The 4th Circuit on a 2-1 vote (on a panel made up of all Democratic appointees) has issued an opinion requiring North Carolina to restore same day voter registration and the counting of out of precinct ballots in the upcoming election. The majority offers a generous but reasonable reading of the scope of section 2 of the Voting Rights Act. The main difference with the dissent is over the question whether making these changes now is going to cause confusion and impose a burden on election officials and the state in light of Supreme Court admonitions not to change election rules so close to the election.
This is a case that North Carolina could take to the 4th Circuit en banc, although given the press of time I expect they will go right to the Supreme Court. I would not be surprised to see the Supreme Court reverse this 4th Circuit panel decision on the same 5-4 conservative/liberal lines that we saw earlier this week in the Ohio voting case. That would not necessarily mean that the Court would reject the broad reading of section 2 of the Voting Rights Act offered today by the 4th Circuit. The split could be over the issue, also present in the 7th Circuit Wisconsin voter id case (which could head to the Supreme Court today) about the dangers of courts changing election rules just before the election.
Here is some more detailed analysis:
1. The 2-1 vote of the district court reversed only some of the challenged voting practices: the elimination of same-day voter registration and the prohibition on counting out-of-precinct ballots. It upheld the district court’s denial of a preliminary injunction to block “(i) the reduction of early-voting days; (ii) the expansion of allowable voter challengers; (iii) the elimination of the discretion of county boards of elections to keep the polls open an additional hour on Election Day in “extraordinary circumstances”; (iv) the elimination of pre-registration of sixteen- and seventeen-year-olds who will not be eighteen years old by the next general election; and (v) the soft roll-out of voter identification requirements to go into effect in 2016.” It said that plaintiffs may prevail on these claims later, but did not make enough of a showing to get a preliminary injunction. The dissenting judge would have blocked none of these changes before the election.
2.The majority quickly rejects the attempt to restore early voting in time for this election because of the hardship it says would fall on the state and election boards in rolling out early voting in just two weeks. As to the denial of a stop of the “soft roll out” of the voter id law, the court wrote that “While we share Plaintiffs’ concern that requiring poll workers to implement the soft rollout without adequate training might result in some confusion, we are unable to find that the district court committed clear error in deeming this argument ‘speculative.'”
3. As to the reversal of the district court on same day voting and out of precinct voting, the appellate court found the trial court abused its discretion in not granting a preliminary injunction on these practices, finding them a likely violation of Section 2 of the Voting Rights Act. (The majority did not reach whether the trial court was correct in rejecting the plaintiffs’ constitutional claims, as that was not necessary for decision.} The majority first explained why vote denial claims should be brought under Section 2:
Everyone in this case agrees that Section 2 has routinely been used to address vote dilution—which basically allows all voters to ‘sing’ but forces certain groups to do so pianissimo. Vote denial is simply a more extreme form of the same pernicious violation—those groups are not simply made to sing quietly; instead their voices are silenced completely. A fortiori, then, Section 2 must support vote-denial claims.
The court then adopted a broad “totality of the circumstances” test for judging a section 2 vote denial claim, something very much like the trial court and Sixth Circuit adopted in the Ohio early voting case (now stayed by the Supreme Court, though the stay gets a bare citation in the opinion). And like the Sixth Circuit opinion, the 4th circuit here holds that NC’s decision to make things harder, a kind of retrogression, is relevant to the “totality of the circumstances” test. (This is important because it can explain why a cutback in a voting practice could violate section 2 of the VRA while a state which always had a less generous voting practice is not in violation of section 2.)
4. Looking at the totality of the circumstances, the court concludes the history of the rollback after Shelby County is very relevant here:
Immediately after Shelby County, i.e., literally the next day, when “history” without the Voting Rights Act’s preclearance requirements picked up where it left off in 1965, North Carolina rushed to pass House Bill 589, the “full bill” legislative leadership likely knew it could not have gotten past federal preclearance in the pre–Shelby County era. McCrory, 997 F. Supp. 2d at 336. Thus, to whatever extent the Supreme Court could rightly celebrate voting rights progress in Shelby County, the post-Shelby County facts on the ground in North Carolina should have cautioned the district court against doing so here.
5. Looking at local factors and history, and and undisputed evidence that the changes in same day registration and provisional balloting disproportionately fall on minority voters, the 4th circuit majority concluded there was likely a section 2 Voting Rights Act violation and the district court abused its discretion in concluding otherwise. It said that NC’s bureaucratic inefficiencies and under-resourcing could not justify these rules, even if narrower voting practices exist elsewhere: “At the end of the day, we cannot escape the district court’s repeated findings that Plaintiffs presented undisputed evidence showing that same-day registration and out-of-precinct voting were enacted to increase voter participation, that African American voters disproportionately used those electoral mechanisms, and that House Bill 589 restricted those mechanisms and thus disproportionately impacts African American voters.”
6. Judge Motz, the dissenting judge offered two basic reasons for dissenting on the issue of same day voter registration and provisional balloting. First, the judge found that the trial court’s decisions that the laws cumulatively would not hurt minority voters was not clearly erroneous. “The [trial] court rejected as unpersuasive evidence offered that constricting the early voting period assertedly would create long lines at the polls, McCrory, 997 F. Supp. 2d at 372, affect black voters disproportionately, id., or cut down on Sunday voting hours in the upcoming election. Id. at 373. So too with same-day registration: the district court rejected Appellants’ assertions that eliminating same-day registration would cause registration rates among black North Carolinians to drop. Id. at 350. Whatever the wisdom of these factual findings, they are not clearly erroneous.” The judge said she might have reached a different decision in reviewing the record, and that the judge should have looked at the laws cumulatively and not piece by piece.
7. Second, and perhaps more importantly, Judge Motz in dissent said that the Supreme Court’s Purcell v. Gonzalez case means that the 4th Circuit should not be changing election rules so close to the election. (This is the key issue in the Wisconsin voter id appeal which could be heading to the Supreme Court at any moment.) The dissent said that this ruling will change the status quo, when sate election officials are ill prepared to make these changes, and it is being done for a duly enacted statute which has not been finally found to be illegal. The majority’s response is to (a) distinguish Purcell as a case where the Ninth Circuit provided no reasons and (b) to argue that these new rules, although risking some voter confusion, will err on the side on enfranchising voters and thereby serve as a safety net.
[This post has been updated.]