Wake Forest Law Review
15Nov

Changing the Language, Not the Law: North Carolina’s Citizens-Only Amendment

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By Emily Gordon

When North Carolina residents voted in the 2024 election, they might have been surprised to see a ballot measure regarding a proposed amendment to the state constitution.[1] Prior to the election, the North Carolina State Constitution allowed “every person born in the United States and  every person who has been naturalized” to vote in an election.[2] The proposed initiative asked if voters would be “for” or “against” removing the naturalization provision, modifying the voter qualification to read that “only a citizen of the United States who is 18 years of age and otherwise possessing the qualifications for voting shall be entitled to vote in any election in this state.”[3] 

At first glance, the proposed amendment was a mere restatement of what the law already declared.[4] And that’s just it–while the amendment proposed changing the language of North Carolina’s constitution, the law would remain unchanged: it is illegal for a non-citizen to vote in either a federal or statewide election.[5] 

North Carolina was one of a handful of states that voted on an amendment targeting noncitizen voting.[6] Idaho, Iowa, Kentucky, Missouri, Oklahoma, South Carolina, and Wisconsin also asked voters to consider amending their state constitutions to explicitly bar non-citizens from voting in a state or federal election.[7] 

Background

On June 27, 2024, the General Assembly of North Carolina passed House Bill 1074, allowing the proposed amendment to appear on the ballot in the 2024 federal election.[8] The measure was largely championed by the NCGOP, which controlled the state legislature.[9] NC House Rules Chairman Destin Hall said that “[t]ightening our election laws so that only U.S. citizens are voting in this country ensures that those making decisions about our country’s future have a vested interest in its well-being.”[10] The amendment was likely proposed in response to the NCGOP’s growing concerns over voter fraud by undocumented immigrants in both the 2016 and 2020 election.[11] Trump notoriously alleged that thousands of non-citizens had voted in the 2020 election, particularly in the state of Arizona, and claimed that such illegal voting led to his unsuccessful reelection.[12]

Critics of the amendment, led by Democrats, were strongly opposed to the proposed new language.[13] Reiterating that it is already illegal for noncitizens to vote in federal and state elections, opponents found the amendment unnecessary.[14] ACLU North Carolina further noted that 44% of immigrants in North Carolina are naturalized U.S. citizens, believing the amendment was spurred by “fearmongering” and “hateful rhetoric” towards naturalized immigrants in North Carolina.[15] Moreover, the NC ACLU viewed the amendment as a tactic to discourage naturalized immigrants from exercising their fundamental right to vote.[16] Similarly, Democracy NC believed the proposed amendment was part of a Republican agenda to create distrust “about immigrants and voting to sow doubts” about the upcoming election, “opening the door to confusion” amongst naturalized citizens.[17] 

Opponents of the amendment also turned to various studies refuting Republican claims of noncitizen voting in prior elections.[18] Analyzing the Heritage Foundation’s database of voter fraud cases brought by prosecutors, the Washington Post found only 85 cases of noncitizen voting allegations from 2002 to 2023.[19] Another study by the Brennan Center for Justice after the 2016 election found only 30 cases of suspected noncitizen voting in the election, out of 23.5 million votes from 42 different jurisdictions.[20] In North Carolina, a 2016 election audit found that suspected noncitizen voters, based on data from the state’s Division of Motor Vehicles, were citizens 98% of the time.[21] ACLU North Carolina additionally commented that “[b]ipartisan election officials confirmed that the 2020 election results were credible, accurate, and secure.”[22]

Results

            North Carolinians overwhelmingly voted in favor of the amendment, with 77.6% of votes “for” the amendment and 22.4% “against,” as of the time of writing.[23]  Of the 100 counties in North Carolina, only two had a majority of votes against the amendment: Durham and Orange County.[24] Notably, those whose who voted against the amendment in these counties only won by a slim majority: 53% and 52%, respectively.[25] In all other counties, proponents of the amendment won the vote by a majority of at least 66%.[26] Camden County and Bladen County had the highest percentage of  favorable votes as 93% of their constituents voted in favor of the amendment.[27] 

            All 8 states with similar constitutional amendments on their ballots adopted the language, making it explicitly illegal for noncitizens to vote in their jurisdictions. [28]

Implications

With the amendment taking effect, opponents will need to work harder to fight against the potential spread of misinformation about naturalized citizens.[29] Without explicit language allowing naturalized citizens to vote, it is possible that the amendment could be viewed as a substantive change to NC’s voting laws.[30] Likewise, the amendment may have confused other voters into believing that non-citizens could legally vote in the election prior to the amendment.[31] Educating newly naturalized citizens of their rights and encouraging them to vote, as well as educating Americans on currently existing law, will be key to battling any misleading information. Furthermore, opponents to the amendment worry that such language could open the door to interpretation of who qualifies as a “citizen,” potentially stripping away birthright citizenship from people who were born in the U.S. to parents without American citizenships.[32] Trump has explicitly said that if reelected, he would end birthright citizenship via executive order.[33] 

 Proponents of the amendment hoped that the language change would help North Carolinians feel more secure in the state’s election results.[34] North Carolina House Speaker Tim Moore echoed this sentiment, stating that the alleged “efforts to allow non-citizens to vote would undermine the public’s confidence in our electoral system and leave the door open for chaos and election fraud to take hold.”[35] Referring to the amendment as a “safeguard,” he further clarified his belief that “this amendment to our constitution would further strengthen election integrity in North Carolina.”[36] 

Across the country, North Carolina and the seven other states that voted in favor of adopting the amendment during the 2024 election join seven states with pre-existing language in their state constitutions explicitly prohibiting noncitizen voting.[37] Those states include Alabama, Arizona, Colorado, Florida, Louisiana, North Dakota, and Ohio.[38] Considering this, it would be unsurprising to see more and more states propose similar amendments to their state constitutions in the next election, particularly in states led by Republican supermajorities. 

[1] What is the ‘citizens-only’ amendment on the 2024 ballot in North Carolina?, ABC11 (Oct. 22, 2024), https://abc11.com/post/2024-election-what-is-citizens-amendment-ballot-north-carolina/15450474/. 

[2] Id.

[3] Id.

[4] Vote No on NC’s Citizens-Only Ballot Measure, ACLU North Carolina (Sept. 25, 2024), https://www.acluofnorthcarolina.org/en/news/vote-no-ncs-citizens-only-ballot-measure.

[5] Id.

[6] Kaanita Iyer, 8 states will vote to bar noncitizen voting, CNN projects, something already illegal in federal elections, CNN (updated Nov. 6, 2024), https://www.cnn.com/2024/11/03/politics/noncitizen-voting-ballot-measures-election/index.html.

[7] Id.

[8] H.R. 1074, 156th Gen. Assemb., Reg. Sess. (N.C. 2023). 

[9] ABC11, supra note 1.

[10] NCGOP Commends General Assembly for Placing Citizen-Only Voting Constitutional Amendment on 2024 Ballot, NCGOP (July 1, 2024), https://www.nc.gop/ncgop_commends_general_assembly_for_placing_citizen-only_voting_constitutional_amendment_on_2024_ballot.

[11] Id.

[12] Laura Doan, Trump falsely claims noncitizen voter fraud is widespread. Here are 5 facts., CBS News (October 30, 2024), https://www.cbsnews.com/news/trump-noncitizen-voter-fraud-fact-check/.

[13] Nicole Acevedo & Sakshi Venkatraman, Citizens-only ballot measures make newly naturalized Americans voting for the first time feel on edge, NBC News (Oct. 22, 2024), https://www.nbcnews.com/news/latino/citizens-only-ballot-measures-make-newly-naturalized-americans-voting-rcna176092.

[14] Id.

[15] Id.

[16] ACLU North Carolina, supra note 4.

[17] Vote “Against” Constitutional Amendment, Democracy NC, https://democracync.org/resources/vote-no-on-citizens-only-amendment/ (last visited Nov. 8, 2024).

[18] Doan, supra note 12.

[19] Glenn Kessler, The truth about noncitizen voting in federal elections, Wash. Post (March 6, 2024), https://www.washingtonpost.com/politics/2024/03/06/truth-about-noncitizen-voting-federal-elections/.

[20] Douglas Keith et al., Noncitizen Voting: The Missing Millions, Brennan Center for Justice (May 5, 2017), https://www.brennancenter.org/our-work/research-reports/noncitizen-voting-missing-millions.

[21] Emily Vespa, What to know about the citizen-only voting amendment on North Carolina’s Ballot, News & Observer (Oct. 31, 2024), https://www.newsobserver.com/news/politics-government/election/voter-guide/article294655104.html.

[22] ACLU North Carolina, supra note 4.

[23] North Carolina Constitutional Amendment H1074/S630 Election Results: Require Citizenship to Vote, N.Y. Times, https://www.nytimes.com/interactive/2024/11/05/us/elections/results-north-carolina-constitutional-amendment-h1074s630-require-citizenship-to-vote.html (last visited Nov. 8, 2024).

[24] Id.

[25] Id.

[26] Id.

[27] Id.

[28] Adam Edelman, Ballot measures targeting noncitizen voting approved in 8 states, NBC News (Nov. 6, 2024), https://www.nbcnews.com/politics/2024-election/ballot-measures-targeting-noncitizen-voting-approved-8-states-rcna178888.

[29] Will Doran, Citizen-only voting amendment passes with strong support among NC voters, WRAL News (updated Nov. 6, 2024), https://www.wral.com/story/citizen-only-voting-amendment-passes-with-strong-support-among-nc-voters/21705796/.

[30] Id.

[31] Id.

[32] Id.

[33] Ted Hesson, Trump vows to end birthright citizenship for children of immigrants in US illegally, Reuters (May 30, 2023), https://www.reuters.com/world/us/trump-vows-end-birthright-citizenship-children-immigrants-us-illegally-2023-05-30/.

[34] NCGOP, supra note 10.

[35] Id.

[36] Id.

[37] Laws permitting noncitizens to vote in the United States, Ballotpedia, https://ballotpedia.org/Laws_permitting_noncitizens_to_vote_in_the_United_States#States_where_noncitizen_voting_is_prohibited (last visited Nov. 6, 2024).

[38] Id.

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4Dec

Georgia Runoff Election and the Debate Over Voter Fraud

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Election Day Tips – The Gator's Eye

Rebecca Paulus

“The management of Georgia elections has become an embarrassment for our state. Georgians are outraged, and rightly so.”[1] This scathing condemnation originates from a joint statement issued by Senators David Perdue and Kelly Loeffler, demanding that Georgia Secretary of State Brad Raffensperger resign because he “has failed to deliver honest and transparent elections.”[2] Control of the United States Senate hinges upon Georgia’s January runoff Senate election,[3] and across the country, Republican politicians and activists are alleging past voter fraud in Georgia and sounding the alarm about potential upcoming voter fraud.[4] Past voter fraud in Georgia has been dismissed by the courts,[5] and Georgia’s official election results have been officially certified by its Republican Governor, Brian Kemp, and its Republican Secretary of State, Brad Raffensperger.[6]

So, what comes next for this unlikely battleground state:  More allegations of voter fraud? Actual voter fraud? With the control of the United States Senate and the efficacy of President-Elect Biden’s first two years at stake, all eyes are on Georgia.[7] Former Democratic Presidential Candidate Andrew Yang issued a series of controversial tweets, proclaiming that he was “moving to Georgia” to help Jon Osoff and Reverend Warnock win, and stating that “[e]veryone who campaigned for Joe should get ready to head to Georgia.”[8]

While Yang later clarified that he does not plan to register to vote in Georgia,[9] Georgia election officials take this potentially legitimate kind of voter fraud very seriously.[10] To preempt out-of-staters from moving to Georgia exclusively for the purpose of voting in the January Senate runoffs elections, Secretary of State Brad Raffensperger issued a harsh warning.[11] His statement advised that any groups helping individuals move to Georgia to vote in January’s election are engaging in a conspiracy to commit voter fraud and may be charged under Georgia’s Racketeering Conspiracy laws.[12] “Make no mistake about it, I will seek to prosecute those who try to undermine our elections to the fullest extent of the law,” said Raffensperger.[13] However, questions remain regarding whether such efforts do indeed constitute fraud and whether they are likely to occur.

United States election laws stem from the original drafting of the Constitution; Article 1 of the Constitution delegates the responsibility of overseeing federal elections to the states.[14] Constitutional amendments and federal laws have further cemented and elucidated voting rights.[15] While these amendments and laws decrease or eliminate barriers to voting, 52 U.S.C. § 20511 lays out the “Criminal Penalties” for voter fraud.[16] Most relevant to the Georgia runoff election is subsection (2) which holds that in a federal election, anyone who defrauds a State of a fair, impartial election by procuring or submitting fraudulent or false voter ballots shall be fined and/or imprisoned.[17] This federal statute focuses on fraudulence in violation of state election law, which here involves Georgia state law.

Per Georgia state law, a United States citizen who moves to Georgia now can legally vote in the upcoming January 2021 runoff election if they register to vote by December 7, 2020. However, they must become a resident, not just a fleeting inhabitant, in order to vote. Georgia election law requires that registrants be “a resident of this state and of the county or municipality in which he or she seeks to vote.”[18] Additionally, “[t]he residence of any person shall be held to be in that place in which such person’s habitation is fixed, without any present intention of removing therefrom.”[19] These statutes clearly preclude someone from moving to Georgia with the sole intention of voting in the runoff election and then leaving.

Someone who registers to vote knowing that they do not possess the qualifications required by law, Georgian residency for example, commits a felony and can be punished up to ten years in prison, and/or up to a $100,000 fine.[20] A person or group that organizes or finances efforts to bring individuals to Georgia to register falsely as electors may also be charged with felony racketeering,[21] which can be punishable by between five and twenty years in prison and up to $25,000 per count.[22]

For those who seek to register to vote in Georgia, Georgia’s Online Voter Registration system gives two options: (1) register using a valid Georgia driver’s license or (2) manually submit a paper registration.[23] If choosing option (1), a new Georgia resident must obtain a driver’s license, which requires three steps. First, an applicant must be at least 18 years old (or 17 in some cases), visit a DDS Customer Service Center, and either surrender her license from her former state or provide a certified copy of her driving record from the state that issued her previous license.[24] If an applicant’s license has expired, she must take and pass the written knowledge, road, and vision exams.[25] Finally, an applicant must pay a $32 fee.[26] Clearly, there are non-trivial requirements to obtaining a Georgia license, including the surrender of a previous license, thus anyone attempting to register to vote fraudulently in Georgia would likely choose option (2): manually submit a paper registration.

After clicking the second option online, a prospective Georgia voter must certify that she is a citizen of the United States, is a legal resident of the county, is at least 17.5 years old, is not serving a sentence for a conviction of a felony involving moral turpitude, and has not been declared incompetent by a judge.[27] Most relevant among these qualifications is the certification that the applicant is a legal resident of the county, which, as defined by Georgia statute above, necessarily includes a plan to remain in Georgia. If a nefariously intentioned prospective voter with no plans to remain in Georgia clicks that they are a legal resident of the country, they are committing perjury. Moving to the third step, an applicant must fill out their residential address or mailing address.[28] While step four requires the individual to provide their gender, last four digits of their social security number, email address, telephone number, and race, this step may be skipped.[29] Step five requires an applicant to “swear or affirm” that they “reside at the address listed above” and are “eligible to vote in Georgia.”[30] This step also warns that “[a]ny person who registers to vote knowing that such person does not possess the qualifications required by law . . . or who knowingly gives false information in registering shall be guilty of a felony.”[31] After completing this step, a voter must still print, sign, and date the application and deliver it to the county election office.

Obtaining a driver’s license or registering to vote without a license are lengthy processes that plainly apprise potential voters of the weighty consequences inherent to voter fraud in Georgia. Even if a person fraudulently registers to vote in Georgia, Georgia has among the strictest voter ID laws in the country.[32] Moreover, to request an Absentee Ballot in Georgia, a person must provide their Georgia State ID or Driver’s License Number.[33]

Registering to vote and voting in Georgia are each no small feat, and a comprehensive search for cases of voter fraud in Georgia by the Heritage Foundation found just twenty cases of actual voter fraud of any kind with any penalty from 1979 to the present.[34] While some may posit that is because voter fraud is difficult to detect,[35] there is simply no evidence of widespread voter fraud.[36] As the Center for Democracy & Technology explains it, (1) “the absentee process is full of security checks,” (2) “election officials easily stop voters from voting multiple times,” (3) “individual fraud is not worth it,” and (4) “widespread voter fraud is nearly impossible and would almost certainly be detected.”[37]

Allegations of voter fraud have ravaged the 2020 Election and show no sign of slowing down in the context of the pivotal Georgia Senate runoff. The mere allegation of voter fraud by prominent Republican voices has led 77% of Republicans to doubt the fairness and integrity of the 2020 presidential election, according to a Monmouth University Poll.[38] Two other polls reinforce this notion, with one poll finding that 73% of Republicans had little or no confidence that the election was fair[39] and a second poll determining that 67% of Republicans believed the 2020 election was either “probably” or “definitely” not free and fair.[40] American democracy suffers from these unsubstantiated allegations of voter fraud, and suspicions around the most recent presidential election and the upcoming Georgia election raise important questions about the state of our democracy and the future of our country.[41]

[1] Joint Statement From Senators David Perdue And Kelly Loeffler, David Perdue US Senate (Nov. 9, 2020), https://perduesenate.com/joint-statement-from-senators-david-perdue-and-kelly-loeffler/. 

[2] Id.

[3] Claudia Grisales, Senate Control Likely Decided By Fate Of 2 Georgia Runoff Races, NPR (Nov. 7, 2020, 7:00 AM), https://www.npr.org/2020/11/07/932068951/senate-control-likely-decided-by-fate-of-2-georgia-runoff-races.

[4] Trump Twitter Archive, TTA https://www.thetrumparchive.com/?searchbox=%22%40briankempga+%7C%7C+kemp%22&dates=%5B%222020-10-31%22%2C%222020-11-23%22%5D (last visited Nov. 24, 2020). Trump’s tweets to Georgia Governor Brian Kemp include: “Georgia Secretary of State, a so-called Republican (RINO), won’t let the people checking the ballots see the signatures for fraud. Why? Without this the whole process is very unfair and close to meaningless. Everyone knows that we won the state. Where is @BrianKempGA?” Id.; see also US election 2020: Why Republicans are fighting in Georgia, BBC (Nov. 21, 2020), https://www.bbc.com/news/election-us-2020-54976115 (“‘Senator [Lindsey] Graham implied for us to audit the envelopes and then throw out the ballots for counties who have the highest frequency error of signatures,’ the state’s top election official said.”).

[5] Rana L. Cash, 10 days, 1 lawsuit, 5 million ballots and endless fights later, election leaves Georgia politically bruised, USA Today (Nov. 14, 2020, 10:40 AM),  https://www.usatoday.com/story/news/politics/elections/2020/11/14/political-damage-georgia-election-lawsuits/6294225002/ (“A lawsuit filed by the Georgia Republicans and Trump campaign against the Board of Elections in Chatham County was quickly dismissed by a judge when no evidence that late ballots had been mixed with absentee ballots could be provided.”).

[6] Kate Brumback, Georgia officials certify election results showing Biden win, AP News (Nov. 20, 2020), https://apnews.com/article/georgia-certify-election-joe-biden-ea8f867d740f3d7d42d0a55c1aef9e69.  

[7] Grisales, supra note 3.

[8] Evan Koslof, VERIFY: Can you move to Georgia to vote in the Senate runoff races? Yes, but you have to plan on staying, 11 Alive (Nov. 18, 2020, 7:34 PM), https://www.11alive.com/article/news/politics/elections/georgia-runoff-election-race-2021-date-andrew-yang-move-to-georgia-voter-fraud-when-is-georgia-runoff-2021/65-3618b401-91d7-4faa-8605-0ada9b8b3b64.  

[9] Id.

[10]Secretary Raffensperger Issues Warning Against Groups Helping Out of State Illegal Voters: We Will Catch You. We Prosecute”, GA Sec’y of State, https://sos.ga.gov/index.php/elections/secretary_raffensperger_issues_warning_against_activist_groups_helping_out_of_state_illegal_voterswe_will_catch_you_we_prosecute (last visited Nov. 24, 2020).

[11] Id.

[12] Id.

[13] Id. 

[14] Voting and Election Laws, U.S. Gov’t, https://www.usa.gov/voting-laws (last visited Nov. 24, 2020).   

[15] Id. The 15th amendment gave African American men the right to vote in 1870; the 19th Amendment gave women the right to vote in 1920; the 24th Amendment eliminated poll taxes in 1964; and the 26th Amendment lowered the voting age for all elections to 18. Id. Among the important federal voting rights laws passed are the Civil Rights Act (“CRA”) of 1870, later amended by the CRA of 1957, 1960, and 1964, and the Voting Rights Act of 1965. Id.

[16] 52 U.S.C. § 20511.

[17] Id. A person, including an election official, who in any election for Federal office––

(2) knowingly and willfully deprives, defrauds, or attempts to deprive or defraud the residents of a State of a fair and impartially conducted election process, by—

(A) the procurement or submission of voter registration applications that are known by the person to be materially false, fictitious, or fraudulent under the laws of the State in which the election is held; or

(B) the procurement, casting, or tabulation of ballots that are known by the person to be materially false, fictitious, or fraudulent under the laws of the State in which the election is held,

shall be fined in accordance with title 18 (which fines shall be paid into the general fund of the Treasury, miscellaneous receipts (pursuant to section 3302 of title 31), notwithstanding any other law), or imprisoned not more than 5 years, or both.

[18] Ga. Code Ann. § 21-2-216(a)(4) (2019).

[19] Id. § 21-2-217(a)(1). “Resident” means a person is domiciled in the state; a change in domicile requires taking up residence in a different location with the intent to remain there. See Sun Printing & Publ’g Ass’n v. Edwards, 194 U.S. 377, 383 (1904) (“[T]o effect a change of one’s legal domicil, two things are indispensable: First, residence in a new domicil; and, second, the intention to remain there. . . . Both are alike necessary. Either without the other is insufficient.”).

 

[20]Ga. Code Ann.  § 21-2-561 (2019).

[21] Id. § 16-14-3(5)(A)(xxii).

[22] Id. § 16-14-5.

[23] Online Voter Registration, Ga. Sec’y of State, https://registertovote.sos.ga.gov/GAOLVR/welcometoga.do#no-back-button (last visited Nov. 24, 2020).  

[24] Transfer Out-of-State Driver’s License/ID, Ga. Dep’t. of Driver Servs., https://dds.georgia.gov/transfer-out-state-drivers-licenseid (last visited Nov. 24, 2020).  

[25] Id.

[26] Non-Commercial License Fees, Ga. Dep’t. of Driver Servs., https://dds.georgia.gov/non-commercial-license-fees (last visited Nov. 24, 2020).    

[27] Id.

[28] Id.

[29] Id.

[30] Id.

[31] Id. (citing Ga. Code Ann. § 21-2-561 (2019)).

[32] Voter Identification Laws in Effect in 2020, Nat’l Conf. of State Legis., https://www.ncsl.org/research/elections-and-campaigns/voter-id.aspx#Laws%20in%20Effect (including Georgia in the “Strict Photo ID” category); Georgia Voter Identification Requirements, Ga. Sec’y of State, https://sos.ga.gov/index.php/elections/georgia_voter_identification_requirements2. One of the following six options must be presented to vote in person: “Any valid state or federal government issued photo ID, including a free ID Card issued by your county registrar’s office or the Georgia Department of Driver Services (DDS); A Georgia Driver’s License, even if expired; Valid employee photo ID from any branch, department, agency, or entity of the U.S. Government, Georgia, or any county, municipality, board, authority or other entity of this state; Valid U.S. passport ID; Valid U.S. military photo ID; or Valid tribal photo ID.” Id. To obtain a Voter ID in Georgia, a person must provide: “A photo identity document or approved non-photo identity document that includes full legal name and date of birth, Documentation showing the voter’s date of birth, Evidence that the applicant is a registered voter, [and] Documentation showing the applicant’s name and residential address.” Id.

[33] Absentee Ballot Request, Ga. Sec’y of State, https://ballotrequest.sos.ga.gov (last visited Nov. 24, 2020).    

[34] Election Fraud Cases, The Heritage Found., https://www.heritage.org/voterfraud/search?combine=&state=GA&year=&case_type=All&fraud_type=All&page=1 (last visited Nov. 24, 2020). 

[35] Carl Bialik, Voter Fraud: Hard to Identify, Wall Street J. (Aug. 31, 2012, 6:51 PM), https://www.wsj.com/articles/SB10000872396390443864204577621732936167586.

[36] Miles Parks, Ignoring FBI And Fellow Republicans, Trump Continues Assault On Mail-In Voting, NPR (Aug. 28, 2020),

https://www.npr.org/2020/08/28/906676695/ignoring-fbi-and-fellow-republicans-trump-continues-assault-on-mail-in-voting.

[37] William T. Adler, Why Widespread Mail-In Voter Fraud Is a Myth, Ctr. for Democracy & Tech. (Oct. 28, 2020), https://cdt.org/insights/why-widespread-mail-in-voter-fraud-is-a-myth/.

[38] Patrick Murray, National: More Americans Happy about Trump Loss than Biden Win, Monmouth Univ. 1 (Nov. 18, 2020) https://www.monmouth.edu/polling-institute/documents/monmouthpoll_us_111820.pdf/. 

[39] The Economist/YouGov Poll, YouGov 21 (Nov. 15-17, 2020), https://docs.cdn.yougov.com/02yn0jg6d7/econTabReport.pdf.

[40] National Tracking Poll #201162 Crosstabulation Results, Morning Consult & Politico 60 (Nov. 13-16, 2020), https://www.politico.com/f/?id=00000175-d6fb-d1da-a775-deffac670000.

[41] Perry Bacon Jr., What Trump’s Refusal to Concede Says About American Democracy, FiveThirtyEight (Nov. 17, 2020, 6:00 AM), https://fivethirtyeight.com/features/what-trumps-refusal-to-concede-says-about-american-democracy/.

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2Oct

Fourth Circuit Takes Bite out of NC Voter Law

Categories: 4th Cir. Blog
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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.

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