Breaking and Analysis: Partially Divided 4th Circuit Strikes NC Strict Voting Law, Finds Discriminatory Intent

You can find the 83 pages of decisions at this link.

A partially divided panel of 4th Circuit judges reversed a massive trial court opinion which had rejected a number of constitutional and Voting Rights Act challenges to North Carolina’s strict voting law, a law I had said was the largest collection of voting rollbacks contained in a single law that I could find since the 1965 passage of the Voting Rights Act. The key part of the holding is that North Carolina acted with racially discriminatory intent. However, despite this finding of discriminatory intent, the 4th Circuit refused to use its discretion to put North Carolina back under federal supervision for up to 10 years for its voting. “Such remedies ‘[are] rarely used]’ and are not necessary here in light of our injunction.” Nonetheless, the finding of intentional discrimination could be the basis for a future argument for section 3 should North Carolina pass other discriminatory voting laws.

What happens next? North Carolina could decide to go along (there’s nothing to do on remand in this opinion as the 4th Circuit wrote it). Or it could seek to take the case to the 4th Circuit en banc or to the Supreme Court. The state could well go to the 4th Circuit en banc; although that court is not nearly as conservative as it once was, not sure what North Carolina has to lose. And NC could go to the Supreme Court, as the case presents the very rich question of what it means to to engage in racially discriminatory intent when race and party so overlap. (I addressed this question in this Harvard Law Review forum piece: Race or Party?: How Courts Should Think About Republican Efforts to Make it Harder to Vote in North Carolina and Elsewhere). It is not clear that the evenly divided and shorthanded Supreme Court will bite, and I expect any attempt to get emergency relief from the Supreme Court will fail.

The way the opinion is written, by taking Section 3 preclearance off the table, probably makes Supreme Court review less likely, but I wouldn’t count it out.

This is a very big win for voting rights plaintiffs and the DOJ: This decision is the third voting rights win in two weeks: first in Wisconsin, where a federal district court recently softened the state’s strict voter id law (an issue now on appeal to the Seventh Circuit), and then in Texas, where the en banc 5th circuit not only ordered the trial court to fashion such softening, but it also opened the door to a finding of discriminatory intent, which can put Texas under federal supervision as well. Still it is not a complete victory, given the failure to get NC back under a federal preclearance regime.

Here are some more detailed thoughts on the 4th Circuit opinion:

  1. The 4th Circuit goes out of its way to commend the trial court for its carefulness and thoroughness (something I noted in my own analysis). But “In holding that the legislature did not enact the challenged provisions with discriminatory intent, the court seems to have missed the forest in carefully surveying the many trees. This failure of perspective led the court to ignore critical facts bearing on legislative intent, including the inextricable link between race and politics in North Carolina.” It explained: “In North Carolina, restriction of voting mechanisms and procedures that most heavily affect African Americans will predictably redound to the benefit of one political party and to the disadvantage of the other. As the evidence in the record makes clear, that is what happened here.” And: “In response to claims that intentional racial discrimination animated its action, the State offered only meager justifications. Although the new provisions target African Americans with almost surgical precision, they constitute inapt remedies for the problems assertedly justifying them and, in fact, impose cures for problems that did not exist. Thus the asserted justifications cannot and do not conceal the State’s true motivation.”
  2. The 4th Circuit here takes the opposite approach of the 5th Circuit. While the 5th Circuit decided everything on discriminatory effect grounds, leaving the discriminatory intent question for another day (either is enough to get relief under Section 2, but a finding of discriminatory intent gets a broader remedy, apparently), the 4th Circuit reached only discriminatory intent, and did not decide other issues. This is controversial, because it means that the 4th Circuit held that the trial court’s findings were “clearly erroneous” (a very tough standard to meet on appeal), and the only rational conclusion from the evidence is that NC acted with racially discriminatory intent.
  3. Now what is meant by racially discriminatory intent? In the 5th Circuit case, it seems the court there said that acting with knowledge of effects on minority voters is just as bad as acting with that purpose. (See my analysis of the 5th Circuit opinion here.) The 4th Circuit offered a similar, though not identical, analysis: “But intentionally targeting a particular race’s access to the franchise because its members vote for a particular party, in a predictable manner, constitutes discriminatory purpose. This is so even absent any evidence of race-based hatred and despite the obvious political dynamics.” And later there is this key part: “Our conclusion does not mean, and we do not suggest, that any member of the General Assembly harbored racial hatred or animosity toward any minority group. But the totality of the circumstances — North Carolina’s history of voting discrimination; the surge in African American voting; the legislature’s knowledge that African Americans voting translated into support for one party; and the swift elimination of the tools African Americans had used to vote and imposition of a new barrier at the first opportunity to do so — cumulatively and unmistakably reveal that the General Assembly used SL 2013-381 to entrench itself. It did so by targeting voters who, based on race, were unlikely to vote for the majority party. Even if done for partisan ends, that constituted racial discrimination.” (In a footnote on page 47, the court quotes a Daily Show interview in which a NC Republican party official made racist statements. The court says the statement did not show the intent of the legislature directly but indicated the political atmosphere.)
  4. Here is the key language on why the 4th Circuit found the district court clearly erroneous on the intent question: “The district court failed to take into account these cases and their important takeaway: that state officials continued in their efforts to restrict or dilute African American voting strength well after 1980 and up to the present day. Only the robust protections of § 5 and suits by private plaintiffs under § 2 of the Voting Rights Act prevented those efforts from succeeding. These cases also highlight the manner in which race and party are inexorably linked in North Carolina. This fact constitutes a critical — perhaps the most critical — piece of historical evidence here. The district court failed to recognize this linkage, leading it to accept ‘politics as usual; as a justification for many of the changes in SL 2013-381. But that cannot be accepted where politics as usual translates into race-based discrimination.”
  5. The 4th Circuit rejected the argument that NC’s cutbacks cannot be evidence of discriminatory intent because the rules for voting were still more generous than in other states. “The district court discounted the claim that these provisions burden African Americans, citing the fact that similar election laws exist or have survived challenges in other states. But the sheer number of restrictive provisions in SL 2013-381 distinguishes this case from others. Moreover, removing voting tools that have been disproportionately used by African Americans meaningfully differs from not initially implementing such tools.” This is an importation of non-retrogression ideas from section 5, at least in the discriminatory intent context. And the court found that the rise in African-American turnout did not negate a finding of discriminatory intent. “Moreover, although aggregate African American turnout increased by 1.8% in 2014, many African American votes went uncounted. As the district court found, African Americans disproportionately cast provisional out-of-precinct ballots, which would have been counted absent SL 2013-381. See N.C. State Conf., 2016 WL 1650774, at *63. And thousands of African Americans were disenfranchised because they registered during what would have been the same-day registration period but because of SL 2013-381 could not then vote.”
  6. The 4th Circuit says remand is not necessary because the trial court created and described an extensive record. It just weighed the facts in clearly erroneous way. And the law under conditions of racial discrimination cannot be justified to prevent voter fraud. “Thus, we do not ask whether the State has an interest in preventing voter fraud — it does — or whether a photo ID requirement constitutes one way to serve that interest — it may — but whether the legislature would have enacted SL 2013-381’s photo ID requirement if it had no disproportionate impact on African American voters. The record evidence establishes that it would not have.” In any case, the Court makes the point I have made in The Voting Wars and many others have made. If you want to stop fraud, you don’t use ID, which targets virtually non-existent voter impersonation fraud. You go after absentee balloting, where fraud actually does occur. But that’s not what this law did. The law also excluded the types of ids likely held by African-Americans for no discernible anti-fraud purpose.
  7. The court marched through the other provisions of the law and the state’s justifications, calling them “a solution in search of a problem.” “The record thus makes obvious that the ‘problem’ the majority in the General Assembly sought to remedy was emerging support for the minority party.”
  8. As to remedy, the court did not enjoin the entire law, because much of the law went unchallenged and could be severed from the unconstitutional parts. “Therefore, we enjoin only the challenged provisions of SL 2013-381 regarding photo ID, early voting, same-day registration, out-of-precinct voting, and preregistration.” However, the court divided on whether remand was appropriate in part on the voter id law, to figure out if the reasonable impediment voter id softening was good enough to solve the discriminatory intent problem. The majority said no remand was necessary (the dissent, written by Judge Motz, who otherwise wrote the majority opinion, would have remanded.) The majority found the reasonable impediment softening was not good enough (a position I’ve taken). “To the contrary, the record establishes that the reasonable impediment exception amendment does not so fundamentally alter the photo ID requirement as to eradicate its impact or otherwise ‘eliminate the taint from a law that was originally enacted with discriminatory intent.'” This is the only issue on which the judges divided.
  9. Perhaps most surprising to me is the refusal to consider putting Section 3 preclearance in place. It is within the discretion of the court. Declining to do so does lower the temperature, and perhaps that explains it. Or perhaps the judges felt they would have had to remand to the trial court, who (given the trial court’s views of the plaintiffs’ case) certainly would have declined to exercise discretion, setting up the possibility of yet another major reversal of the trial court on grounds where the trial court ordinarily would have great discretion.

[This post has been updated.]

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