.
None of these is true here. 23

Id.

Even though North Carolina has

not held an election requiring a photo ID, for over two years it
has engaged in extensive efforts to educate voters about the need
for photo ID, offered free photo ID, and assisted individuals in
getting a photo ID.

In addition, the SBOE is confident that it

can implement the provision in the March 2016 primary.

The

evidence submitted by the parties indicates that as of November 4,
2014 - one year into the two-year education cycle — approximately
94% to 96% of registered North Carolina voters already possessed
qualifying identification. 24
43 (tbl. 7).)

(Doc. 394-1 at 8; Pl. Ex. 242 at 16,

As noted above, the SBOE sent those registrants who

23

To the extent NAACP Plaintiffs are asserting that the State is not
equipped to handle the burden of administering the reasonable impediment
exception in March 2016, it is noteworthy that voter turnout in North
Carolina presidential primaries is historically low. (See Def. Ex. 309
at 62 (tbl. 3) (stating that African American turnout was 25.4% in the
2012 presidential primary, compared to 70% in the 2012 presidential
general election).)
Thus, the number of voters expected to present
without photo ID will likely be a manageable number.
24

Plaintiffs’ expert, Dr. Charles Stewart estimated that, based on a
July 16, 2014 snapshot of the data, 6.1% of registered voters did not
have access to a qualifying ID. (Pl. Ex. 242, at 16, 43 (tbl. 7).) The
State’s no-match result, based on a November 4, 2014 snapshot of the
data, produced an estimate of approximately 3.9%. (See Doc. 394-1 at
8; Pl. Ex. 242 at 43 (tbl. 7).)

39

could not be matched to a qualifying photo ID a mailing regarding
the photo-ID requirement.

(Doc. 394-1 at 8-9.)

The mailing

“included a postage pre-paid response card that recipients were
asked to complete by confirming whether they had acceptable photo
ID, and indicating whether, if they did not, they would like
assistance in obtaining one.”

(Id. at 9.)

The SBOE went through

the same mailing process for those voters who claimed they did not
have a qualifying photo ID while voting in 2014.

(Id. at 7-8.)

An overwhelming majority of those who responded to the mailings
claimed they already have an acceptable photo ID. 25
6, and 8).)

(Id. (Exs. 4,

In addition, the SBOE has made substantial efforts to

assist those who responded that they needed assistance in acquiring

25

Based on the State’s no-match list, 218,097 registered voters were
contacted: 42,588 (19.5%) were returned undeliverable, 154,929 (71.0%)
did not respond, and 20,580 (9.4%) responded. (Doc. 394-1 (Ex. 6).) Of
those who responded, 18,729 (91%) claimed to have a photo ID, 633 (3%)
claimed they needed help in getting one, and 324 claimed they did not
have one but did not need help. (Id.) Based on Plaintiff’s expert Dr.
Charles Stewart’s no-match list, 209,253 registered voters were
contacted: 42,382 (20.3%) were returned undeliverable, 158,431 (75.7%)
did not respond, and 8,440 (4.0%) responded. (Id. (Ex. 8).) Of those
that responded, 6,427 (76%) claimed to have a qualifying photo ID, 782
(9%) claimed to need help, and 369 (4%) claimed they did not have one
but did not need help. (Id.) Based on those who claimed they did not
have qualifying photo ID while voting in 2014, 10,675 registered voters
were contacted: 34 (0.3%) were returned undeliverable, 8,288 (77.6%) did
not respond, and 2,353 (22%) responded. (Id. (Ex. 4).) Of those who
responded, 2,230 (95%) claimed they have a qualifying ID, 54 (2%) claimed
they needed help, and 28 (1%) claimed they did not have a photo ID but
did not need help. (Id.) Although the majority of contacted individuals
did not respond, the data nevertheless show that the no-match list data
overestimate the number of registered voters who do not have a qualifying
ID.

40

a photo ID. 26
Next, the SBOE has been creating educational materials about
the reasonable impediment provision since at least July 2015 (eight
months before the election), educating CBOEs about the provision
since August 2015 (seven months before the election), and educating
voters about the provision since at least November 2015 (four
months before the election).

Although many poll workers will need

to be educated, the reasonable impediment provision is an exception
to the photo-ID requirement that poll workers have been instructed
to describe to voters for the last four elections.

Consequently,

this is not a wholly new voter-ID law that needs to be implemented,
as in South Carolina.

Training on the photo-ID provision has been

ongoing, and the SBOE has held public hearings in nine cities
across North Carolina during the two-year roll-out.
at 36-37; Doc. 390-17 at 3-4.)

(Doc. 395-6

Based on the record, the training

on the reasonable impediment exception involves an issue likely to

26

For example, the SBOE represents that it has “been conducting followup with every voter who returned a response card indicating a need for
assistance or who received the mailing [described above but] opted to
contact SBOE by phone.” (Doc. 394-1 at 9.) Based on this effort, 1,592
cases were identified for follow-up based on the SBOE no-match mailing.
(Id.) As of December 11, 2015, the State represents that “all but eight
of those cases have been closed”; 212 indicated they already possess a
qualifying ID, 236 “obtained or will obtain acceptable photo ID after
receiving the information in the mailer,” and 620 had either “moved,
were deceased, or informed the SBOE staff that a voting method which
does not require photo ID was their preferred method.” (Id.) Similar
efforts have been made for those who claimed they did not have qualifying
ID while voting in 2014 and those identified by Dr. Stewart’s no-match
list. (See id. at 8-11.)

41

involve a small fraction (between 0% and 6%) of voters.

In light

of these facts, Plaintiffs have failed to demonstrate why the court
should discount Director Strach’s representation that training
election workers in the months preceding the March 2016 primary
will be sufficient, especially given her representation that such
training

has

“historically

[been]

conducted

in

the

months

immediately preceding an election,” and that there is “no precedent
for county boards of elections to train elections workers on new
elections procedures before the training they will receive for the
2016 elections.”
Finally,

(Doc. 394-1 at 5-6.)

NAACP

Plaintiffs

seek

to

enjoin

the

photo-ID

provision of SL 2013-381 on the grounds it was adopted with
discriminatory intent.

The question of discriminatory intent in

these cases – including as it related to the photo-ID requirement
- was fully tried by this court in July 2015.

As noted above, the

record in that case is extensive (over 20,000 pages), and the court
is working diligently to decide all claims related to all of the
other challenged provisions of SL 2013-381.

Thus, the court is

not prepared to definitively resolve that claim here, especially
since evidence as to the reasonable impediment exception has yet
to be heard at trial.

But the court has considered all evidence

of

that

intent

(including

related

to

other

the

challenged

provisions) and can say that, based on its current review, NAACP

42

Plaintiffs have not demonstrated that they are likely to succeed
on the merits of the photo-ID intent claim.
Discriminatory purpose “implies more than intent as volition
or intent as awareness of consequences.

It implies that the

decisionmaker, in this case a state legislature, selected or
reaffirmed a particular course of action at least in part ‘because
of,’

not

merely

‘in

identifiable group.”

spite

of,’

its

adverse

effects

upon

an

Pers. Adm’r of Mass. v. Feeney, 442 U.S.

256, 279 (1979) (citation and footnote omitted); Veasey v. Abbott,
796 F.3d 487, 498-99 (5th Cir. 2014) (“The appropriate inquiry is
not

whether

legislators

were

aware

of

[a

law’s]

racially

discriminatory effect, but whether the law was passed because of
that

disparate

impact.

Importantly,

although

discriminatory

effect is a relevant consideration, knowledge of a potential impact
is not the same as intending such an impact.” (internal citations
omitted)).

According to the Supreme Court, “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.”

Vill. of Arlington Heights v.

Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977).

In making such

an inquiry, courts look to a non-exhaustive list of factors from
Arlington Heights: whether the law bears more heavily on one race,
id. at 266; whether there is evidence of a consistent pattern of
actions by the decisionmaking body disparately impacting members
43

of a particular class of persons, id. at 267; the historical
background of the decision, id.; and contemporary statements by
decisionmakers on the record or in minutes of their meetings, id.
at 268. 27

This court has considered all of these in its totality

of the circumstances review.
Central to NAACP Plaintiffs’ intent claim is the argument
that any form of photo-ID requirement is not defensible on the
merits and thus must be pretext for racial motivation.

As is

evident by the discussion above, however, the Supreme Court has
already rejected that claim in Crawford and permitted Indiana’s
form of photo-ID requirement.

Moreover, proponents of North

Carolina’s photo-ID requirement campaigned on the issue, citing
popular

constituent

support.

At

the

time

legislators

were

considering North Carolina’s bill, some twenty other States had
enacted a photo-ID requirement.

(Pl. Ex. 231 at 135 (tbl. 47).)

A photo-ID requirement was not only countenanced, but actually
recommended by the 2005 bipartisan Carter-Baker Report, and SL
2013-381 provided for a two-year roll-out and for a free photo ID
to alleviate any burden on those who did not have a qualifying
photo ID, as recommended by the report.
Plaintiffs point to the fact that sponsors of the photo-ID

27 These statements should generally be by proponents and contemporaneous
with the legislature’s consideration of the bill. Veasey, 796 F.3d at
502. Plaintiffs do not point to any contemporaneous statements by any
proponent of the law as it relates to the photo-ID provision.

44

bill requested a cross-matching of registered voters who “have
neither a NC Driver’s License nor a NC Identification Card,” broken
down by all possible demographics that SBOE captures, including
“party affiliation, ethnicity, age, gender, etc.”
3-4.)

(Pl. Ex. 72 at

But this is not as nefarious as Plaintiffs suggest.

First,

at the time of Representative Harry Warren’s request on March 5,
2013, legislators would have been preparing for the first public
hearing on photo ID on March 12, 2013.

(See Pl. Ex. 127.)

Opponents frequently challenge voter photo-ID bills on the basis
of racial disparities in photo-ID possession.

Any responsible

legislator would need to know the disparities in order to properly
assess the bill and account for such challenges.

In fact, during

the preliminary injunction stage of this case, the United States
could not tell this court whether it would have been better or
worse for the State not to have requested demographic data.
179 at 219-20.)

(Doc.

Second, given that North Carolina was at the time

subject to preclearance under § 5, legislators would have needed
to know the racial impact of the voting changes in order to
evaluate

whether

they

were

even

feasible.

In

other

words,

evaluating racial impact is always an issue but was especially so
as it was a prerequisite to evaluating the likelihood that any
voting

change

would

not

be

retrogressive

precleared by the Attorney General.
seek

the

inference

that

thus

could

be

Accordingly, while Plaintiffs

legislators
45

and

requested

demographic

information because they sought to discriminate against African
Americans,

alternative

explanations

are

considerably

more

persuasive.
As for the process, the legislation followed all General
Assembly rules and procedures. 28

The bill was initially introduced

in April 2013 and passed all three readings under House Rule 41(a).
(Pl. Ex. 548 at 178.)

Those included public hearings during which

over seventy-five citizens from across the political spectrum had
the opportunity to speak (Pl. Ex. 130), a second hearing during
which the bill was discussed and additional public comments were
received (Pl. Ex. 545), and further debate where amendments were
adopted (Pl. Ex. 546).

The bill advanced, as amended, from the

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

(Id.; Pl. Exs. 547–48.)

Three amendments were

adopted, six others were rejected, and the bill passed “second
reading” on a roll-call vote of 80-36.

28

(Pl. Ex. 121; Pl. Ex. 548

While Plaintiffs criticize the later addition to the bill of the other
challenged provisions under a legislative process known as “gut and
amend,” see North Carolina State Conference of the N.A.A.C.P. v. McCrory,
997 F. Supp. 2d 322, 367 (M.D.N.C. 2014), the evidence further showed
that the procedure is not uncommon in the General Assembly. (Doc. 177
at 133 (testimony of Senator Dan Blue, an opponent of the bill,
acknowledging that gut-and-amend happens “quite a bit” and “too often”
in the General Assembly).) 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 House lest it
die for the remainder of the session. (Id. at 131-33.) 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. 178 at 85-89 (testimony of Rep.
Glazier).)

46

at 177.)

The bill subsequently passed “third reading,” on a vote

of 81-36, and was passed by the House.

(Pl. Ex. 548 at 178.)

Five

House Democrats joined all present Republicans in voting for the
photo-ID bill (Pl. Ex. 122 (noting roll call vote on April 24 third
reading)); Pl. Ex. 138 at 67–68, 77, 88), but none of the African
American

members

Representative
nevertheless

of

Rick

the

House

Glazier,

acknowledged

supported

who

that

it

strongly

“[f]or

a

(Pl.

Ex.

154).

opposed

the

bill,

large

bill,”

HB

589

received up to this point “the best process possible” in the House,
one he characterized as “excellent.”

(Doc. 178 at 56-57; see also

Pl. Ex. 25 at 8.)
NAACP Plaintiffs point to amendments to the bill made in July
2013, before its adoption but after the Supreme Court’s June 25,
2013 decision in Shelby County v. Holder, 133 S. Ct. 2612 (2013),
declaring

the

unconstitutional.

enforcement

formula

for

§ 5

of

the

VRA

The majority of the amendments were additions

relating to the other challenged provisions in these cases.

As

related to the photo-ID provision particularly, Plaintiffs point
to a reduction in certain forms of photo ID that previously had
been included in the bill.

For example, Plaintiffs’ expert Dr.

Allan Lichtman, Distinguished Professor of History at American
University, presented evidence that certain forms of photo ID that
were retained by SL 2013-381 — DMV IDs, expired IDs for those over
age seventy, U.S. passports, and veteran and military IDs — are
47

disproportionately held by whites, while the forms of photo ID not
retained by SL 2013-381 — student IDs, government employee IDs,
public assistance IDs, and expired IDs — are disproportionately
held by African Americans.

(Pl. Ex. 231 at 99 (tbl. 32); Pl. Ex.

716, AL 6.)

There is, however, no evidence that the legislature

knew

government

that

employee

IDs

or

expired

disproportionately held by African Americans.

IDs

were

In addition, it

would have been reasonable for the legislature to view expired IDs
as less secure and to strike a balance by allowing them for those
over age seventy but not allowing them for younger individuals. 29
It is reasonable to assume that those over age seventy are more
likely than younger individuals to suffer from negative health
making

a

DMV

visit,

or

continued

driving,

more

difficult.

Moreover, although Representative David Lewis sought data on the
number of student IDs created and the percentage of those who were
African American, the data that he was provided actually suggested
that African Americans were less likely to hold college IDs. 30

If

29

The General Assembly modified this balance in SL 2015-103 by permitting
certain DMV-issued IDs to be expired up to four years. 2015 N.C. Sess.
Laws 103, § 8.(a).
30

Representative Lewis’s original request was for system-wide numbers.
(Pl. Ex. 334 at 2.) But given that the University of North Carolina did
not have a way to pull the numbers for all seventeen campuses,
Representative Lewis was provided an estimate. (Id. at 1.) Assuming
that “you have to have [a student ID] for everything — library, food,
etc.,” the university system reasoned that an adequate approach would
be to provide numbers on the enrollment of African American students.
(Id.)
Accordingly, Representative Lewis was informed that African

48

Dr. Lichtman is correct that student IDs are disproportionately
held by African Americans (see Pl. Ex. 716, AL 6), then this result
is

counterintuitive

given

disparities in education.

Plaintiffs’

evidence

on

racial

Further, the legislature offered a

plausible explanation for excluding student IDs: (1) there was
inconsistency in the way college IDs were done (Pl. Ex. 202 at 6869) and (2) permitting student IDs would be redundant because some
schools require a photo ID to get a student ID (Pl. Ex. 138 at
13).

The removal of public assistance IDs, however, is somewhat

suspect. While there is no evidence that the legislature was aware
that public assistance IDs were disproportionately held by African
Americans, a reasonable legislator aware of the socioeconomic
disparities endured by African Americans could have guessed as
much.
Nevertheless,

in

light

of

all

the

evidence

—

including

Crawford, the legislature’s decision to provide free ID and for a
two-year soft roll-out, and the substantial evidence of State
interest submitted during trial 31 — this court cannot say that
Plaintiffs have carried their burden of showing SL 2013-381 was

Americans were 8.9% of students at UNC-Chapel Hill and 21.1% of students
at the UNC System as a whole. (Id.)
31

This court has also considered the evidence of intent as it relates
to the other challenged provisions of SL 2013-381.
In light of the
State’s proffered reasons for the law, this court cannot say that the
evidence establishes improper intent.

49

passed with discriminatory intent. 32

Further, even if this court

were to conclude otherwise, NAACP Plaintiffs are still not entitled
to a preliminary injunction in light of the balance of the equities
and public interest considerations discussed below.
B.

Balance of the Equities

NAACP Plaintiffs argue that the State will not suffer any
burden in continuing to administer elections under the “existing
regime” without a photo-ID requirement, while Plaintiffs will
suffer the burden of denial or abridgement of their right to vote
“due to confusion and intimidation.”

(Doc. 391 at 35.)

NAACP

Plaintiffs claim that voters will be deterred because they believe
a photo ID is required.

These arguments are unpersuasive.

As noted above, the State has engaged in substantial voter

32

Due to the findings above, this court need not consider how SL 2015103’s adoption of the reasonable impediment amendment — two years after
SL 2013-381 — reflects on the legislature’s intent. NAACP Plaintiffs
argue that the General Assembly’s intent in passing the amendment is
insufficient to carry Defendants’ burden of demonstrating that they would
have acted anyway in the absence of this improper factor, citing Hunter
v. Underwood, 471 U.S. 222, 228 (1985) (“Once racial discrimination is
shown to have been a ‘substantial’ or ‘motivating’ factor behind
enactment of the law, the burden shifts to the law’s defenders to
demonstrate that the law would have been enacted without this factor.”).
More precisely, NAACP Plaintiffs argue that there is no evidence that
SL 2015-103 was intended to “undo[] the racial intent” of SL 2013-381.
(Doc. 391 at 15.)
Because Plaintiffs have not shown racially
discriminatory intent sufficient to shift the burden to Defendants, the
court need not decide whether Plaintiffs’ limited consideration of SL
2015-103’s intent, which they do not support with any authority, is
correct.
It is clear that SL 2015-103 significantly ameliorates any
burden imposed by SL 2013-381, both laws were signed by the same
governor, and both will be enforced by the same SBOE. Moreover, the
photo-ID requirement North Carolina voters will actually encounter in
March 2016 will accommodate individuals with reasonable impediments.

50

education on the photo-ID requirement for over two years.

There

has been great publicity of the requirement, both in the public
eye and indeed through this litigation. The State has also engaged
in substantial efforts to implement the law.

Significantly, the

State has contacted every voter that it previously contacted — who
did not indicate they had a photo ID and for whom the SBOE had a
deliverable address — and advised them of the reasonable impediment
exception.

This

mailing

impediment

exception

as

prominently

the

first

listed

exception

the
to

reasonable

the

photo-ID

requirement. (Doc. 394-1 at 80-81.) In addition, since July 2015,
the State has also publicized, and is in continuing to publicize,
the reasonable impediment provision.

This latter education is

accelerating as the primary election approaches. So, to the extent
NAACP Plaintiffs seek to halt the effort now, two weeks before
trial and seven weeks before early voting is set to begin on March
3, it would impose substantial hardship on the Defendants.

And

while NAACP Plaintiffs seek to characterize their request as
preserving the status quo, the calculus has changed over the
passage of time.

The State’s active engagement in implementing

the photo-ID requirement has led voters to come to expect some
form of it.

At this late stage, it is the NAACP Plaintiffs who

are seeking to change the rules close to the election.
NAACP Plaintiffs are at least partially to blame for their
own emergency. They declined this court’s urging to try the photo51

ID issues in a September 2015 trial and chose not to move to enjoin
implementation

of

the

photo-ID

requirement,

reasonable impediment provision, earlier.

including

the

Rather, they waited

until now, on the eve of the January 25, 2016 trial, to do so.
They have been less than diligent in pursuing their rights in this
regard.
underway

Indeed, even now, and considering the significant efforts
to

conduct

the

March

2016

primary

election,

NAACP

Plaintiffs present substantial questions about whether this court
could even act.

See Purcell v. Gonzalez, 549 U.S. 1, 4-5 (2006);

Veasey v. Perry, 769 F.3d 890, 894-95 (5th Cir. 2014).
Finally, there is a fundamental flaw in Plaintiffs’ request.
NAACP Plaintiffs seek to enjoin the photo-ID requirement on the
grounds that voters without a qualifying photo ID will be deterred
by past education efforts and publicity from voting.
injunction will not fix this alleged problem.

But an

Merely eliminating

the photo-ID requirement will not encourage those voters to appear
at the polls.

Put another way, an injunction against the photo-

ID provision will have no benefit to a voter who wrongly believes
he needs a photo ID.

The only way to prevent the stay-at-home

voter under these circumstances would be for the court to also
order Defendants to educate voters that photo ID will not be
required for the March 2016 primary.

But NAACP Plaintiffs have

not requested this relief, nor have they explained how educating
these voters in that fashion will encourage them to appear at the
52

polls any more than advising them that they need not present a
photo-ID because they can sign a reasonable impediment affidavit.
Moreover,

insofar

as

Plaintiffs’

argument

is

that

there

is

insufficient time to adequately educate voters of the reasonable
impediment exception, their position is even weaker in support of
the education necessary to effectuate an injunction.
Given

the

substantial

efforts

underway

for

two

years

—

including those on the reasonable impediment exception since at
least November 2015 — and those to be conducted before the primary,
the court cannot say that the balance of the equities clearly tips
in favor of Plaintiffs.
C.

Public Interest

Finally, NAACP Plaintiffs argue that the public interest is
served by the prevention of the denial or abridgement of the right
to vote.

(Doc. 391 at 36.)

The public interest is served by “permitting as many qualified
voters to vote as possible” and “upholding constitutional rights.”
League of Women Voters of N.C., 769 F.3d at 247-48 (citations and
internal quotation marks omitted).

But the public interest is

also served by permitting legitimate and duly enacted legislation
to be enacted and by reducing voter confusion.

See, e.g., Serv.

Emps. Int’l Union Local 1 v. Husted, 698 F.3d 341, 346 (6th Cir.
2012). As noted above, NAACP Plaintiffs’ claim on voter deterrence
is speculative and, in any case, cannot be cured by an injunction.
53

In addition, NAACP Plaintiffs have failed to clearly demonstrate
that the State’s substantial educational efforts, including those
relating to the reasonable impediment exception, have failed to
prepare North Carolina voters for the photo-ID law.
opposite.

Quite the

Changing course in midstream will likely serve to

confuse voters as to the state of the law.
*

*

*

In sum, granting an injunction at this time would (1) negate
substantial and adequate educational efforts by the State, (2)
increase rather than ameliorate voter confusion, (3) offer only a
speculative benefit, and (4) excuse Plaintiffs’ delay.

As such,

in addition to finding above that the NAACP Plaintiffs are not
likely to succeed on the merits, the balance of the equities and
public interest do not favor an injunction.
III. CONCLUSION
For the reasons set forth above, NAACP Plaintiffs’ motion to
preliminarily

enjoin

SL

2013-381’s

photo-ID

requirement,

as

amended by SL 2015-103 and its reasonable impediment exception,
(Doc. 390) will be DENIED.

/s/
Thomas D. Schroeder
United States District Judge
January 15, 2016

54