Wake Forest Law Review

By Kenya Parrish & Sophia Pappalardo

The Honorable James Dickson Phillips Jr. was born in Laurinburg, North Carolina on September 23, 1922.[1] Judge Phillips graduated as the salutatorian of his high school in 1939 and went on to attend Davidson College.[2] At Davidson, Judge Phillips was the captain of the baseball team and achieved Phi Beta Kappa academic honors.[3] In addition to playing baseball, Judge Phillips was also a member of the Army ROTC program at Davidson, and after graduating in 1943, Judge Phillips enlisted in the United States Army as a 2nd Lieutenant.[4] Judge Phillips then fought and was injured in World War II and was later honored with the Bronze Star and the Purple Heart for his military service.[5]

In 1945, Judge Phillips rode with his friend as he traveled to begin his studies at the University of North Carolina School of Law, and after meeting with the dean, Phillips was admitted on the spot to study at the law school as well.[6] Just as he did at Davidson, Judge Phillips excelled academically in law school, serving as Associate Editor of the North Carolina Law Review and earning Order of the Coif academic honors.[7] Judge Phillips’s first job after graduating from law school was serving as the assistant director of the UNC Institute of Government.[8] In 1949, Judge Phillips then returned to his hometown of Laurinburg to work in private practice with his longtime friend and law school classmate, Terry Sanford, who later served as Governor of North Carolina.[9]

After working as a trial lawyer, Judge Phillips returned to the UNC School of Law in 1959 as a visiting professor in civil procedure and related subjects.[10] Judge Phillips later became an associate professor, and in 1964, he became a tenured full professor and the eighth Dean of the UNC School of Law.[11] During his ten-year term as dean, the law school inaugurated the Holderness Moot Court program, sponsored of the school’s first clinical classes, carried out the largest fundraising effort in the school’s history, and had a North Carolina bar passage rate of 95.8% among its graduates.[12]

Judge Phillips was appointed to the U.S. Court of Appeals for the Fourth Circuit by President Carter on July 20, 1978.[13] He assumed senior status in 1994.  Judge J. Harvie Wilkinson, III described Judge Phillips as a “heroic man of courage, both on the military battlefield and in a courtroom.  He had a great feel for humanity, and a strong combination of intellect, integrity and humility.  He exemplified what is good about being a judge.”[14]

Many of the cases Judge Phillips addressed involved contentious topics that are still relevant today: minority voting rights, gerrymandering, and sex discrimination.[15] Notably, he wrote the opinion for Gingles v. Edminsten, where the court held that a North Carolina redistricting plan violated Section 2 of the Voting Rights Act.[16] The decision was appealed directly to the U.S. Supreme Court, which affirmed the judgment for all but one of the House Districts.[17]

Ten years later, Judge Phillips dissented from the Fourth Circuit panel’s majority decision in United States v. Virginia, a sex discrimination case.[18] The majority held that a state-sponsored all-male military program at the Virginia Military Institute did not violate the Fourteenth Amendment’s Equal Protection Clause as long as the state also supported an all-female leadership program at the all-female Mary Baldwin College.[19] Judge Phillips wrote, “I would . . . declare the VMI men-only policy still in violation of the Equal Protection Clause, and order that the violation be ended . . . .”[20] A year later, and consistent with Judge Phillips’s dissent, the U.S. Supreme Court overturned the Fourth Circuit’s decision.[21]

Judge Phillips sat on the Fourth Circuit until 1999.[22] After twenty-one years on the bench, he was succeeded by Judge James A. Wynn, who described Judge Phillips as “one who exuded grace and gentility coupled with great scholarship.  He was a role model.”[23] Others described him as a “colorful storyteller with a quick wit and sly sense of humor.”[24] At the age of ninety-four, the Honorable James Dickson Phillips Jr. passed away at his home on August 27, 2017.[25]

[1] John Charles Boger, J. Dickson Phillips Jr.: Preparation for Judicial Excellence, 92 N.C. L. Rev. 1789, 1789 (2014); Anne Blythe, He Earned a Purple Heart, Led UNC Law and Shaped Civil Rights as a Judge, News & Observer (Aug. 30, 2017, 5:59 PM), https://www.newsobserver.com/news/local/article170309727.html.

[2]  Boger, supra note 1 at 1790.

[3] Id.

[4] Id.

[5] Id. at 1791.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id. at 1792.

[11] Id.; Martin H. Brinkley, Carolina Law Community Remembers Dean and Judge James Dickson Phillips Jr. ’48 (1922-2017), U.N.C. Sch. L.(Aug. 29, 2017), http://www.law.unc.edu/news/2017/08/29/remembering-dean-james-dickson-phillips-jr-48/.

[12] Boger, supra note 1 at 1793.

[13] Judge James Dickson Phillips, Jr., U. N.C. Sch. L., http://phillips.law.unc.edu/judicial-service/(last visited Oct. 1, 2018).

[14] Fourth Circuit Court of Appeals Remembers Judge J. Dickson Phillips, Jr., U.S. Ct. of Appeals for the Fourth Cir. (August 31, 2017), https://perma.cc/LN44-Z97N.

[15] Blythe, supra note 1.

[16] Gingles v. Edminsten, 590 F. Supp. 345, 350 (E.D.N.C. 1984).

[17] See Thornburg v. Gingles, 478 U.S. 30, 80 (1986).

[18] U.S. v. Virginia, 44 F.3d 1229, 1242–51 (4th Cir. 1995).

[19] Id. at 1232.

[20] Id. at 1243.

[21] U.S. v. Virginia, 518 U.S. 515, 515–18 (1996).

[22] Blythe, supra note 1.

[23] Id.

[24] Id.

[25] Id.

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.