N.C. State Conference of the NAACP v. McCrory

182 F.Supp.3d 320

NORTH CAROLINA STATE CONFERENCE OF THE NAACP; Emmanuel Baptist Church; Covenant Presbyterian Church; Barbee's Chapel Missionary Baptist Church, Inc.; Rosanell Eaton; Armenta Eaton; Carolyn Coleman; Jocelyn Ferguson-Kelly; Faith Jackson; Mary Perry; and Maria Teresa Unger Palmer, Plaintiffs,

v.Patrick Lloyd MCCRORY, in his Official Capacity as Governor of North Carolina; Kim Westbrook Strach, in her Official Capacity as Executive Director of The North Carolina State Board of Elections; Rhonda K. Amoroso, in her Official Capacity as Secretary of The North Carolina State Board of Elections; Joshua D. Malcolm, in his Official Capacity as a Member of The North Carolina State Board of Elections; James Baker, in his Official Capacity as a Member of The North Carolina State Board of Elections; and Maja Kricker, in her Official Capacity as a Member of The North Carolina State Board of Elections, Defendants.

League of Women Voters of North Carolina; A. Philip Randolph Institute; Unifour Onestop Collaboarative; Common Cause North Carolina; Goldie Wells; Kay Brandon; Octavia Rainey; Sara Stohler; and Hugh Stohler, Plaintiffs,

and

Louis M. Duke; Asgod Barrantes; Josue E. Berduo; Charles M. Gray ; Nancy J. Lund; Brian M. Miller; Becky Hurley Mock; Mary-Wren Ritchie; Lynne M. Walter; and Ebony N. West, Plaintiff-intervenors,

v.The State of North Carolina; Joshua B. Howard, in his official capacity as a member of the State Board of Elections; Rhonda K. Amoroso, in her official capacity as a member of the State Board of Elections; Joshua D. Malcolm, in his official capacity as a member of the State Board of Elections; Paul J. Foley, in his official capacity as a member of the State Board of Elections; Maja Kricker, in her official capacity as a member of the State Board of Elections; and Patrick L. McCrory, in his official capacity as the Governor of the State of North Carolina, Defendants.

United States of America, Plaintiff,

v.The State of North Carolina; The North Carolina State Board of Elections; and Kim W. Strach, in her Official Capacity as Executive Director of the North Carolina State Board of Elections, Defendants.

1:13CV658

1:13CV660

1:13CV861

United States District Court, M.D. North Carolina.

Signed April 25, 2016

Bridget K. O'Connor, Christopher J. Maner, Daniel T. Donovan, Jodi K. Wu, Kenneth Winn Allen, Michael A. Glick, Ronald K. Anguas, Jr., Susan Marie Davies, Thomas D. Yannucci, Kirkland & Ellis, LLP, Caitlin Swain-McSurely, Denise D. Lieberman, Donita Judge, Jadine C. Johnson, Jasmyn G. Richardson, Penda Denise Hair, Advancement Project, Washington, DC, Irving Joyner, N.C. Central University School of Law, Cary, NC, Jennifer R. Basch, John J. Song, Madelyn A. Morris, Kirkland & Ellis, LLP, New York, NY, Adam Stein, Tin Fulton Walker & Owen, PLLC, Chapel Hill, NC, for Plaintiffs.

Karl S. Bowers, Jr., Bowers Law Office LLC, Columbia, SC, Alexander McClure Peters, Katherine A. Murphy, N.C. Department of Justice, Phillip John Strach, Thomas A. Farr, Michael Douglas McKnight, Ogletree Deakins Nash Smoak & Stewart, P.C., Raleigh, NC, Amy M. Pocklington, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Richmond, VA, Elizabeth R. Dangel, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Charlotte, NC, for Defendants.

MEMORANDUM OPINION AND ORDER

Thomas D. Schroeder, United States District Judge

TABLE OF CONTENTS

I. FINDINGS OF FACT ... 332

A. North Carolina Voting Laws ...332

1. Voter ID ... 332

2. Early Voting ...332

3. Out-of-Precinct Provisional Voting ...334

4. SDR ... 336

5. Pre-registration ... 336

B. Post-2011 Legislation ... 337

1. Introduction of HB 589 ... 337

2. Revision of HB 589 ... 339

3. Enactment of HB 836 ... 344

C. Procedural History ... 348

D. Evidence of Voter Experience Under Current Law ... 351

1. Voter ID ... 351

a. Voter Education about the Voter-ID Requirement Prior to the Reasonable Impediment Exception ... 351

b. Voter Education After Enactment of the Reasonable Impediment Exception ... 353

c. Voters' Experience in Acquiring Qualifying ID ... 358d. Evidence of North Carolina Voters Without ID ... 364

e. Availability of the Reasonable Impediment Exception ... 369

2. Change in the Early-Voting Schedule ... 382

3. Elimination of SDR ... 393

4. Elimination of OOP Provisional Voting ... 404

5. Elimination of Pre-Registration ... 407

6. Other Challenged Provisions ... 409

7. 2014 Data ... 411

E. Testimony of Other Experts ... 412

II. CONCLUSIONS OF LAW ... 412

A. Section 2 of the VRA ... 412

1. The Law of Vote Denial and Abridgement Claims. ... 412

2. The Totality of the Circumstances & Gingles ... 422

a. The Success of the Prior Practices in Fostering Minority Political Participation ... 422

b. History of Official Discrimination ... 425

c. Racially-Polarized Voting ... 429

d. Enhancing the Opportunity for Discrimination ... 429

e. Candidate Slating Process ... 430

f. Continuing Effects of Discrimination Hindering Participation ... 430

g. Racial Appeals in Campaigning ... 438

h. Minority Electoral Success ... 438

i. Responsiveness of Elected Officials ... 439

j. Tenuousness of the State's Justifications ... 440

i. Voter ID ... 440

ii. Early Voting ... 445

iii. SDR ... 445

iv. OOP Voting ... 447

v. Pre-Registration ... 463

3. Equality of Opportunity and Social and Historical Conditions ... 465

a. Voter ID ... 466

b. Early Voting ... 472

c. SDR ... 473

d. OOP Voting ... 479

e. Pre-registration ... 483

f. Cumulative Effect ... 484

4. Discriminatory Result: Conclusion ... 486

5. Discriminatory Intent ... 488

6. Additional Problems with the § 2 Results Claim ... 503

B. "Traditional" Fourteenth and Fifteenth Amendment Claims ... 509

C. Anderson–Burdick Claim ... 509

1. Voter ID ... 511

2. Early Voting ... 513

3. SDR ... 514

4. OOP ... 516

5. Pre-registration ... 518

6. CBOE Discretion ... 520

7. Poll Observers and Challengers ... 520

8. Cumulative Effect of Provisions ... 521

D. Twenty-Sixth Amendment Claim ... 521

E. Remedy ... 525

III. CONCLUSION ... 526

In these related cases, Plaintiffs seek to permanently enjoin Defendants from implementing various provisions of North Carolina Session Law 2013–381 ("SL 2013–381"), an omnibus election-reform law, as amended by Session Law 2015–103 ("SL 2015–103").¹

Plaintiffs are the United States of America (the "United States") in case 1:13CV861, the North Carolina State Conference of the NAACP and several organizations and individual plaintiffs (the "NAACP Plaintiffs") in case 1:13CV658, and the League of Women Voters of North Carolina along with several organizations and individuals (the "League Plaintiffs") in case 1:13CV660. Additionally, the court allowed a group of "young voters" and others (the "Intervenor Plaintiffs") to intervene in case 1:13CV660. (Doc. 62 in case 1:13CV660.) Considered together, Plaintiffs raise claims under the Fourteenth, Fifteenth, and Twenty-Sixth Amendments to the United States Constitution as well as § 2 of the Voting Rights Act of 1965 ("VRA"), 52 U.S.C. § 10301 (formerly 42 U.S.C. § 1973 ). (Doc. 365 in case 1:13CV861; Doc. 384 in case 1:13CV658; Docs. 1 & 63 in case 1:13CV660.) The United States also moves for the appointment of federal observers to monitor future elections in North Carolina pursuant to § 3(a) of the VRA, 52 U.S.C. § 10302(a) (formerly 42 U.S.C. § 1973a(a) ). (Doc. 365 at 33.)² Defendants are the State of North Carolina, Governor Patrick L. McCrory, the State Board of Elections ("SBOE"), and several State officials acting in their official capacities.

The record is extensive. The court held a four-day evidentiary hearing and argument beginning July 7, 2014, on Plaintiffs' motion for preliminary injunction, which evidence is now part of the trial record. Fed. R. Civ. P. 65(a)(2). Fifteen days of trial on the merits were conducted from July 13 through 31, 2015. An additional six days of trial on the voter photo identification ("ID") provisions of the law were conducted from January 25 through February 1, 2016. The court has considered testimony of twenty-one expert witnesses and 112 fact witnesses. The record consists of more than 11,000 pages from the preliminary injunction phase, in excess of 12,000 pages from the July trial, and over 2,500 additional pages from the January trial.³ As can be seen from the length of this memorandum opinion, merely trying to concisely state the court's findings has presented a monumental challenge.

This case presents important questions as it tests North Carolina's newly-enacted voter photo-ID requirement and the State's modification or elimination of certain voting procedures not contemplated by the State a little more than a decade ago: seventeen days of in-person early voting before Election Day, same-day registration, voting provisionally on Election Day in an unassigned precinct, and pre-registering to vote as early as age sixteen. Under both the Elections Clause of, and the Tenth Amendment to, the United States Constitution, such decisions are traditionally reserved to the States, but they are subject to other constitutional and congressional limitations. The principal question in these cases is whether the North Carolina General Assembly imposed a voter-ID requirement and altered these relatively recently-developed voting procedures—deemed "conveniences" and "fail-safes" by some of Plaintiffs' own experts—based on race or, even if not, in a manner that presents an unlawful discriminatory burden on voters.

After careful consideration of the complete record and pursuant to Rule 52(a) of the Federal Rules of Civil Procedure, the court enters the following findings of fact—based upon an evaluation of the evidence, including the credibility of witnesses, and the inferences that the court has found reasonable to be drawn therefrom—and conclusions of law. To the extent any factual statement is contained in the conclusions of law, it is deemed a finding of fact as well.

I. FINDINGS OF FACT

A. North Carolina Voting Laws

The provisions of North Carolina SL 2013–381 at issue establish a voter-ID requirement and repeal certain voting and...