By: Carson Smith
Today, in League of Women Voters of North Carolina v. North Carolina, the Fourth Circuit overturned the district court by partially granting a preliminary injunction as to certain provisions of North Carolina’s controversial voting law. In reaching its decision, the Court followed the lead of the Sixth Circuit in applying Section Two of the Voting Rights Act to state voting restrictions.
The case centered on NC House Bill 589, which greatly restricts voting opportunities for North Carolina citizens. The bill, passed in August of 2013, added provisions (1) reducing early-voting days; (2) eliminating same-day registration; (3) prohibiting the counting of out-of-precinct ballots; (4) expanding the potential number of poll observers and voter challenges; (5) eliminating the necessity of keeping polls open an additional hour in “extraordinary circumstances”; and (6) eliminating pre-registration of sixteen and seventeen year olds. On the day of its passage, the plaintiffs filed suit in the Middle District of North Carolina alleging that the bill provisions violate the Voting Rights Act and the U.S. Constitution. Soon thereafter, the plaintiffs moved for preliminary injunction. The district court determined that the plaintiffs failed to prove every preliminary injunction element as to the six challenged provisions and thus denied the motion.
In partially overturning the ruling, the Fourth Circuit held that the district court abused its discretion and misapplied the Voting Rights Act to the facts of the case. The Court granted the preliminary injunction as to (1) the elimination of same-day registration and (2) the prohibition on counting out-of-precinct ballots. Conversely, the Court affirmed the denial of preliminary injunction as to the other four provisions, including the reduction of early-voting days. The Court was quick to note that the affirmation was significantly predicated on the degree of hardship North Carolina would undergo if required to alter the voting infrastructure less than five weeks before statewide elections.
In granting the preliminary injunction for same day registration and counting out-of-precinct ballots, the Court applied Section Two of the Voting Rights Act. Section Two “forbids any ‘standard, practice or procedure’ that ‘results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color.’” In applying this Section, courts look to the totality of circumstances to determine whether voting is “equally open to participation by citizens of protected races.” A plaintiff need not show discriminatory intent, discriminatory impact or burden alone is enough for a violation to exist.
Unlike the district court, the Fourth Circuit determined that the baseline for assessing discriminatory burden is the “preexisting voting standard, practice, or procedure.” Additionally, the restrictions must be evaluated as a whole, not separately, to determine whether a burden results. Finally, where a burden is found, it “must in part be caused by or linked to ‘social and historical conditions’ that have or currently produce discrimination against members of the protected class.”
In its analysis, the Court ruled that “[t]here can be no doubt that certain challenged measures in House Bill 589 disproportionately impact minority voters.” The Court cited the high percentage of African Americans who use same day registration versus the percentage of whites who use it. The Court also held that this difference is due to “social and historical conditions,” including “education, income, access to transportation, and residential stability.” Finally, the Court ruled that these restrictions cause irreparable injury to the plaintiffs and the hardship North Carolina will face in implementing the changes is not enough to tip the balance in its favor.
The Fourth Circuit’s decision in League of Women Voters of North Carolina v. North Carolina will likely have far reaching implications. Like the Sixth Circuit, the Fourth Circuit has made it clear that it will use Section Two of the Voting Rights Act to strike down racially burdensome voting restrictions. Prior to last year, Section Five of the Voting Rights Act was utilized primarily for this purpose; however, the Supreme Court ruled that section unconstitutional in Shelby County v. Holder. Also, as the dissent points out, a preliminary injunction is an extraordinary remedy, especially in the case of a “duly enacted statute.” Given the Court’s interpretation of Section Two and its decision to overturn the lower court, even in the face of the high “abuse of discretion” standard, it is unlikely that the remaining provisions of the bill will survive at trial.