N.C. State Conference, of the Naacp v. McCrory, 1:13CV658

156 F.Supp.3d 683

North Carolina State Conference, of the NAACP, Emmanuel Baptist Church, Bethel A. 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, Paul J. Foley, 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; Josue E. Berduo; Nancy J. Lund; Brian M. Miller; Becky Hurley Mock; 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 January 15, 2016

Bridget K. O'Connor, Christopher J. Maner, Daniel T. Donovan, Jodi K. Wu, Kenneth Winn Allen, Kimberly D. Rancour, Michael A. Glick, Ronald K. Anguas, Jr., Susan Marie Davies, Thomas D. Yannucci, Uzoma N. Nkwonta, 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, District Judge.

In these consolidated cases, Plaintiff North Carolina State Conference of the NAACP and certain other organizations and individual plaintiffs (“NAACP Plaintiffs”) in case 1:13CV658 move to preliminarily enjoin Defendants from implementing North Carolina's voter photo-identification (“ID”) requirement in the March 2016 primary election. (Doc. 390.)¹ No other Plaintiff, including the United States of America, has joined this motion. Trial is set to begin January 25, 2016. Defendants oppose the motion, pointing out that North Carolina's current law permits those without a qualifying photo ID to vote under a broad “reasonable impediment” exception identical to that approved by a three-judge court in South Carolina v. United States , 898 F.Supp.2d 30 (D.D.C.2012). For the reasons set forth below, the motion will be denied.

I. BACKGROUND

A. Procedural History

On August 12, 2013, North Carolina enacted North Carolina Session Law 2013-381 (“SL 2013-381”), which made a number of changes to North Carolina's voting laws. (Pl. Ex. 121.) All changes were to take effect immediately except for the voter photo-ID requirement, which would not be effective until January 1, 2016. That same day, NAACP Plaintiffs joined several groups in suing to overturn several provisions: the photo-ID requirement, elimination of same-day registration (“SDR”), reduction of seven days of early voting, prohibition on counting out-of-precinct (“OOP”) provisional ballots, elimination of mandatory pre-registration of sixteen-year-olds, and expansion of poll observers and ballot challenges.² (Docs. 1, 52.) NAACP Plaintiffs allege that these provisions discriminate against African Americans and Hispanics in violation of the Fourteenth and Fifteenth Amendments to the United States Constitution, as well as § 2 of the Voting Rights Act of 1965 (“VRA”), 42 U.S.C. § 1973. At the parties' request, this case was consolidated with related claims made in the captioned cases for discovery and later for trial. (Doc. 267.)

On May 19, 2014, all Plaintiffs moved to preliminarily enjoin the challenged provisions, and the United States sought the appointment of federal observers. (Docs. 108, 110.) As to the photo-ID requirement, however, NAACP Plaintiffs (and those challenging the photo-ID requirement) moved to enjoin only its “soft rollout” in which voters would be advised that the photo-ID requirement would apply starting in 2016.

On August 8, 2014, after considering the testimony of multiple fact and expert witnesses and an extensive record of over 11,000 pages of exhibits and materials, this court issued a 125-page opinion denying the motions for preliminary injunction but refusing to dismiss any claims. 997 F.Supp.2d 322 (M.D.N.C.2014). Certain Plaintiffs appealed, and on October 1, 2014, a divided panel of the Fourth Circuit issued an opinion affirming in part, reversing in part, and remanding with instructions. League of Women Voters of N.C. v. North Carolina , 769 F.3d 224 (4th Cir.2014). The majority found that Plaintiffs had demonstrated a likelihood of success on the claim that the repeal of SDR and OOP voting violated § 2 of the VRA, but left the denial of an injunction as to the remaining provisions in place. Id. at 230. Due to a stay by the Supreme Court, SDR and OOP remained in place for the 2014 midterm general election before the stay was lifted.³

Trial was set for July 13, 2015. On June 18, 2015, the North Carolina General Assembly passed House Bill 836, and on June 22, 2015, the Governor signed it into law as North Carolina Session Law 2015-103 (“SL 2015-103”). The law relaxed the photo-ID requirement created by SL 2013-381 by providing an additional exception that permits individuals to vote without a photo ID so long as they sign a reasonable impediment affidavit. The court immediately held a status conference to address how this change in law might affect the pending cases. Plaintiffs desired additional time to assess the new law but urged the court not to delay trial on the remaining claims; Defendants argued that the amendment rendered the challenge to the photo-ID requirement moot. The court proposed continuing the trial to September 2015 rather than bifurcating the photo-ID claim but, at Plaintiffs' urging, carved out the challenge to the photo-ID law (except as it related to Plaintiffs' intent claims) from the July 13 trial setting and agreed to proceed to trial on the balance of the consolidated claims. (Doc. 299.) Thereafter, Defendants moved to dismiss the photo-ID challenge as moot (Doc. 316); the court denied the motion, setting trial for January 25, 2016.

Beginning July 13, 2015, this court held a trial on the merits of all claims except those challenging the merits of the photo-ID provisions.⁴ Over the course of three weeks, the court took the testimony of 114 witnesses. Following trial, the parties submitted almost 300 pages of proposed findings of fact and conclusions of law. (Docs. 364, 365.) Including the evidence from the preliminary injunction hearing, which the parties have stipulated to be considered part of the trial record pursuant to Federal Rule of Civil Procedure 65(a)(2), the record consists of over 23,000 pages of exhibits, reports, and deposition transcripts.

On November 24, 2015, five months after the photo-ID law was modified by the reasonable impediment exception and two months before trial, NAACP Plaintiffs filed the present motion to preliminarily enjoin the implementation of the photo-ID provision of SL 2013-381, as amended by the reasonable impediment provision, for the March 15, 2016 primary. (Doc. 390.) The United States has not joined this motion. Briefing was completed on December 21, 2015. (Doc. 395.)

NAACP Plaintiffs limit their present motion to their claims of intentional discrimination and the alleged unconstitutional burden the photo-ID requirement with the reasonable impediment exception will have on the right to vote under the Fourteenth Amendment pursuant to the Anderson -Burdick line of cases. See Anderson v. Celebrezze , 460 U.S. 780, 788–89, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983) ; Burdick v. Takushi , 504 U.S. 428, 433–34, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992). The motion is not based on their “results” claim under § 2 of the VRA. (Doc. 391 at 6-7.) NAACP Plaintiffs make three principal contentions in support of their motion. First, they argue that the State has not sufficiently educated voters and election officials on the reasonable impediment exception. Second, they argue that the reasonable impediment provision has not been sufficiently defined by Defendants to prevent it from being applied in a...