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4th Cir. Blocks 2 N.C. Voting Changes, Ignores SCOTUS' Purcell?

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By William Peacock, Esq. on October 01, 2014 4:59 PM

One day after the U.S. Supreme Court neutered Section 5 of the Voting Rights Act -- i.e., one day after the preclearance requirement for changes to voting laws in jurisdictions with a history of voter suppression efforts was nullified by that decision -- North Carolina passed House Bill 589.

The bill made a number of significant changes to the way North Carolina voter registration and elections are handled, including eliminating same-day voter registration, the counting of ballots cast in the wrong precinct, the reduction of early voting days, and a voter ID requirement, among others. Multiple lawsuits challenging the bill came just as quickly, but while there seems to be significant questions about the legality of the bill, which rolls back a number of voting procedures originally instituted to increase minority voting, the district court declined to block the changes for this November's election.

Today, after an expedited appeal, the Fourth Circuit released its decision in the case, affirming in part, and reversing in part, the district court's denial of an injunction.

Same-Day Voter Registration Restored; Out-of-Precinct Votes Count

Holding that "the district court got the law plainly wrong in several crucial aspects," the Fourth Circuit reversed the lower court's denial of a preliminary injunction blocking two major parts of North Carolina's voting processes overhaul -- same-day voter registration and recognition of out-of-precinct ballots.

Using Section 2's "totality of the circumstances" test, the majority first recounted North Carolina's race to pass legislation immediately after the U.S. Supreme Court neutered Section 5 of the Voting Rights Act in Shelby County v. Holder.

The majority also seemed especially miffed that the district court refused to block the state's efforts to eliminate same-day registration and counting of out-of-precinct ballots, even though there was clear evidence that the changes would disproportionately affect African American voters. In two recent elections, data cited by the majority showed that black voters were nearly twice as likely to use same-day registration. Other data showed that poor black voters were far more likely to move to a new precinct, and to lack a car, than white voters.

"[W]e 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," Judge James Wynn wrote.

Every Other Change Sticks (for Now)

It wasn't all good news for challengers to House Bill 589. Judge Wynn's opinion affirmed the denial of 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 preregistration of 16- and 17-year-olds who will not be 18 years old by the next general election; and

(v) The soft roll-out of voter identification requirements to go into effect in 2016.

Wynn noted that while the plaintiffs had failed to meet the heavy burden required for a preliminary injunction, they very well could succeed on the merits later.

Dissent: What About Purcell?

Judge Diana Gribbon Motz, in dissent, argued that while she personally may not have come to the same conclusions as the district court on the basis of the record, that court's factual findings "are not clearly erroneous."

More importantly, she also pointed to Purcell v. Gonzalez, a Supreme Court decision holding that courts shouldn't change election rules at the last minute, as it risks "voter confusion and consequent incentive to remain away from the polls." Purcell is at issue in a Seventh Circuit case out of Wisconsin (Voter ID) and Ohio (pullback on early voting, among other changes).

Bound for SCOTUS?

This seems like a sure shot for an immediate appeal to the Supreme Court on the Purcell issue, especially since SCOTUS blocked court-ordered changes in Ohio's voting scheme earlier this week. The Seventh Circuit/Wisconsin case is likely headed for SCOTUS intervention as well.

But aside from that likely emergency appeal of the injunction restoring same-day registration and out-of-precinct voting, the Supreme Court might also be called upon to decide whether retrogression analysis, the kind previously used in the now-neutered VRA Section 5 cases, has any place in Section 2's "totality of the circumstances" test.

If so, as Prof. Rick Hasen points out, this sets up the odd circumstance where a cutback in a voting practice can violate Section 2 while a state with less-generous voting practices can get away without the legal headaches. Ohio has raised this point repeatedly in the Sixth Circuit case that is running parallel to this Fourth Circuit challenge -- even with its cutbacks (including early voting), it still beats most other states out there.

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