Breaking: Federal Court Denies Preliminary Injunction in North Carolina Voting Case – Analysis

You can read the 125-page ruling here.

I have now had a chance to quickly read the district court’s 125-page ruling in this case.  Here are my initial thoughts.

1. This is a careful, well-written and well-reasoned decision rejecting the U.S. and private plaintiffs’ Voting Rights Act and constitutional claims against some key provisions of strict North Carolina’s voting law passed last year. The opinion was only on a preliminary injunction, the court did not reach all the legal issues presented (and was tentative on some of the conclusions regarding some parts of the law) and it did not opine much on the voter id portion of the law. But this is an opinion in which the court expressed great skepticism about the use of either Section 2 of the Voting Rights Act or the U.S. Constitution’s equal protection clause to protect voting rights in a strong way. If this ruling stands, it shows that Section 2 and the Constitution’s Equal Protection Clause are poor substitutes in protecting voting rights for Section 5 of the Voting Rights Act, which the Supreme Court gutted in its Shelby County opinion from last year.

2. This ruling is at odds with the other major ruling on the use of Section 2 in these vote denial cases, the Frank v. Walker case. That case was a voting rights plaintiffs lawyer’s dream, reading Section 2 of the VRA and the Constitution’s equal protection clause expansively to broadly protect voting rights. That case is currently on appeal to the Seventh Circuit. Today’s case could well be appealed to the Fourth Circuit.  Eventually one or more of these cases could make it to the Supreme Court. Given the current conservative orientation of a majority of the Supreme Court, it seems likely that a Court majority would be more attracted to the narrow reading of Section 2 offered in today’s ruling compared to the broad ruling in Frank v. Walker.

3. Under the old Section 5 of the VRA, the question was one of “nonretrogression:” one compared the conditions for minority voters under an old law and a proposed new law. If the state could not demonstrate that the proposed new law did not make minority voters worse off, then the law could not be put into effect. Today, the judge in North Carolina said that section 2 did not include a similar nonretrogression standard. Thus, in deciding whether a cutback from 10 to 7 days of early voting violated Section 2 of the Act, the question was not whether 7 was worse than 10, but whether 7 days standing alone made it much harder for minority voters to participate in the political process on the same basis as other voters. The court held that there were still ample opportunities to vote under even the truncated dates, and especially in a midterm election where turnout is not expected to be a big problem. The court also seemed to require more proof of causation in the section 2 context than the Frank v. Walker court believed is necessary.

4. Importantly, the court today rejected evidence offered that the North Carolina legislature passed its laws out of a racially discriminatory intent. The judge seemed to believe that some of it was motivated by partisanship, not race and held that this did not constitute proof of racial discrimination. (I have written about this issue and the difficulty of disentangling the two standards in Race or Party? How Courts Should Think About Republican Efforts to Make it Harder to Vote in North Carolina and Elsewhere, 127 Harvard Law Review Forum 58 (2014).)  But the big significance of a finding (at least preliminarily) of no intentional discrimination is that this means that DOJ will have a hard time getting North Carolina covered again under the preclearance provisions of the Voting Rights Act. Section 3 of the Act gives a court discretion to impose a preclearance regime on a jurisdiction found to have engaged in intentional discrimination in violation of the 14th or 15th amendments. Without such a finding, however, the state cannot be put back under preclearance.

5. The trial court refused to say much about the “novel” theory that the law violates the 26th amendment in discriminating against young voters (particularly in the elimination of the preregistration for 16 and 17 year olds. But the court did note that this claim was brought for 10 voters and not for all voters in this class, which could make it hard to prove that the law will hamper these particular voters from voting. My sense is that the court will likely sidestep the meaning of the 26th amendment here.

6. In sum, I had always thought that using section 2 of the VRA (or the Constitution’s equal protection clause) to challenge the elimination of same day registration, a cutback in the number of days of early voting, and similar provisions would be an uphill battle. This opinion proves today that this is correct. Unlike the wooden, unthinking opinion about voter id which we recently saw from the Wisconsin Supreme Court, this opinion rejecting the claim of voting rights plaintiffs is careful, considered and reasonable. While Frank v. Walker also presents a reasonable alternative way of reading the scope of voting rights protections after Shelby County, it is this opinion that is more likely to represent how the Supreme Court would view these issues if and when these cases make it to the Supreme Court.

[This post has been updated.]

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