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Elections — N.C. Voter Law Shows ‘Discriminatory Intent’

Deborah Elkins//August 3, 2016

Elections — N.C. Voter Law Shows ‘Discriminatory Intent’

Deborah Elkins//August 3, 2016

N.C. State Conference of the NAACP v. McCrory (Lawyers Weekly No. 001-133-16, 83 pp.) (Motz, J.) No. 16-1468(L), July 29, 2016; USDC at Greensboro, N.C. (Schroeder, J.) 4th Cir.

Holding: 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.


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 those 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. These 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 these 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 reveals 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.


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.


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.


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.

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