The Fourth
Circuit Court of Appeals has struck down provisions of Gov. Pat McCrory’s “omnibus”
election law requiring photo identification in form blacks are less likely to
have and requiring changes to early voting, same-day registration,
out-of-precinct voting, and preregistration all in ways carefully calculated to
adversely affect black voters. The full
text of the opinion merits careful reading and can be found here. The bill’s “almost surgical precision” (the
Court’s words) in disenfranchising black voters should shock everyone’s
conscience regardless of party affiliation.
Though
highlights of the opinion are no substitute for reading the entire opinion, I
realize not everyone will have time to read the entire opinion. I therefore have redacted some of the
critical language and insert it below in the order appearing in the
opinion. I have omitted or shortened internal
citations and have bolded certain provisions that seemed particularly important
to me. Although this is no substitute
for reading the opinion in full, here goes:
In holding that the legislature did not enact the challenged
provisions with discriminatory intent, the [district
court below] 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.
After years of preclearance and expansion of voting access,
by 2013 African American registration and turnout rates had finally reached
near-parity with white registration and turnout rates. African Americans were
poised to act as a major electoral force. But, on the day after the Supreme Court issued Shelby County v. Holder, 133
S. Ct. 2612 (2013), eliminating preclearance obligations, a leader of the party
that newly dominated the legislature (and the party that rarely enjoyed African
American support) announced an intention to enact what he characterized as an
“omnibus” election law. Before enacting
that law, the legislature requested data on the use, by race, of a number of
voting practices. Upon receipt of the race data, the General Assembly enacted
legislation that restricted voting and registration in five different ways, all
of which disproportionately affected African Americans.
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.
Faced with this record, we can only conclude that the North Carolina General Assembly enacted
the challenged provisions of the law with discriminatory intent. Accordingly,
we reverse the judgment of the district court to the contrary and remand with
instructions to enjoin the challenged provisions of the law.
In particular, between 2000 and 2012, when the law provided
for the voting mechanisms at issue here and did not require photo ID, African
American voter registration swelled by 51.1%. (compared to an increase of 15.8% for white
voters). African American turnout similarly surged, from 41.9% in 2000 to 71.5%
in 2008 and 68.5% in 2012. Not coincidentally, during this period North
Carolina emerged as a swing state in national elections.
In this one statute, the North Carolina legislature imposed a
number of voting restrictions. The law required in-person voters to show
certain photo IDs, beginning in 2016, which African Americans
disproportionately lacked, and eliminated or reduced registration and voting
access tools that African Americans disproportionately used. Moreover, as the
district court found, prior to enactment
of SL 2013-381, the legislature requested and received racial data as to usage
of the practices changed by the proposed law.
This data showed that African Americans disproportionately
lacked the most common kind of photo ID, those issued by the Department of
Motor Vehicles (DMV). The pre-Shelby County version of SL 2013-381 provided
that all government-issued IDs, even many that had been expired, would satisfy
the requirement as an alternative to DMV-issued photo IDs. After Shelby County,
with race data in hand, the legislature
amended the bill to exclude many of the alternative photo IDs used by African
Americans. As amended, the bill retained only the kinds of IDs that white
North Carolinians were more likely to possess.
The racial data
provided to the legislators revealed that African Americans disproportionately
used early voting in both 2008 and 2012. (trial evidence showing that 60.36% and 64.01%
of African Americans voted early in 2008 and 2012, respectively, compared to
44.47% and 49.39% of whites). In particular, African Americans
disproportionately used the first seven days of early voting. After
receipt of this racial data, the General Assembly amended the bill to eliminate
the first week of early voting, shortening the total early voting period
from seventeen to ten days. As a result, SL 2013-381 also eliminated one of two “souls-to-the-polls” Sundays in which African
American churches provided transportation to voters.
The legislature’s
racial data demonstrated that, as the district court found, “it is indisputable that African American voters disproportionately
used [same-day registration] when it was available.” The district court
further found that African American registration applications constituted a
disproportionate percentage of the incomplete registration queue. And the court
found that African Americans “are more
likely to move between counties,” and thus “are more likely to need to
re-register.” As evidenced by the types of errors that placed many African
American applications in the incomplete queue, in-person assistance likely
would disproportionately benefit African Americans. SL 2013-381 eliminated same-day registration.
The district court found that the racial data revealed that African Americans disproportionately voted
provisionally. In fact, the General
Assembly that had originally enacted the out-of-precinct voting legislation had
specifically found that “of those registered voters who happened to vote
provisional ballots outside their resident precincts” in 2004, “a
disproportionately high percentage were African American.” With SL 2013-381, the General Assembly
altogether eliminated out-of-precinct voting.
African Americans also
disproportionately used preregistration. Preregistration permitted 16- and 17-year-olds, when
obtaining driver’s licenses or attending mandatory high school registration
drives, to identify themselves and indicate their intent to vote. This allowed
County Boards of Elections to verify eligibility and automatically register
eligible citizens once they reached eighteen. Although preregistration increased turnout among young adult voters, SL
2013-381 eliminated it.
We hold that the
challenged provisions of SL 2013-381 were
enacted with racially discriminatory intent in violation of the Equal
Protection Clause of the Fourteenth Amendment and § 2 of the Voting Rights Act.
Using race as a proxy for party may be an effective way to
win an election. 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. A state
legislature acting on such a motivation engages in intentional racial
discrimination in violation of the Fourteenth Amendment and the Voting Rights
Act.
The record
is replete with evidence of instances since the 1980s in which the North
Carolina legislature has attempted to suppress and dilute the voting rights of
African Americans.
And only a few months ago (just weeks before the district court issued its opinion in the case
at hand), a three-judge court
addressed a redistricting plan adopted by the same General Assembly that
enacted SL 2013-381. Harris v. McCrory (M.D.N.C. Feb. 5, 2016). The court held that race was the predominant motive
in drawing two congressional districts, in violation of the Equal Protection Clause.
As one of the State’s
experts conceded, “in North Carolina, African-American race is a better
predictor for voting Democratic than party registration.”
As “evidence of justifications” for the changes to early
voting, the State offered purported inconsistencies in voting hours across
counties, including the fact that only some counties had decided to offer Sunday
voting. The State then elaborated on its
justification, explaining that “[c]ounties with Sunday voting in 2014 were
disproportionately black” and “disproportionately Democratic.” In response,
SL 2013-381 did away with one of the two days of Sunday voting. Thus, in what comes as close to a smoking gun as we
are likely to see in modern times, the State’s very justification for a
challenged statute hinges explicitly on race -- specifically its concern that
African Americans, who had overwhelmingly voted for Democrats, had too much
access to the franchise.
The record shows that, immediately after Shelby County, the
General Assembly vastly expanded an earlier photo ID bill and rushed through
the legislative process the most restrictive voting legislation seen in North
Carolina since enactment of the Voting Rights Act of 1965. The district court
erred in refusing to draw the obvious inference that this sequence of events
signals discriminatory intent.
This hurried pace,
of course, strongly suggests an attempt
to avoid in-depth scrutiny. Indeed, neither
this legislature -- nor, as far as we can tell, any other legislature in the
Country -- has ever done so much, so fast, to restrict access to the franchise.
Instead, this sequence of events -- the General Assembly’s
eagerness to, at the historic moment of Shelby County’s issuance, rush through the legislative process the
most restrictive voting law North Carolina has seen since the era of Jim Crow --
bespeaks a certain purpose. Although this factor, as with the other Arlington
Heights factors, is not dispositive on its own, it provides another compelling
piece of the puzzle of the General Assembly’s motivation.
In sum, relying on
this racial data, the General Assembly enacted legislation restricting all --
and only -- practices disproportionately used by African Americans.
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. 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. Furthermore, the district court failed to
acknowledge that a 1.8% increase in
voting actually represents a significant decrease in the rate of change. For
example, in the prior four-year period, African American midterm voting had
increased by 12.2%.
Registration and voting
tools may be a simple “preference” for many white North Carolinians, but for
many African Americans, they are a necessity.
Any individual piece of evidence can seem innocuous when
viewed alone, but gains an entirely different meaning when considered in
context.
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.
The photo ID
requirement here is both too restrictive and not restrictive enough to
effectively prevent voter fraud. First, the photo ID
requirement, which applies only to
in-person voting and not to absentee voting, is too narrow to combat fraud.
On the one hand, the State has failed to
identify even a single individual who has ever been charged with committing
in-person voter fraud in North Carolina. On the other, the General Assembly
did have evidence of alleged cases of
mail-in absentee voter fraud. Notably, the legislature also had evidence
that absentee voting was not disproportionately used by African Americans;
indeed, whites disproportionately used
absentee voting. The General Assembly then exempted absentee voting from the photo ID requirement. This was so even though members of the General
Assembly had proposed amendments to require photo ID for absentee voting, and
the bipartisan State Board of Elections specifically
requested that the General Assembly remedy the potential for mail-in absentee
voter fraud and expressed no concern about in-person voter fraud.
The photo ID requirement is also too broad, enacting
seemingly irrational restrictions unrelated to the goal of combating fraud.
This overbreadth is most stark in the General Assembly’s decision to exclude as acceptable identification all
forms of state-issued ID disproportionately held by African Americans. The
State has offered little evidence justifying these exclusions. Review of the record further undermines the
contention that the exclusions are tied to concerns of voter fraud. This is so
because voters who lack qualifying ID
under SL 2013-381 may apply for a free voter card using two of the very same
forms of ID excluded by the law. Thus, forms
of state-issued IDs the General Assembly deemed insufficient to prove a voter’s
identity on Election Day are sufficient if shown during a separate process to a
separate state official. In this way, SL 2013-381 elevates form over
function, creating hoops through which certain citizens must jump with little
discernable gain in deterrence of voter fraud.
But, in the broader context of SL 2013-381’s multiple
restrictions on voting mechanisms disproportionately used by African Americans,
we conclude that the General Assembly
would not have eliminated same-day registration entirely but-for its
disproportionate impact on African Americans.
In sum, the array of electoral “reforms” the General Assembly
pursued in SL 2013-381 were not tailored
to achieve its purported justifications, a number of which were in all
events insubstantial. In many ways, the challenged provisions in SL 2013-381
constitute solutions in search of a
problem. The only clear factor
linking these various “reforms” is their impact on African American voters. The
record thus makes obvious that the “problem” the majority in the General
Assembly sought to remedy was emerging support for the minority party.
Identifying and restricting the ways African Americans vote was an easy and
effective way to do so. We therefore must conclude that race constituted a
but-for cause of SL 2013-381, in violation of the Constitutional and statutory
prohibitions on intentional discrimination.
We therefore reverse the judgment
of the district court. We remand the
case for entry of an order implementation of SL 2013-381’s photo ID requirement
and changes to early voting, same-day registration, out-of-precinct voting, and
preregistration.
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