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Expedited Appeal Granted in Challenge to N.C.'s New Voting Laws

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By William Peacock, Esq. on September 12, 2014 1:04 PM

Set your clocks folks: An appeal of a denied injunction that would block all or most of North Carolina's new voting laws, including voter ID provisions and restricted early voting times, is set for September 25, less than two weeks from now, reports NC Policy Watch.

The appeal comes from a district court judge's denial of the plaintiffs' request to block House Bill 589 (the "monster voting bill"). Judge Thomas D. Schroeder, in a 125-page decision, held that the plaintiffs were unable to show a substantial likelihood of success and irreparable harm, largely because fewer people vote in mid-term elections.

Crucially, Judge Schroeder didn't dismiss the case altogether, which means the challenge can go forward regardless of the Fourth Circuit's ruling -- this dispute only applies to blocking the laws from applying to this year's November election.

Key Dates

  • Wednesday, September 17: Briefs due for both sides
  • Thursday, September 25: Oral arguments
  • Wednesday, July 15, 2015: Currently scheduled district court trial date

With oral arguments set for September 25, one can expect a ruling shortly thereafter -- likely within a week or two, considering how quickly the November elections are approaching. The state will need time to adjust its voting procedures, regardless of whether or not an injunction is granted.

Key Issues

Section 2 of the Voting Rights Act

Since Section 5 is all but dead, Judge Schroeder's opinion highlighted that Section 2 is very different from its more popular sibling, and far less protective of voters' rights. Professor Rick Hasen explains:

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.

Interestingly, Prof. Hasen also points out that a case in the Seventh Circuit, Frank v. Walker, came out differently, with a far more expansive reading of Section 2. He notes that either case could be appealed to the Supreme Court, where, given the conservative majority and the gutting of Section 5 by that Court, a narrower reading would likely prevail.

No Harm in a Midterm

One of the key points of Judge Schroeder's ruling was that there was no showing of irreparable harm for this election. He was careful to limit the holding, writing, "The court expresses no view as to the effect of the reduction in early voting on other elections."

Why is there less harm here than in other elections? It's a mid-term, rather than a presidential election. The reduction of early voting days hurts less (if at all) when nobody is voting, and during these mid-term elections, far fewer voters actually show up to the polls.

There's no urgent need for an injunction here, but should this matter somehow not be resolved by 2016, the story might be different.

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