N.C. Voter Law Shows ‘Discriminatory Intent’

A North Carolina district court uphold­ing the challenged portions of North Car­olina’s Voter Identification law ignored critical facts bearing on discriminatory intent, including the inextricable link be­tween race and politics in North Carolina, and the 4th Circuit reverses the decision and remands with instructions to enjoin the challenged provisions of SL 2013-381 regarding photo ID, early voting, same-day registration, out-of-precinct voting and preregistration.

Opinion

Motz, J.: writing for the court except as to Part V.B.: Voting in many areas of North Carolina is racially polarized, i.e., the race of voters correlates with the se­lection of a certain candidate or candi­dates. In Thornburg v. Gingles, 478 U.S. 30 (1986), and other Voting Rights Act cases, the Supreme Court has explained that polarization renders minority vot­ers uniquely vulnerable to the inevitable tendency of elected officials to entrench themselves by targeting groups unlikely to vote for them.

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 in the state. African Americans were poised to act as a major electoral force. But on the date after the decision in Shelby County v. Holder, 133 S.Ct. 2612 (2013), eliminated preclearance obligations, a leader of the party that newly dominated the North Carolina legislature (and that rarely enjoyed African American support) announced an intention to enact what he characterized as an “omnibus” elec­tion law. The legislature requested data on the use, by race, of a number of vot­ing practices. Upon receipt of that data, the General Assembly enacted legislation that restricted voting and registration in five different ways, all of which dispropor­tionately affected African Americans.

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. The asserted jus­tifications cannot and do not conceal the state’s true motivation.

Discriminatory intent

Faced with this record, we can only conclude the North Carolina General Assembly enacted the challenged provi­sions of the law with discriminatory in­tent. We hold the challenged provisions of SL 2013-381 were enacted with racial­ly discriminatory intent in violation of the Equal Protection Clause of the 14th Amendment and § 2 of the Voting Rights Act. We reverse the district court judg­ment and remand with instructions to issue an injunction.

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. A state legislature acting on such a motivation engaged in intentional race discrimination in violation of the 14th Amendment and the Voting Rights Act.

Here, the legislature’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. No minutes or meetings about SL 2013- 381 exist. We do find worthy of discussion the General Assembly’s requests for and use of race data in connection with SL 2013-381. This data revealed that Afri­can Americans disproportionately lacked DMV-issued ID. The data also revealed that African Americans did not dispro­portionately use absentee voting; whites did. SL 2013-381 drastically restricted all of these other forms of access to the franchise, but exempted absentee voting from the photo ID requirement. Relying on this racial data, the legislature enact­ed legislation restricting all – and only – practices disproportionately used by Afri­can Americans.

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 cu­mulatively and unmistakably reveal that the General Assembly used SL 2013-381 to entrench itself.

The record 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 must conclude that race constituted a but-for cause of SL 2013- 381, in violation of the constitutional and statutory provisions on intentional dis­crimination.

Opinion

Wynn, J., with whom Floyd, J., joins, writing for the court as to Part V.B.: The fact that the General Assembly later amended one of the challenged provisions does not change our conclusion that in­validation of each provision is the appro­priate remedy in this case. Our dissent­ing colleague contends that even though we all agree that the General Assembly unconstitutionally enacted the photo ID requirement with racially discriminatory intent, and the remedy for an unconsti­tutional law must completely cure the harm wrought by the prior law, we should remand for the district court to consider whether the reasonable impediment ex­ception has rendered our injunction of that provision unnecessary.

Even if the state were able to demon­strate that the amendment lessens the discriminatory effect of the photo ID re­quirement, it would not relieve us of our obligation to grant a complete remedy in this case. To fully cure the harm imposed by the impermissible enactment of SL 2013-381, we permanently enjoin the im­permissible enactment of the challenged provisions, including the photo ID provi­sion.

Opinion

Motz, J., writing for the court: As to the other requested relief, we decline to im­pose any of the discretionary additional relief available under § 3 of the Voting Rights Act, including imposing poll ob­servers during elections and subjecting North Carolina to ongoing preclearance requirements.

Reversed and remanded.

Dissent

Motz, J., dissenting as to Part V.B.: North Carolina recently held two elec­tions in which the photo ID requirement, as amended, was in effect. The record, however, contains no evidence as to how the amended voter ID requirement af­fected voting in North Carolina. If inter­im events have “cured the condition,” and a defendant carries its “heavy burden” of demonstrating that the wrong will not be repeated, a court will properly deny an injunction of the abandoned practice. On this record, I believe we cannot as­sess whether, or to what extent, the rea­sonable impediment exception cures the unconstitutional 2013 photo ID require­ment.

I would only temporarily enjoin the photo ID requirement and remand the case to the district court to determine if, in practice, the exception fully remedies the discriminatory requirement or if a permanent injunction is necessary.

N.C. State Conference of the NAACP v. McCrory (Motz) No. 16-1468(L), July 29, 2016; USDC at Greensboro, N.C. (Schro­eder) Anna M. Baldwin, USDOJ, for ap­pellants; Thomas A. Farr for appellees. VLW 016-2-127, 83 pp.