N.C. State Conference v. McCrory, No. 16-1468 (4th Cir. 2016)

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Justia Opinion Summary

These consolidated cases challenge provisions of a recently enacted North Carolina election law. Session Law 2013-381.2 imposed a number of voting restrictions. The law required in-person voters to show certain photo IDs, beginning in 2016, which African Americans disproportionately lacked, and eliminated or reduced registration and voting access tools that African Americans disproportionately used. Prior to the enactment of SL 2013-381, the legislature requested and received racial data as to usage of the practices changed by the proposed law. Upon receipt of the race data, the General Assembly enacted legislation that restricted voting and registration in five different ways, all of which disproportionately affected African Americans. The court concluded that the asserted justifications for the law cannot and do not conceal the State’s true motivation: taking away minority voters' opportunity because they were about to exercise it. Therefore, the court concluded that the General Assembly enacted the challenged provisions of the law with discriminatory intent. The court reversed and remanded with instructions to enjoin the challenged provisions of the law.

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PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 16-1468 NORTH CAROLINA STATE CONFERENCE OF THE NAACP; ROSANELL EATON; EMMANUEL BAPTIST CHURCH; BETHEL A. BAPTIST CHURCH; COVENANT PRESBYTERIAN CHURCH; BARBEE’S CHAPEL MISSIONARY BAPTIST CHURCH, INC.; ARMENTA EATON; CAROLYN COLEMAN; JOCELYN FERGUSON-KELLY; FAITH JACKSON; MARY PERRY, MARIA TERESA UNGER PALMER, Plaintiffs - Appellants, and JOHN DOE 1; JANE DOE 1; JOHN DOE 2; JANE DOE 2; JOHN DOE 3; JANE DOE 3; NEW OXLEY HILL BAPTIST CHURCH; CLINTON TABERNACLE AME ZION CHURCH; BAHEEYAH MADANY, Plaintiffs, v. PATRICK L. MCCRORY, in his official capacity as Governor of the State of North Carolina; KIM WESTBROOK STRACH, in her official capacity as a member of the State Board of Elections; 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; JAMES BAKER, in his official capacity as a member of the North Carolina State Board of Elections, Defendants - Appellees. ---------------------------- CONSTITUTIONAL ACCOUNTABILITY CENTER; STACEY STITT; MARIA DIAZ; ROBERT GUNDRUM; MISTY TAYLOR; SERVICE EMPLOYEES INTERNATIONAL UNION; DEMOCRACY NORTH CAROLINA; UNC CENTER FOR CIVIL RIGHTS; PEARLEIN REVELS; LOUISE MITCHELL; ERIC LOCKLEAR; ANITA HAMMONDS BLANKS, Amici Supporting Appellants, JUDICIAL WATCH, INCORPORATED; ALLIED EDUCATIONAL FOUNDATION; THOM TILLIS; LINDSEY GRAHAM; TED CRUZ; MIKE LEE; JUDICIAL EDUCATION PROJECT; LAWYERS DEMOCRACY FUND; MOUNTAIN STATES LEGAL FOUNDATION; AMERICAN CIVIL RIGHTS UNION; STATE OF INDIANA; STATE OF ALABAMA; STATE OF ARIZONA; STATE OF ARKANSAS; STATE OF GEORGIA; STATE OF KANSAS; STATE OF MICHIGAN; STATE OF NORTH DAKOTA; STATE OF OHIO; STATE OF OKLAHOMA; STATE OF SOUTH CAROLINA; STATE OF TEXAS; STATE OF WEST VIRGINIA; STATE OF WISCONSIN; PACIFIC LEGAL FOUNDATION; CENTER FOR EQUAL OPPORTUNITY; PROJECT 21, Amici Supporting Appellees. No. 16-1469 LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA; NORTH CAROLINA A. PHILIP RANDOLPH INSTITUTE; UNIFOUR ONESTOP COLLABORATIVE; COMMON CAUSE NORTH CAROLINA; GOLDIE WELLS; KAY BRANDON; OCTAVIA RAINEY; SARA STOHLER; HUGH STOHLER, Plaintiffs, CHARLES M. GRAY; ASGOD BARRANTES; MARY-WREN RITCHIE, Intervenors/Plaintiffs, and LOUIS M. DUKE; JOSUE E. BERDUO; NANCY J. LUND; BRIAN M. MILLER; BECKY HURLEY MOCK; LYNNE M. WALTER; EBONY N. WEST, Intervenors/Plaintiffs - Appellants, v. 2 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; PATRICK L. MCCRORY, in his official capacity as Governor of the State of North Carolina, Defendants - Appellees. ---------------------------CONSTITUTIONAL ACCOUNTABILITY CENTER; STACEY STITT; MARIA DIAZ; ROBERT GUNDRUM; MISTY TAYLOR; SERVICE EMPLOYEES INTERNATIONAL UNION; DEMOCRACY NORTH CAROLINA; UNC CENTER FOR CIVIL RIGHTS; PEARLEIN REVELS; LOUISE MITCHELL; ERIC LOCKLEAR; ANITA HAMMONDS BLANKS, Amici Supporting Appellants, JUDICIAL WATCH, INCORPORATED; ALLIED EDUCATIONAL FOUNDATION; THOM TILLIS; LINDSEY GRAHAM; TED CRUZ; MIKE LEE; JUDICIAL EDUCATION PROJECT; LAWYERS DEMOCRACY FUND; MOUNTAIN STATES LEGAL FOUNDATION; AMERICAN CIVIL RIGHTS UNION; STATE OF INDIANA; STATE OF ALABAMA; STATE OF ARIZONA; STATE OF ARKANSAS; STATE OF GEORGIA; STATE OF KANSAS; STATE OF MICHIGAN; STATE OF NORTH DAKOTA; STATE OF OHIO; STATE OF OKLAHOMA; STATE OF SOUTH CAROLINA; STATE OF TEXAS; STATE OF WEST VIRGINIA; STATE OF WISCONSIN; PACIFIC LEGAL FOUNDATION; CENTER FOR EQUAL OPPORTUNITY; PROJECT 21, Amici Supporting Appellees. No. 16-1474 LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA; NORTH CAROLINA A. PHILIP RANDOLPH INSTITUTE; UNIFOUR ONESTOP COLLABORATIVE; COMMON CAUSE NORTH CAROLINA; GOLDIE WELLS; KAY BRANDON; OCTAVIA RAINEY; SARA STOHLER; HUGH STOHLER, Plaintiffs - Appellants, 3 and LOUIS M. DUKE; CHARLES M. GRAY; ASGOD BARRANTES; JOSUE E. BERDUO; BRIAN M. MILLER; NANCY J. LUND; BECKY HURLEY MOCK; MARY-WREN RITCHIE; LYNNE M. WALTER; EBONY N. WEST, Intervenors/Plaintiffs, v. 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; PATRICK L. MCCRORY, in his official capacity as Governor of the State of North Carolina, Defendants - Appellees. ---------------------------CONSTITUTIONAL ACCOUNTABILITY CENTER; STACEY STITT; MARIA DIAZ; ROBERT GUNDRUM; MISTY TAYLOR; SERVICE EMPLOYEES INTERNATIONAL UNION; DEMOCRACY NORTH CAROLINA; UNC CENTER FOR CIVIL RIGHTS; PEARLEIN REVELS; LOUISE MITCHELL; ERIC LOCKLEAR; ANITA HAMMONDS BLANKS, Amici Supporting Appellants, JUDICIAL WATCH, INCORPORATED; ALLIED EDUCATIONAL FOUNDATION; THOM TILLIS; LINDSEY GRAHAM; TED CRUZ; MIKE LEE; JUDICIAL EDUCATION PROJECT; LAWYERS DEMOCRACY FUND; MOUNTAIN STATES LEGAL FOUNDATION; AMERICAN CIVIL RIGHTS UNION; STATE OF INDIANA; STATE OF ALABAMA; STATE OF ARIZONA; STATE OF ARKANSAS; STATE OF GEORGIA; STATE OF KANSAS; STATE OF MICHIGAN; STATE OF NORTH DAKOTA; STATE OF OHIO; STATE OF OKLAHOMA; STATE OF SOUTH CAROLINA; STATE OF TEXAS; STATE OF WEST VIRGINIA; STATE OF WISCONSIN; PACIFIC LEGAL FOUNDATION; CENTER FOR EQUAL OPPORTUNITY; PROJECT 21, Amici Supporting Appellees. 4 No. 16-1529 UNITED STATES OF AMERICA, Plaintiff - Appellant, v. STATE OF NORTH CAROLINA; NORTH ELECTIONS; KIM WESTBROOK STRACH, CAROLINA STATE BOARD OF Defendants - Appellees, and CHRISTINA KELLEY INCORPORATED, GALLEGOS-MERRILL; JUDICIAL WATCH, Intervenors/Defendants. ---------------------------CONSTITUTIONAL ACCOUNTABILITY CENTER; STACEY STITT; MARIA DIAZ; ROBERT GUNDRUM; MISTY TAYLOR; SERVICE EMPLOYEES INTERNATIONAL UNION; DEMOCRACY NORTH CAROLINA; UNC CENTER FOR CIVIL RIGHTS; PEARLEIN REVELS; LOUISE MITCHELL; ERIC LOCKLEAR; ANITA HAMMONDS BLANKS, Amici Supporting Appellant, JUDICIAL WATCH, INCORPORATED; ALLIED EDUCATIONAL FOUNDATION; THOM TILLIS; LINDSEY GRAHAM; TED CRUZ; MIKE LEE; JUDICIAL EDUCATION PROJECT; LAWYERS DEMOCRACY FUND; MOUNTAIN STATES LEGAL FOUNDATION; AMERICAN CIVIL RIGHTS UNION; STATE OF INDIANA; STATE OF ALABAMA; STATE OF ARIZONA; STATE OF ARKANSAS; STATE OF GEORGIA; STATE OF KANSAS; STATE OF MICHIGAN; STATE OF NORTH DAKOTA; STATE OF OHIO; STATE OF OKLAHOMA; STATE OF SOUTH CAROLINA; STATE OF TEXAS; STATE OF WEST VIRGINIA; STATE OF WISCONSIN; PACIFIC LEGAL FOUNDATION; CENTER FOR EQUAL OPPORTUNITY; PROJECT 21, Amici Supporting Appellees. 5 Appeals from the United States District Court for the Middle District of North Carolina, at Greensboro. Thomas D. Schroeder, District Judge. (1:13-cv-00658-TDS-JEP; 1:13-cv-00660-TDS-JEP; 1:13-cv-00861-TDS-JEP) Argued: June 21, 2016 Decided: July 29, 2016 Before MOTZ, WYNN, and FLOYD, Circuit Judges. Reversed and remanded by published opinion. Judge Motz wrote the opinion for the court, in which Judge Wynn and Judge Floyd joined except as to Part V.B. Judge Wynn wrote the opinion for the court as to Part V.B., in which Judge Floyd joined. Judge Motz wrote a separate dissenting opinion as to Part V.B. ARGUED: Anna Marks Baldwin, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Penda D. Hair, ADVANCEMENT PROJECT, Washington, D.C.; Allison Jean Riggs, SOUTHERN COALITION FOR SOCIAL JUSTICE, Durham, North Carolina, for Appellants. Thomas A. Farr, OGLETREE DEAKINS NASH SMOAK & STEWART, PC, Raleigh, North Carolina; Alexander McClure Peters, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellees. ON BRIEF: Denise D. Lieberman, Donita Judge, Caitlin Swain, ADVANCEMENT PROJECT, Washington, D.C.; Irving Joyner, Cary, North Carolina; Adam Stein, TIN FULTON WALKER & OWEN, PLLC, Chapel Hill, North Carolina; Daniel T. Donovan, Bridget K. O’Connor, K. Winn Allen, Michael A. Glick, Ronald K. Anguas, Jr., Madelyn A. Morris, KIRKLAND & ELLIS LLP, Washington, D.C., for Appellants North Carolina State Conference of Branches of the NAACP, Rosanell Eaton, Emmanuel Baptist Church, Bethel A. Baptist Church, Covenant Presbyterian Church, Barbee’s Chapel Missionary Baptist Church, Inc., Armenta Eaton, Carolyn Coleman, Jocelyn Ferguson-Kelly, Faith Jackson, Mary Perry, and Maria Teresa Unger Palmer. Edwin M. Speas, John O’Hale, Caroline P. Mackie, POYNER SPRUILL LLP, Raleigh, North Carolina; Joshua L. Kaul, Madison, Wisconsin, Marc E. Elias, Bruce V. Spiva, Elisabeth C. Frost, Amanda Callais, Washington, D.C., Abha Khanna, PERKINS COIE LLP, Seattle, Washington, for Appellants Louis M. Duke, Josue E. Berduo, Nancy J. Lund, Brian M. Miller, Becky Hurley Mock, Lynne M. Walter, and Ebony N. West. Dale E. Ho, Julie A. Ebenstein, Sophia Lin Lakin, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, INC., New York, New York; Christopher Brook, ACLU OF NORTH CAROLINA LEGAL FOUNDATION, 6 Raleigh, North Carolina; Anita S. Earls, George Eppsteiner, SOUTHERN COALITION FOR SOCIAL JUSTICE, Durham, North Carolina for Appellants League of Women Voters of North Carolina, North Carolina A. Philip Randolph Institute, Unifour Onestop Collaborative, Common Cause North Carolina, Goldie Wells, Kay Brandon, Octavia Rainey, Sara Stohler, and Hugh Stohler. Ripley Rand, United States Attorney for the Middle District of North Carolina, Gill P. Beck, Special Assistant United States Attorney for the Middle District of North Carolina, Gregory B. Friel, Deputy Assistant Attorney General, Justin Levitt, Deputy Assistant Attorney General, Diana K. Flynn, Christine H. Ku, Civil Rights Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellant United States of America. L. Gray Geddie, Jr., Phillip J. Strach, Michael D. McKnight, OGLETREE DEAKINS NASH SMOAK & STEWART, PC, Raleigh, North Carolina, for Appellees State of North Carolina and North Carolina State Board of Elections; Karl S. Bowers, Jr., BOWERS LAW OFFICE LLC, Columbia, South Carolina, Robert C. Stephens, OFFICE OF THE GOVERNOR OF NORTH CAROLINA, Raleigh, North Carolina, for Appellee Patrick L. McCrory. Elizabeth B. Wydra, Brianne J. Gorod, David H. Gans, CONSTITUTIONAL ACCOUNTABILITY CENTER, Washington, D.C., for Amicus Constitutional Accountability Center. Claire Prestel, Ryan E. Griffin, JAMES & HOFFMAN, P.C., Washington, D.C.; Mary Joyce Carlson, Washington, D.C.; Judith A. Scott, Lauren Bonds, Katherine Roberson-Young, SERVICE EMPLOYEES INTERNATIONAL UNION, Washington, D.C., for Amici Stacey Stitt, Maria Diaz, Robert Gundrum, Misty Taylor, and Service Employees International Union. Mark R. Sigmon, SIGMON LAW, PLLC, Raleigh, North Carolina, for Amicus Democracy North Carolina. Mark Dorosin, Elizabeth Haddix, Brent Ducharme, UNC CENTER FOR CIVIL RIGHTS, Chapel Hill, North Carolina, for Amicus UNC Center for Civil Rights. Jeanette Wolfley, Assistant Professor, UNIVERSITY OF NEW MEXICO SCHOOL OF LAW, Albuquerque, New Mexico, Arnold Locklear, LOCKLEAR, JACOBS, HUNT & BROOKS, Pembroke, North Carolina for Amici Pearlein Revels, Louise Mitchell, Eric Locklear, and Anita Hammonds Blanks. Bradley J. Schlozman, HINKLE LAW FIRM LLC, Wichita, Kansas; Chris Fedeli, Lauren M. Burke, JUDICIAL WATCH, INC., Washington, D.C.; H. Christopher Coates, LAW OFFICE OF H. CHRISTOPHER COATES, Charleston, South Carolina, for Amici Judicial Watch, Inc. and Allied Educational Foundation. Michael A. Carvin, Anthony J. Dick, Stephen A. Vaden, JONES DAY, Washington, D.C., for Amici Senators Thom Tillis, Lindsey Graham, Ted Cruz, Mike Lee, and the Judicial Education Project. Maya M. Noronha, Trevor M. Stanley, E. Mark Braden, Richard B. Raile, BAKER & HOSTETLER LLP, Washington, D.C., for Amicus Lawyers Democracy Fund. Joshua P. Thompson, Christopher M. Kieser, PACIFIC LEGAL 7 FOUNDATION, Sacramento, California, for Amici Pacific Legal Foundation, Center for Equal Opportunity, and Project 21. Steven J. Lechner, MOUNTAIN STATES LEGAL FOUNDATION, Lakewood, Colorado, for Amicus Mountain States Legal Foundation. Joseph A. Vanderhulst, PUBLIC INTEREST LEGAL FOUNDATION, Plainfield, Indiana, for Amicus American Civil Rights Union. Gregory F. Zoeller, Attorney General of Indiana, Thomas M. Fisher, Solicitor General, Winston Lin, Deputy Attorney General, OFFICE OF THE INDIANA ATTORNEY GENERAL, Indianapolis, Indiana; Luther Strange, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF ALABAMA, Montgomery, Alabama; Mark Brnovich, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF ARIZONA, Phoenix, Arizona; Leslie Rutledge, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF ARKANSAS, Little Rock, Arkansas; Sam Olens, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF GEORGIA, Atlanta, Georgia; Derek Schmidt, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF KANSAS, Topeka, Kansas; Bill Schuette, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF MICHIGAN, Lansing, Michigan; Wayne Stenehjem, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF NORTH DAKOTA, Bismarck, North Dakota; Michael DeWine, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF OHIO, Columbus, Ohio; E. Scott Pruitt, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF OKLAHOMA, Oklahoma City, Oklahoma; Alan Wilson, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAROLINA, Columbia, South Carolina; Ken Paxton, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF TEXAS, Austin, Texas; Patrick Morrisey, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF WEST VIRGINIA, Charleston, West Virginia; Brad D. Schimel, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF WISCONSIN, Madison, Wisconsin, for Amici States of Indiana, Alabama, Arizona, Arkansas, Georgia, Kansas, Michigan, North Dakota, Ohio, Oklahoma, South Carolina, Texas, West Virginia, and Wisconsin. 8 DIANA GRIBBON MOTZ, Circuit Judge, writing for the court except as to Part V.B.: These consolidated cases challenge provisions of a recently enacted North Carolina election law. The district court rejected contentions that the challenged provisions violate the Voting Rights Act and the Fourteenth, Fifteenth, and TwentySixth Amendments of the Constitution. record in this findings. We thoroughness. for many facts. case, the In evaluating the massive court appreciate and issued commend extensive the court factual on its The record evidence provides substantial support of its findings; indeed, many rest on uncontested But, for some of its findings, we must conclude that the district court legislature fundamentally did not enact erred. the In challenged holding that provisions the with discriminatory intent, the court seems to have missed the forest in carefully surveying the many trees. This failure of perspective led the court to ignore critical facts bearing on legislative intent, including the inextricable link between race and politics in North Carolina. Voting polarized. in many areas of North Carolina is racially That is, “the race of voters correlates with the selection of a certain candidate or candidates.” Thornburg v. Gingles, 478 U.S. 30, 62 (1986) (discussing North Carolina). In Gingles and other cases brought under the Voting Rights Act, the 9 Supreme Court has explained that polarization renders minority voters uniquely vulnerable to the inevitable tendency of elected officials to entrench themselves by targeting groups unlikely to vote for them. mechanisms and Americans will In North procedures Carolina, that predictably most redound restriction heavily to the of voting affect African benefit of political party and to the disadvantage of the other. one As the evidence in the record makes clear, that is what happened here. After years of preclearance and expansion of voting access, by 2013 African American registration and turnout rates had finally reached near-parity with white registration and turnout rates. African electoral force. Americans were poised to act as a major But, on the day after the Supreme Court issued Shelby County v. Holder, 133 S. Ct. 2612 (2013), eliminating preclearance obligations, a leader of the party that newly dominated the legislature (and the party that rarely enjoyed African American support) announced an intention to enact what he characterized as an “omnibus” election law. Before enacting that law, the legislature requested data on the use, by race, of a number of voting practices. Upon receipt of the race data, the General Assembly enacted legislation that restricted voting and registration in five different ways, disproportionately affected African Americans. 10 all of which In response discrimination meager to animated claims its justifications. African Americans that action, Although with the the almost intentional State new racial offered provisions surgical only target precision, they constitute inapt remedies for the problems assertedly justifying them and, in fact, impose cures for problems that did not exist. Thus the asserted justifications cannot and do not conceal the State’s true motivation. Latin American (2006), “the Citizens State “In essence,” as in League of United v. took Perry away (LULAC), [minority because [they] were about to exercise it.” 548 U.S. voters’] 399, 440 opportunity As in LULAC, “[t]his bears the mark of intentional discrimination.” Id. Faced with this record, we can only conclude that the North Carolina General Assembly enacted the challenged provisions of the law with discriminatory intent. Accordingly, we reverse the judgment of the district court to the contrary and remand with instructions to enjoin the challenged provisions of the law. I. “The Voting Rights Act of 1965 employed measures to address an extraordinary problem.” S. Ct. at Amendments 2618. to discrimination the in Although United the the States 11 Shelby Cty., 133 Fourteenth Constitution regulation of extraordinary and Fifteenth prohibit racial elections, state legislatures have too often found facially race-neutral ways to deny African Americans access to the franchise. See id. at 2619; Johnson v. De Grandy, 512 U.S. 997, 1018 (1994) (noting “the demonstrated ingenuity of state and local governments in hobbling minority substantially right to voting moved vote to from more power” direct, as “jurisdictions over[t] impediments sophisticated devices” have to the (alteration in original) (internal quotation marks omitted)). To remedy this problem, Congress enacted the Voting Rights Act. In its current form, § 2 of the Act provides: No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color . . . . 52 U.S.C. § 10301(a) (2012) (formerly 42 U.S.C. § 1973(a)). In addition to this general statutory prohibition on racial discrimination, Congress identified particular “covered” by § 5 of the Voting Rights Act. S. Ct. at 2619. 1972, had literacy turnout. Shelby Cty., 133 Covered jurisdictions were those that, as of maintained tests, jurisdictions and suspect had less Id. at 2619-20. were covered under the Act. prerequisites than 50% voter to voting, like registration or Forty North Carolina jurisdictions 28 C.F.R. pt. 51 app. (2016). As a result, whenever the North Carolina legislature sought to change 12 the procedures or qualifications for voting statewide or in those jurisdictions, it first had to seek “preclearance” with the United States Department of Justice. In doing so, the State had to demonstrate that a change had neither the purpose nor effect of “diminishing the ability of any citizens” to vote “on account of race or color.” 52 U.S.C. § 10304 (2012) (formerly 42 U.S.C. § 1973c). During the period in which North Carolina jurisdictions were covered by § 5, African American electoral participation dramatically improved. In particular, between 2000 and 2012, when the law provided for the voting mechanisms at issue here and did not registration require swelled by photo ID, 51.1%. African J.A. increase of 15.8% for white voters). 804 1 American (compared voter to an African American turnout similarly surged, from 41.9% in 2000 to 71.5% in 2008 and 68.5% in 2012. J.A. 1196-97. Not coincidentally, during this period North Carolina emerged as a swing state in national elections. Then, in late June opinion in Shelby County. preclearance data. coverage 2013, the Supreme Court issued its In it, the Court invalidated the formula, finding Shelby Cty., 133 S. Ct. at 2631. it based on outdated Consequently, as of that date, North Carolina no longer needed to preclear changes 1 Citations to “J.A. __” refer to the Joint Appendix filed by the parties in this appeal. 13 in its election laws. As the district court found, the day after the Supreme Court issued Shelby County, the “Republican Chairman of the [Senate] Rules Committee[] publicly stated, ‘I think we’ll have an omnibus bill coming out’ and . . . that the Senate would move ahead with the ‘full bill.’” N.C. State Conf. of the NAACP v. McCrory, 2016 WL 1650774, at *9 (M.D.N.C. Apr. 25, 2016). The legislature then swiftly expanded an essentially single-issue bill into omnibus legislation, enacting it as Session Law (“SL”) 2013-381. 2 In this one statute, the North Carolina legislature imposed a number of voting restrictions. voters to show certain photo The law required in-person IDs, beginning in 2016, which African Americans disproportionately lacked, and eliminated or reduced registration and voting Americans disproportionately used. *127, *131. access tools that African Id. at *9-10, *37, *123, Moreover, as the district court found, prior to enactment of SL 2013-381, the legislature requested and received racial data as to usage of the practices changed by the proposed law. Id. at *136-38. 2 The parties and the district court sometimes identify the law at issue in this case as House Bill or HB 589, the initial bill that originated in the House of the North Carolina General Assembly. That bill was amended in the North Carolina Senate and then enacted as SL 2013-381. See H.B. 589, 2013 Gen. Assemb. (N.C. 2013); 2013 N.C. Sess. Laws 381. 14 This data showed that African Americans disproportionately lacked the most common kind of photo ID, those issued by the Department of Motor Vehicles (DMV). Id. The pre-Shelby County version of SL 2013-381 provided that all government-issued IDs, even many that had been expired, would satisfy the requirement as an alternative to DMV-issued photo IDs. J.A. 2114-15. After Shelby County, with race data in hand, the legislature amended the bill to exclude many of the alternative photo IDs used by African Americans. Id. at *142; J.A. 2291-92. As amended, the bill retained only the kinds of IDs that white North Carolinians were more likely to possess. Id.; J.A. 3653, 2115, 2292. The district court found that, prior to enactment of SL 2013-381, legislators also requested breakdown of early voting usage. data as to Id. at *136-37. the racial Early voting allows any registered voter to complete an absentee application and ballot at the same time, in person, in advance of Election Day. Id. at *4-5. vote for those who Early voting thus increases opportunities to have difficulty getting to their polling place on Election Day. The racial data provided to the legislators revealed that African Americans disproportionately used early voting in both 2008 and 2012. Id. at *136-38; see also id. at *48 n.74 (trial evidence showing that 60.36% and 64.01% of African Americans voted early in 2008 and 2012, respectively, compared to 44.47% 15 and 49.39% of whites). In particular, African Americans disproportionately used the first seven days of early voting. Id. After receipt of this racial data, the General Assembly amended the bill to eliminate the first week of early voting, shortening the total early voting period from seventeen to ten days. Id. eliminated African at one *15, of American *136. two As a result, “souls-to-the-polls” churches provided SL 2013-381 Sundays transportation in to also which voters. Id. at *55. The district court found that legislators similarly requested data as to the racial makeup of same-day registrants. Id. at *137. Prior to SL 2013-381, same-day registration allowed eligible North Carolinians to register in person at an early voting site at the same time as casting their ballots. Id. at *6. Same-day registration provided opportunities for those as yet unable to register, as well as those who had ended up in the “incomplete registration attempting to register. provided an easy Id. at *65. avenue to queue” after previously Same-day registration also re-register for those who moved frequently, and allowed those with low literacy skills or other difficulty completing a registration form to receive personal assistance from poll workers. The legislature’s racial See id. data demonstrated that, as the district court found, “it is indisputable that African American 16 voters disproportionately used [same-day registration] when it was available.” that African Id. at *61. American disproportionate queue. registration percentage Id. at *65. The district court further found of applications the constituted incomplete a registration And the court found that African Americans “are more likely to move between counties,” and thus “are more likely to need to re-register.” Id. As evidenced by the types of errors that placed many African American applications in the incomplete queue, id. at *65, *123 & n.26, in-person assistance likely would disproportionately benefit African SL 2013-381 eliminated same-day registration. Legislators additionally requested a Americans. Id. at *15. racial breakdown provisional voting, including out-of-precinct voting. *136-37. of Id. at Out-of-precinct voting required the Board of Elections in each county to count the provisional ballot of an Election Day voter who appeared at the wrong precinct, but in the correct county, for all of the ballot items for which the voter was eligible to vote. Id. at *5-6. This provision assisted those who moved frequently, or who mistook a voting site as being in their correct precinct. The district court found that the racial data revealed that African Americans disproportionately voted provisionally. at *137. Id. In fact, the General Assembly that had originally enacted the out-of-precinct voting legislation had specifically 17 found that “of those registered voters who happened to vote provisional ballots outside their resident precincts” in 2004, “a disproportionately Id. at *138. high percentage African American.” With SL 2013-381, the General Assembly altogether eliminated out-of-precinct voting. African Americans preregistration. 17-year-olds, mandatory were also Id. at *69. when high Id. at *15. used Preregistration permitted 16- and obtaining school disproportionately driver’s licenses attending drives, registration or to identify themselves and indicate their intent to vote. Id. at *7, *68. This allowed County Boards of Elections to verify eligibility and automatically register eligible citizens once they reached eighteen. Id. at *7. Although preregistration increased turnout among young adult voters, SL 2013-381 eliminated it. Id. at *15, *69. 3 The eliminate district court found or restrict that these not only voting did SL 2013-381 mechanisms used disproportionately by African Americans, and require IDs that African Americans disproportionately lacked, but also that African Americans were more likely to “experience socioeconomic 3 SL 2013-381 also contained many provisions that did not restrict access to voting or registration and thus are not subject to challenge here. N.C. State Conf., 2016 WL 1650774, at *9. Of course, as explained below, our holding regarding discriminatory intent applies only to the law’s challenged portions. 18 factors that may hinder their political participation.” *89. Id. at This is so, the district court explained, because in North Carolina, move, African be Americans poor, less are “disproportionately educated, have transportation, and experience poor health.” less likely access to to Id. at *89. Nevertheless, over protest by many legislators and members of the public, the General Assembly quickly ratified SL 2013-381 by strict party-line votes. Id. at *9-13. The Governor, who was of the same political party as the party that controlled the General Assembly, promptly signed the bill into law on August 12, 2013. That Id. at *13. along with numerous other organizations and individuals, filed suit. Id. at *16. voting same day, the League of Women Voters, These Plaintiffs alleged that the restrictions on early and precinct elimination voting were of same-day motivated by registration discriminatory and out-of- intent in violation of § 2 of the Voting Rights Act and the Fourteenth and Fifteenth Amendments; that these provisions had a discriminatory result in violation of § 2 of the Voting Rights Act; and that these provisions burdened the right to contravention of the Fourteenth Amendment. vote generally, in See id. Also that same day, the North Carolina State Conference of the NAACP, in conjunction with several other organizations and individuals, filed a separate action. 19 Id. They alleged that the photo ID requirement and the provisions challenged by the League of Women Voters produced discriminatory results under § 2 and demonstrated intentional discrimination in violation of the Fourteenth and Fifteenth Amendments. Id. Soon thereafter, the United States also filed suit, challenging the same provisions as discriminatory in both purpose and result in violation of § 2 of the Voting Rights Act. Id. Finally, a group of “young voters” intervened, alleging that these same provisions violated their rights under the Fourteenth and Twenty-Sixth Amendments. Id. 4 The district court consolidated the cases. Ahead of the 2014 midterm general Id. election, Plaintiffs moved for a preliminary injunction of several provisions of the law. See N.C. State Conf. of the NAACP v. McCrory, 997 F. Supp. 2d 322, 339 (M.D.N.C. 2014). motion. the case Id. at 383. with The district court denied the On appeal, we reversed in part, remanding instructions to issue an order staying the elimination of same-day registration and out-of-precinct voting. League of Women Voters of N.C. v. North Carolina (LWV), 769 F.3d 224, 248-49 (4th Cir. 2014). Over the dissent of two Justices, the Supreme Court stayed our injunction mandate on October 8, 2014, pending its decision 4 The complaints also challenged a few other provisions of SL 2013-381 that are not challenged on appeal and so not discussed here. See, e.g., J.A. 16448. 20 on certiorari. See North Carolina v. League of Women Voters of N.C., 135 S. Ct. 6 (2014) (mem.). Court denied certiorari. Voters of N.C., 135 On April 6, 2015, the Supreme See North Carolina v. League of Women S.Ct. 1735 (2015) (mem.). This denial automatically reinstituted the preliminary injunction, restoring same-day registration and out-of-precinct outcome of trial in this case. voting pending the North Carolina v. League of Women Voters of N.C., 135 S. Ct. at 6. That consolidated trial was scheduled to begin on July 13, 2015. N.C. State Conf., 2016 WL 1650774, at *18. However, on June 18, 2015, the General Assembly ratified House Bill 836, enacted as Session Law (“SL”) 2015-103. Id. at *13, *18. This new law amended the photo ID requirement by permitting a voter without acceptable completed a impediment ID to acquiring acceptable to in challenges requirement. to provisional stating court Beginning a declaration impediment exception”). district cast Id. at *13. bifurcated July all Id. 2015, of In that trial the the of court photo had ID if he a reasonable (“the reasonable Given this enactment, the the case. conducted provisions January he ballot 2016, except the Id. a at trial the court on *18. the photo conducted ID a separate trial on the photo ID requirement, as modified by the reasonable impediment exception. 21 Id. On April 25, 2016, the district court entered judgment against the Plaintiffs on all of their claims as to all of the challenged provisions. Id. at *171. The court found no discriminatory results under § 2, no discriminatory intent under § 2 or the Fourteenth and Fifteenth Amendments, no undue burden on the right to vote generally under the Fourteenth Amendment, and no violation of the Twenty-Sixth Amendment. *133-34, *148, *164, *167. See id. at At the same time, acknowledging the imminent June primary election, the court temporarily extended the preliminary injunction of same-day registration and out-ofprecinct voting through that election. Id. at *167. The photo ID requirement went into effect as scheduled for the first time in the March 2016 primary election, and was again in effect during the June primary election. Id. at *19, *171. Plaintiffs timely noted this appeal. 24976, 24980. J.A. 24967, 24970, They also requested that we stay the district court’s mandate and extend the preliminary injunction, which we did pending our decision in this case. Order Extending the Existing Stay, No. 16-1468 (Dkt. No. 122). On appeal, Plaintiffs reiterate their attacks on the photo ID requirement, the reduction in days of early voting, and the elimination and of same-day preregistration, registration, alleging Americans and Hispanics. out-of-precinct discrimination against voting, African Because the record evidence is limited 22 regarding Hispanics, Americans. 381 confine our analysis to African We hold that the challenged provisions of SL 2013- were enacted violation we of the with Equal racially Protection discriminatory intent Clause Fourteenth Amendment and § 2 of the Voting Rights Act. of the in We need not and do not reach Plaintiffs’ remaining claims. II. A. An appellate court can reverse a district court’s factual findings only if clearly erroneous. United Gypsum Co., 333 U.S. 364, 395 (1948). States v. U.S. This standard applies to the ultimate factual question of a legislature’s discriminatory motivation. (1982); (1999). See Pullman-Standard v. Swint, 456 U.S. 273, 287-88 Hunt v. Cromartie (Cromartie I), 526 U.S. 541, 549 Such a finding is clearly erroneous if review of the entire record leaves the appellate court “with the definite and firm conviction that the [d]istrict [c]ourt’s key findings are mistaken.” Easley v. Cromartie (Cromartie II), 532 U.S. 234, 243 (citation (2001) and internal quotation marks omitted). This is especially so when “the key evidence consisted primarily of documents and expert testimony” evaluations played a minor role.” 23 Id. and “[c]redibility Moreover, if “the record permits only one resolution of the factual issue” of discriminatory purpose, then an appellate court need not remand the case to the district court. Pullman- Standard, at 292; see Cromartie II, 532 U.S. at 257 (reversing, without remanding, racial intent redistricting (1985) three-judge predominated plan); (affirming Hunter Court of court’s in v. factual creation Underwood, Appeals’ 471 reversal finding of U.S. that challenged 222, without 229 remand where district court’s finding of no discriminatory purpose was clearly erroneous); Dayton Bd. of Educ. v. Brinkman, 443 U.S. 526, 534, 542 (1979) (affirming Court of Appeals’ reversal of finding of no intentional discrimination with remand only to enter remedy order). In Village Development of Corp., Arlington Heights 429 252 U.S. v. Metropolitan (1977), the Supreme Housing Court addressed a claim that racially discriminatory intent motivated a facially neutral governmental action. The Court recognized that a facially neutral law, like the one at issue here, can be motivated by invidious racial discrimination. Id. at 264-66. If discriminatorily motivated, such laws are just as abhorrent, and just as unconstitutional, discriminate on the basis of race. 426 U.S. 229, 241 (1976). 24 as laws that expressly Id.; Washington v. Davis, When considering whether discriminatory intent motivates a facially neutral law, a court must undertake a “sensitive inquiry into such circumstantial and direct evidence of intent as may be available.” Arlington Heights, 429 U.S. at 266. Challengers need not show that discriminatory purpose was the “sole[]” or even a “primary” motive for the legislation, just that it was “a motivating factor.” added). Id. at 265-66 (emphasis Discriminatory purpose “may often be inferred from the totality of the relevant facts, including the fact, if it is true, that the law bears more heavily on one race than another.” Davis, 426 U.S. at 242. But the ultimate question remains: did the legislature enact a law “because of,” and not “in spite of,” its discriminatory effect. Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 279 (1979). In Arlington Heights, the Court set forth a nonexhaustive list of factors to consider in making this sensitive inquiry. These include: “[t]he historical background of the [challenged] decision”; “[t]he specific sequence of events leading up to the challenged sequence”; decision”; the “[d]epartures legislative history from of the normal procedural decision; and of course, the disproportionate “impact of the official action -whether it bears more heavily on one race than another.” Arlington Heights, 429 U.S. at 266-67 (internal quotation marks omitted). 25 In instructing courts to consider the broader context surrounding the passage of legislation, the Court has recognized that “[o]utright admissions of impermissible racial motivation are infrequent evidence.” such as and plaintiffs often must Cromartie I, 526 U.S. at 553. the one here, where the rely upon other In a vote denial case plaintiffs allege that the legislature imposed barriers to minority voting, this holistic approach is particularly important, for “[d]iscrimination today is more subtle than the visible methods used in 1965.” H.R. Rep. No. 109-478, at 6 (2006), as reprinted in 2006 U.S.C.C.A.N. 618, 620. facially Even “second-generation barriers” to voting, while race neutral, may nonetheless impermissible racial discrimination. 2635 (Ginsburg, J., dissenting) be motivated by Shelby Cty., 133 S. Ct. at (cataloguing ways in which facially neutral voting laws continued to discriminate against minorities even after passage of Voting Rights Act). “Once racial ‘substantial’ or discrimination shown factor ‘motivating’ is behind to have enactment been of a the law, the burden shifts to the law’s defenders to demonstrate that the law would have Hunter, 471 U.S. at 228. been enacted without this factor.” When determining if this burden has been met, courts must be mindful that “racial discrimination is not just another competing consideration.” 429 U.S. at 265-66. Arlington Heights, For this reason, the judicial deference 26 accorded to legislators when “balancing considerations” is “no longer justified.” numerous Id. competing Instead, courts must scrutinize the legislature’s actual non-racial motivations to determine whether they alone can justify the legislature’s choices. See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977); cf. Miss. Univ. for Women v. Hogan, 458 U.S. 718, 728 (1982) (describing “inquiry into the actual purposes underlying a statutory scheme” that classified based on gender (emphasis added) (internal quotation marks omitted)). If a court finds that a statute is unconstitutional, it can enjoin the law. See, e.g., Hunter, 471 U.S. at 231; Anderson v. Martin, 375 U.S. 399, 404 (1964). B. In the context of a § 2 discriminatory intent analysis, one of the critical background facts of which a court must take notice is whether voting is racially polarized. Indeed, to prevail in a case alleging discriminatory dilution of minority voting strength under § 2, a plaintiff must prove this fact as a threshold showing. polarization See Gingles, 478 U.S. at 51, 56, 62. “refers to the situation where . . . vote in blocs for different candidates.” legal concept “incorporates neither Racial different Id. at 62. causation nor races This intent” regarding voter preferences, for “[i]t is the difference between the choices made by blacks and whites -- not the reasons for 27 that difference discriminatory -- laws that to results” have their in the intended opportunity political for effect. Id. at 62-63. While the Supreme Court has expressed hope that “racially polarized voting is waning,” it has at the same time recognized that “racial discrimination and racially polarized voting are not ancient history.” (2009). In fact, recent scholarship suggests that, in the years following country Bartlett v. Strickland, 556 U.S. 1, 25 President formerly increase in Obama’s subject racially to election § 5 in 2008, preclearance polarized areas have voting. See of seen the an Stephen Ansolabehere, Nathaniel Persily & Charles Stewart III, Regional Differences in Racial Polarization in the 2012 Presidential Election: Implications for the Constitutionality of Section 5 of the Voting Rights Act, 126 Harv. L. Rev. F. 205, 206 (2013). Further, “[t]his gap is not the result of mere partisanship, for even when controlling for partisan identification, race is a statistically significant predictor of vote choice, especially in the covered jurisdictions.” Racially evidence of polarized racial Id. voting is not, in and of itself, discrimination. But it does provide an incentive for intentional discrimination in the regulation of elections. In reauthorizing the Voting Rights Act in 2006, Congress recognized that “[t]he potential for discrimination in 28 environments great.” take characterized by racially H.R. Rep. No. 109-478, at 35. many challenges forms. centered One on common vote polarized voting is This discrimination can way it dilution, has where surfaced is in “manipulation of district lines can dilute the voting strength of politically cohesive minority group members.” De Grandy, 512 U.S. at 1007 (emphasis added); see also Voinovich v. Quilter, 507 U.S. 146, 153-54 (1993). It is the political cohesiveness of the minority groups that provides the political payoff for legislators who seek to dilute or limit the minority vote. The Supreme Court squarely confronted this connection in LULAC. There, the record evidence revealed racially polarized voting, such that 92% of Latinos voted against an incumbent of a particular party, whereas 88% of non-Latinos voted for him. 548 U.S. at 427. The Court explained how this racial polarization provided impetus the for the discriminatory legislation at issue in that case: vote dilution “In old District 23 the increase in Latino voter registration and overall population, the concomitant rise in Latino voting power in each successive election, the near-victory of the Latino candidate of choice in 2002, and the resulting threat to the” incumbent representative motivated the controlling party to dilute the minority vote. Id. at 428 (citation omitted). Although the Court grounded its holding on the § 2 results test, which does not require proof of 29 intentional discrimination, the Court noted that the challenged legislation bore “the mark of intentional discrimination.” Id. at 440. The LULAC Court addressed a claim of vote dilution, but its recognition that politicians to election laws context. racially polarized entrench applies voting themselves with equal through force in may motivate discriminatory the vote denial Indeed, it applies perhaps even more powerfully in cases like that at hand, where the State has restricted access to the franchise. This is so because, unlike in redistricting, where states may consider race and partisanship to a certain extent, see, e.g., Miller v. Johnson, 515 U.S. 900, 920 (1995), legislatures cannot restrict voting access on the basis of race. (Nor, we note, can legislatures restrict access to the franchise based on the desire to benefit a certain political party. See Anderson v. Celebrezze, 460 U.S. 780, 792-93 (1983).) Using race as a proxy for party may be an effective way to win an election. But intentionally targeting a particular race’s access to the franchise because its members vote for a particular party, in discriminatory purpose. a predictable manner, constitutes This is so even absent any evidence of race-based hatred and despite the obvious political dynamics. state legislature acting on such 30 a motivation engages A in intentional racial discrimination in violation of the Fourteenth Amendment and the Voting Rights Act. III. With these principles in mind, we turn to their application in the case at hand. A. Arlington Heights directs us to consider “[t]he historical background of discriminatory. the 429 decision” U.S. at challenged 267. as Examination racially of North Carolina’s history of race discrimination and recent patterns of official discrimination, combined with the racial polarization of politics in the state, seems particularly relevant in this inquiry. The district court erred in ignoring or minimizing these facts. Unquestionably, North Carolina has a long history of race discrimination particular. generally Although we and race-based recognize its vote suppression limited weight, in see Shelby Cty., 133 S. Ct. at 2628-29, North Carolina’s pre-1965 history of pernicious discrimination informs our inquiry. For “[i]t was in the South that slavery was upheld by law until uprooted by the Civil War, that the reign of Jim Crow denied African–Americans the most basic freedoms, and that state and 31 local governments worked tirelessly to disenfranchise citizens on the basis of race.” Id. at 2628. While it is of course true that “history did not end in 1965,” id., it is equally true that SL 2013-381 imposes the first meaningful restrictions on voting access since that date -- and a comprehensive set of restrictions at that. fact, and because the legislation came into Due to this being literally within days of North Carolina’s release from the preclearance requirements of the Voting Rights Act, that long-ago history bears more heavily here than it might otherwise. Failure to so recognize would risk allowing that troubled history to “pick[] up where it left off in 1965” to American voters in North Carolina. In considering Plaintiffs’ the detriment of African LWV, 769 F.3d at 242. discriminatory results claim under § 2, the district court expressly and properly recognized the State’s “shameful” history of “past discrimination.” State Conf., 2016 WL 1650774, at *83-86. But the N.C. court inexplicably failed to grapple with that history in its analysis of Plaintiffs’ discriminatory intent claim. Rather, when assessing the intent claim, the court’s analysis on the point consisted solely of the finding that “there is little evidence of official discrimination since the 1980s,” accompanied by a footnote dismissing discrimination. examples See id. at *143. 32 of more recent official That finding is clearly erroneous. The record is replete with evidence of instances since the 1980s in which the North Carolina legislature has attempted to suppress and dilute the voting rights of African Americans. In some of these instances, the Department of Justice or federal courts have determined that the North Carolina General Assembly acted with discriminatory intent, “reveal[ing] invidious purposes.” a series of official actions taken for Arlington Heights, 429 U.S. at 267. In others, the Department of Justice or courts have found that the General Assembly’s action produced discriminatory results. latter evidence, about discriminatory intent than the former, but it is informative. A historical pattern of important of course, laws producing context for proves less The discriminatory determining results whether provides the same decisionmaking body has also enacted a law with discriminatory purpose. 3923868 See, e.g., Veasey v. Abbott, No. 14-41127, 2016 WL (5th Cir. relevant, in law, letters DOJ July intentional and 20, 2016) (en discrimination previous court banc) (considering analysis cases about of voter results as ID and intent). The record reveals that, within the time period that the district court found free of “official discrimination” (1980 to 2013), the Department of Justice issued over fifty objection letters to proposed election law changes in North Carolina -33 including several since 2000 -- because the State had failed to prove the proposed changes would have no discriminatory purpose or effect. See U.S. Dep’t of Justice, Civil Rights Div., Voting Determination Letters for North Carolina (DOJ Letters) (Aug. 7, 2015), https://www.justice.gov/crt/voting-determination-letters- north-carolina; see also Regents of the Univ. of California v. Bakke, 438 U.S. 265, 305 (1978) (referring to objections of the Department of Justice under § 5 as “administrative finding[s] of discrimination”). 5 Twenty-seven of those letters objected to laws originated that either in the General Assembly or originated with local officials and were approved by the General Assembly. See DOJ Letters. 5 Most recently, the Department of Justice objected to a law the General Assembly enacted in 2011, Session Law (“SL”) 2011174. That statute changed the method of election for the school board in Pitt County, North Carolina by reducing the number of members and adding an at-large seat. See Letter from Thomas E. Perez, Assistant Att’y General, Dept. of Just., to Robert T. Sonnenberg, In-house Counsel, Pitt Cty. Sch. (Apr. 30, 2012), at 1, available at https://www.justice.gov/sites/default/files/crt/legacy/2014/05/3 0/l_120430.pdf. The Department of Justice conducted an Arlington Heights analysis and declined to preclear the retrogressive law. Id. at 1-4. Key facts in the discriminatory intent analysis included: that “[t]he county’s elections are generally racially polarized,” that “African Americans have never elected a candidate of choice to a county-wide office,” that “Pitt County has a history of challenges to at-large positions under the Voting Rights Act,” that the process for enacting the law represented “a complete departure from the normal procedures,” and that the “discriminatory effect was not necessary to achieve the stated goal” of the law. Id. at 2-4. 34 During the same period, private plaintiffs brought fiftyfive successful cases under § 2 of the Voting Rights Act. J.A. 1260; Anita S. Earls et al., Voting Rights in North Carolina: 1982-2006, 17 S. Cal. Rev. L. & Soc. Just. 577 (2008). Ten cases ended in judicial decisions finding that electoral schemes in counties and municipalities across the state had the effect of discriminating against minority voters. See, e.g., Ward v. Columbus Cty., 782 F. Supp. 1097 (E.D.N.C. 1991); Johnson v. Halifax Cty., preliminary 594 F. Supp. injunction). 161 (E.D.N.C. Forty-five 1984) cases (granting were settled favorably for plaintiffs out of court or through consent degrees that altered the challenged voting laws. See, e.g., Daniels v. Martin Cty. Bd. of Comm’rs., No. 4:89-cv-00137 (E.D.N.C. 1992); Hall v. Kennedy, No. 3:88-cv-00117 (E.D.N.C. 1989); Montgomery Cty. Branch of the NAACP v. Montgomery Cty. Bd. of Elections, No. 3:90-cv-00027 (M.D.N.C. 1990). On several occasions, the United States intervened in cases or filed suit independently. See, e.g., United States v. Anson Bd. of Educ., No. 3:93-cv00210 (W.D.N.C. 1994); United States v. Granville Cty. Bd. of Educ., No. 5:87-cv-00353 (E.D.N.C. 1989); United States v. Lenoir Cty., No. 87-105-cv-84 (E.D.N.C. 1987). And, of course, the case in which the Supreme Court announced the standard governing § 2 results claims -- Thornburg v. Gingles -- was brought by 35 a class of African American citizens in North Carolina challenging a statewide redistricting plan. 478 U.S. at 35. There the Supreme Court affirmed findings by the district court that each challenged district exhibited “racially polarized voting,” and held that “the legacy of official discrimination in voting matters, education, housing, employment, and health services . . . acted in concert with the multimember districting scheme to impair the ability” of African American political process.” voters to “participate equally in the Id. at 80. And only a few months ago (just weeks before the district court issued its opinion in the case at hand), a three-judge court addressed a redistricting plan adopted by the same General Assembly that enacted SL 2013-381. Harris v. McCrory, No. 1:13- CV-949, 2016 WL 482052, at *1-2 (M.D.N.C. Feb. 5, 2016), prob. juris. noted, __ S. Ct. __, No. 15-1262, 2016 WL 1435913 (June 27, 2016). The court held that race was the predominant motive in two drawing congressional Equal Protection Clause. districts, in violation Id. at *1-2, *17 & n.9. of the Contrary to the district court’s suggestion, see N.C. State Conf., 2016 WL 1650774, at impermissibly *143 relied n.223, a holding on race that certainly a legislature provides relevant evidence as to whether race motivated other election legislation passed by the same legislature. 36 The district court failed to take into account these cases and their important takeaway: their efforts to restrict that state officials continued in or dilute African American strength well after 1980 and up to the present day. voting Only the robust protections of § 5 and suits by private plaintiffs under § 2 of the succeeding. Voting Rights Act prevented those efforts from These cases also highlight the manner in which race and party are inexorably linked in North Carolina. This fact constitutes a critical -- perhaps the most critical -- piece of historical evidence here. The district court failed to recognize this linkage, leading it to accept “politics as usual” as a justification for many of the changes in SL 2013-381. But that cannot be accepted where politics as usual translates into race-based discrimination. As it did with the history of racial discrimination, the district court again recognized this reality when analyzing whether SL 2013-381 had a discriminatory result, but not when analyzing whether it was motivated by discriminatory intent. In its results analysis, the court noted that racially polarized voting between African Americans and whites remains prevalent in North Carolina. N.C. State Conf., 2016 WL 1650774, at *86-87. Indeed, at trial the State admitted as much. Id. at *86. one North of the State’s African-American race experts is a conceded, better 37 “in predictor As Carolina, for voting Democratic than party registration.” J.A. 21400. For example, in North Carolina, 85% of African American voters voted for John Kerry in 2004, and 95% voted for President Obama in 2008. State Conf., 2016 WL 1650774, at *86. N.C. In comparison, in those elections, only 27% of white North Carolinians voted for John Kerry, and only 35% for President Obama. Id. Thus, whether the General Assembly knew the exact numbers, it certainly likely, and knew that that African white voters American were voters unlikely, were to highly vote for Democrats. And it knew that, in recent years, African Americans had registering begun and voting in unprecedented numbers. Indeed, much of the recent success of Democratic candidates in North Carolina resulted from African American voters overcoming historical barriers and making their voices heard to a degree unmatched in modern history. Despite this, the district court took no issue with one of the legislature’s stated purposes in enacting SL 2013-381 -- to “mov[e] the law back to the way it was.” WL 1650774, at *111. N.C. State Conf., 2016 Rather, the court apparently regarded this as entirely appropriate. The court noted repeatedly that the voting mechanisms that SL 2013-381 restricts or eliminates were ratified “relatively recently,” “almost entirely along party lines,” when “Democrats controlled” the legislature; and that SL 2013-381 was similarly ratified 38 “along party lines” after “Republicans gained . . . control of both houses.” Id. at *2-7, *12. Thus, the district court apparently considered SL 2013-381 simply success an appropriate by another means party. for We one party recognize to that counter recent elections have consequences, but winning an election does not empower anyone in any party to engage in purposeful racial discrimination. When a legislature dominated by one party has dismantled barriers to African American access to the franchise, even if done to gain votes, “politics as usual” does not allow a legislature dominated by the other party to re-erect those barriers. The record evidence is clear that this is exactly what was done here. For example, the State argued before the district court that the General Assembly enacted changes to early voting laws to avoid “political gamesmanship” with respect to the hours and locations of early voting centers. J.A. 22348. As “evidence of justifications” for the changes to early voting, the State offered purported inconsistencies in voting hours across counties, including the fact that only some counties had decided to offer Sunday voting. Id. The State then elaborated on its justification, explaining that “[c]ounties with Sunday voting in 2014 were disproportionately “disproportionately Democratic.” J.A. 22348-49. black” and In response, SL 2013-381 did away with one of the two days of Sunday voting. 39 See N.C. State Conf., 2016 WL 1650774, at *15. Thus, in what comes as close to a smoking gun as we are likely to see in modern times, the State’s very justification for a challenged statute hinges explicitly on race -- specifically its concern that African Americans, who had overwhelmingly voted for Democrats, had too much access to the franchise. 6 These contextual undercurrents facts, influencing which North reveal Carolina the politics, powerful must be considered in determining why the General Assembly enacted SL 2013-381. Indeed, the law’s purpose understood without these considerations. cannot be properly The record makes clear that the historical origin of the challenged provisions in this statute is not the innocuous back-and-forth of routine partisan struggle that the State suggests and that the district court accepted. Rather, the immediate aftermath of participation in a General Assembly unprecedented state racially polarized voting. with a enacted African troubled them American racial in the voter history and The district court clearly erred in ignoring or dismissing this historical background evidence, all of which supports a finding of discriminatory intent. 6 Of course, state legislators also cannot impermissibly dilute or deny the votes of opponent political parties, see Anderson, 460 U.S. at 793 -- as this same General Assembly was found to have done earlier this year. See Raleigh Wake Citizens Ass’n v. Wake Cty. Bd. of Elections, No. 16-1270, 2016 WL 3568147 (4th Cir. July 1, 2016). 40 B. Arlington “specific Heights sequence decision.” instructs events of also leading 429 U.S. at 267. us up to to consider the the challenged In doing so, a court must consider “[d]epartures from the normal procedural sequence,” which may demonstrate “that improper purposes are playing a role.” Id. The sequential facts found by the district court are undeniably accurate. N.C. State Conf., 2016 WL 1650774, at *8-13. they are undisputed. shows that, Id. immediately And they are devastating. after Shelby County, Indeed, The record the General Assembly vastly expanded an earlier photo ID bill and rushed through the legislative process the most restrictive voting legislation seen in North Carolina since enactment of the Voting Rights Act of 1965. to draw the obvious Id. The district court erred in refusing inference that this sequence that prior of events signals discriminatory intent. The district court found to Shelby County, SL 2013-381 numbered only sixteen pages and contained none of the challenged provisions, with the exception of a much less restrictive photo ID requirement. Id. at *8, *143-44. As the court further found, this pre-Shelby County bill was afforded more than three weeks of debate in public hearings and almost three more weeks of debate in the House. Id. at *8. version of the bill, there was some bipartisan support: 41 For this “[f]ive House Democrats joined all present Republicans in voting for the voter-ID bill.” Id. The district court found that SL 2013-381 passed its first read in the Senate on April 25, 2013, where it remained in the Senate Rules Committee. Id. At that time, the Supreme Court had heard argument in Shelby County, but had issued no opinion. Id. “So,” as the district court found, “the bill sat.” Id. For the next two months, no public debates were had, no public amendments made, and no action taken on the bill. Then, on June 25, opinion in Shelby County. Chairman of the Senate 2013, the Supreme Id. at *9. Rules Court issued its The very next day, the Committee proclaimed that the legislature “would now move ahead with the full bill,” which he recognized would be “omnibus” legislation. Id. at *9. After that announcement, no further public debate or action occurred for almost a month. Id. As the district court explained, “[i]t was not until July 23 . . . that an expanded bill, including the election changes challenged in this case, was released.” Id. at *144. The new bill -- now fifty-seven pages in length -- targeted four voting and registration mechanisms, which had previously expanded access to the franchise, stringent photo ID provision. Post-Shelby County, the and provided a much more See 2013 N.C. Sess. Laws 381. change 42 in accepted photo IDs is of particular note: the new ID provision retained only those types of photo ID disproportionately held by whites and excluded those disproportionately held by African Americans. 2016 WL 1650774, at *37, *142. N.C. State Conf., The district court specifically found that “the removal of public assistance IDs” in particular was “suspect,” because “a reasonable legislator [would be] aware of the socioeconomic disparities endured by African Americans [and] could have surmised that African Americans would be more likely to possess this form of ID.” Id. at *142. Moreover, after the General Assembly finally revealed the expanded SL 2013-381 to the public, the legislature rushed it through the legislative process. The new SL through the General Assembly in three days: 2013-381 moved one day for a public hearing, two days in the Senate, and two hours in the House. Id. at *9-12. The House Democrats who supported the pre-Shelby County bill now opposed it. voted on concurrence in the Senate’s sending the bill to a committee. Id. at *12. version, Id. at *12. The House rather than This meant that the House had no opportunity to offer its own amendments before the up-or-down vote on the legislation; that vote proceeded on strict party lines. 43.3, 44. Id.; see J.A. 1299; N.C. H.R. Rules 43.2, The Governor, of the same party as the proponents of the bill, then signed the bill into law. WL 1650774, at *13. N.C. State Conf., 2016 This hurried pace, of course, strongly 43 suggests an attempt to avoid in-depth scrutiny. See, e.g., Veasey, 2016 WL 3923868, at *12 (noting as suspicious voter ID law’s “three-day passage through the Senate”). this legislature -- nor, as far as we can Indeed, neither tell, any other legislature in the Country -- has ever done so much, so fast, to restrict access to the franchise. The district court erred in accepting the State’s efforts to cast this suspicious narrative in an innocuous light. so, the court acknowledging court focused the on whole specifically certain picture. found the minor For facts example, above facts, To do instead of although it the dismissed Plaintiffs’ argument that this sequence of events demonstrated unusual legislative speed because the legislature “acted within all [of its] procedural rules.” N.C. State Conf., 2016 WL 1650774, at *145. But, of course, a legislature need not break its engage own rules to in unusual procedures. Even just compared to the process afforded the pre-Shelby County bill, the process for the “full bill” was, to say the very least, abrupt. Similarly, the district court accused Plaintiffs of “ignor[ing] the extensive debate and consideration the initial voter-ID bill received in the spring.” Id. at *146. But because the pre-Shelby County bill did not contain any of the provisions challenged here, that debate hardly seems probative. The district court also quoted one senator who opposed the new 44 “full bill” as saying thorough debate.” that the legislators Id. at *12, *145. had “a good and We note, however, that many more legislators expressed dismay at the rushed process. Id. at *145. Indeed, as the court itself noted, “[s]everal Democratic senators characterized the bill as voter suppression of minorities. at *12 Others characterized the bill as partisan.” (citations omitted). Republican senators Id. “strongly denied such claims,” while at the same time linking the bill to partisan goals: that “the bill reversed past practices that Democrats passed to favor themselves.” Id. Finally, the district court dismissed the expanded law’s proximity to the Shelby County decision as above suspicion. Court found that the General Assembly “would not have The been unreasonable” to wait until after Shelby County to consider the “full bill” because it could have concluded that the provisions of the “full bill” were “simply not worth the administrative and financial cost” of preclearance. to avoid the hassle of the Id. at *144. preclearance Although desire process could, in another case, justify a decision to await the outcome in Shelby County, that inference is not persuasive in this case. For here, the General Assembly did not simply wait to enact changes to its election laws that might require the administrative hassle of, but likely would pass, preclearance. Rather, after Shelby County it moved forward with what it acknowledged was an 45 omnibus bill that restricted voting mechanisms it knew were used disproportionately by African Americans, id. at *148, and so likely would not have passed preclearance. And, after Shelby County, the legislature substantially changed the one provision that it had fully debated before. As noted above, the General Assembly completely revised the list of acceptable photo IDs, removing from the list the IDs held disproportionately by African Americans, but retaining those disproportionately held by whites. Id. at *37, *142. This fact alone undermines the possibility that the post-Shelby County timing was merely to avoid the administrative costs. Instead, this sequence of events -- the General Assembly’s eagerness to, issuance, at rush the through historic the moment of legislative Shelby process County’s the most restrictive voting law North Carolina has seen since the era of Jim Crow -- bespeaks a certain purpose. Although this factor, as with the other Arlington Heights factors, is not dispositive on its own, it provides another compelling piece of the puzzle of the General Assembly’s motivation. C. Arlington history Heights leading to a also recognizes challenged that provision the “may legislative be highly relevant, especially where there are contemporaneous statements by members of the decisionmaking body, minutes of its meetings, 46 or reports.” 429 U.S. at 268. Above, we have discussed much of what can be gleaned from the legislative history of SL 2013-381 in the sequence of events leading up to its enactment. No minutes of meetings about SL 2013-381 exist. And, as the Supreme Court has recognized, testimony as to the purpose of challenged legislation [legislative] privilege.” “frequently Id. will be barred That is the case here. State Conf., 2016 WL 1650774, at *71 n.124. by See N.C. The district court was correct to note that statements from only a few legislators, or those made by legislators after the fact, are of limited value. See id. at 146; Barber v. Thomas, 560 U.S. 474, 485-86 (2010); Hunter, 471 U.S. at 228. 7 7 Some of the statements by those supporting the legislation included a Republican precinct chairman who testified before the House Rules Committee that the photo ID requirement would “disenfranchise some of [Democrats’] special voting blocks [sic],” and that “that within itself is the reason for the photo voter ID, period, end of discussion.” See J.A. 1313-14; Yelton testimony, Transcript of Public Hearing of the North Carolina General Assembly, House Elections Committee (Apr. 10, 2013) at 51. Responding to the outcry over the law after its enactment, the same witness later said publicly: “If [SL 2013-381] hurts the whites so be it. If it hurts a bunch of lazy blacks that want the government to give them everything, so be it.” See J.A. 1313-14; Joe Coscarelli, Don Yelton, GOP Precinct Chair, Delivers Most Baldly Racist Daily Show Interview of All Time, New York Magazine, Oct. 24, 2013. These statements do not prove that any member of the General Assembly necessarily acted with discriminatory intent. But the sheer outrageousness of these public statements by a party leader does provide some evidence of the racial and partisan political environment in which the General Assembly enacted the law. 47 We do find worthy of discussion, however, the General Assembly’s requests for and use of race data in connection with SL 2013-381. As explained in detail above, prior to and during the limited debate on the expanded omnibus bill, members of the General Assembly requested and received a breakdown by race of DMV-issued ID ownership, absentee voting, early voting, same-day registration, and precinct voting). provisional voting (which includes out-of- N.C. State Conf., 2016 WL 1650774, at *136- 38, *148; J.A. 1628-29, 1637, 1640-41, 1782-97, 3084-3119. This data revealed that African Americans disproportionately used early voting, same-day registration, and out-of-precinct voting, and disproportionately lacked DMV-issued ID. N.C. State Conf., 2016 WL 1650774, at *148; J.A. 1782-97, 3084-3119. Not only that, it also revealed that African Americans did not disproportionately use absentee voting; whites did. all J.A. 1796-97, 3744-47. of these other forms SL 2013-381 drastically restricted of access to the franchise, but exempted absentee voting from the photo ID requirement. In sum, relying enacted on legislation this racial restricting data, all the -- General and only disproportionately used by African Americans. against the unpersuasive non-racial Assembly -- practices When juxtaposed explanations the State proffered for the specific choices it made, discussed in more 48 detail below, we cannot ignore the choices the General Assembly made with this data in hand. D. Finally, Arlington Heights instructs that courts also consider the “impact of the official action” -- that is, whether “it bears more heavily on one race than another.” 266 (internal quotation marks omitted). The 429 U.S. at district court expressly found that “African Americans disproportionately used” the removed voting mechanisms and disproportionately lacked DMVissued photo ID. *136. N.C. State Conf., 2016 WL 1650774, at *37, Nevertheless, “disproportionate[] use[]” the court did not finding of discriminatory purpose.” the court clearly erred. concluded that “significantly Id. at *143. Apparently, the this favor a In doing so, district court believed that the disproportionate impact of the new legislation “depends on the legislation. options Id. at *136. remaining” after enactment of the Arlington Heights requires nothing of the kind. The Arlington Heights Court recognized that “[t]he impact of [a governmental] decision” not to rezone for low-income housing “bear[s] more heavily on racial minorities.” at 269. In concluding that the zoning decision 429 U.S. had a disproportionate impact, the Court explained that “[m]inorities constitute[d] 18% of the Chicago area population, and 40% of the 49 income groups said to be eligible for” the low-income housing. Id. The Court did not require those minority plaintiffs to show that the Chicago area as a whole lacked low-income housing or that the plaintiffs had no other housing options. Instead, it was sufficient that the zoning decision excluded them from a particular area. Id. at 260, 265-66, 269; see also City of Memphis v. Greene, 451 U.S. 100, 110, 126 (1981) (indicating that closing a street used primarily by African Americans had a disproportionate impact, even though “the extent of the inconvenience [was] not great”). Thus, impact the required standard too much discrimination claim. motivated by the district in the court context used of an discriminatory 242. measure intentional When plaintiffs contend that a law was intent, proof of disproportionate impact is not “the sole touchstone” of the claim. U.S. at to Rather, plaintiffs asserting such Davis, 426 claims must offer other evidence that establishes discriminatory intent in the totality of the circumstances. disproportionate suffices to impact, establish even one of if the Id. at 239-42. not Showing overwhelming circumstances impact, evidencing discriminatory intent. 8 8 Interpreting Arlington Heights to require a more onerous impact showing would eliminate the distinction between discriminatory results claims under § 2 of the Voting Rights Act (Continued) 50 Accordingly, Americans the district disproportionately court’s used findings each that the of African removed mechanisms, as well as disproportionately lacked the photo ID required by SL 2013-381, if supported by the evidence, establishes sufficient disproportionate impact for an Arlington Heights analysis. As outlined above, the record evidence provides abundant support for that holding. Moreover, the district court also clearly erred in finding that the cumulative impact of the challenged provisions of SL 2013-381 does not bear more heavily on African Americans. See Clingman v. Beaver, 544 U.S. 581, 607-08 (2005) (O’Connor, J., concurring) defensible combined (“A when effect competition.”). panoply considered of of alone, severely For regulations, may the apparently nevertheless restricting example, each have the participation and photo ID requirement inevitably increases the steps required to vote, and so slows the process. The early voting provision reduced the number of days in which citizens can vote, resulting in more voters voting and discriminatory intent claims under § 2 and the Constitution. When plaintiffs contend that a law has a discriminatory result under § 2, they need prove only impact. In that context, of course plaintiffs must make a greater showing of disproportionate impact. Otherwise, plaintiffs could prevail in any and every case in which they proved any impact. 51 on Election Day. 9 polls on Together, these produce longer lines at the Election Day, and absent out-of-precinct voting, prospective Election Day voters may wait in these longer lines only to discover that they have gone to the wrong precinct and are unable to cumulatively, travel the to panoply disenfranchisement their of correct restrictions than any of court the discounted precincts. results law’s Thus, in greater provisions individually. The district provisions burden African the Americans, claim citing the that fact these that similar election laws exist or have survived challenges in other states. *139 See, e.g., N.C. State Conf., 2016 WL 1650774, at *45, (photo ID), registration), (preregistration). *46 *66 (early voting), (out-of-precinct But the sheer 9 number *57 (same-day voting), of *69 restrictive The State unpersuasively contends that SL 2013-381’s “same hours” provision leaves the opportunity to vote early “materially the same as the early voting opportunities before the bill was enacted,” despite the reduction in early voting days. State Br. 51 (internal quotation marks omitted). The same hours provision requires counties to offer the same number of aggregate hours of early voting in midterm and presidential elections as they did in the comparable 2010 midterm or 2012 presidential elections. N.C. State Conf., 2016 WL 1650774, at *11. A critical problem with the State’s argument is that the law provided that any county could waive out of this requirement, and, in 2014, about 30% of the counties did waive out of the requirement. See J.A. 9541-44. Moreover, longer lines during the reduced number of days in which citizens can vote would necessitate opening new polling sites and placing them in high-demand locations; the law does not require either. 52 provisions in SL 2013-381 distinguishes this case from others. See, e.g., Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 185 (2008) (challenging only a photo ID requirement); Hunter, 471 U.S. at 223 disenfranchisement (challenging law); only Veasey, a felon 2016 WL (challenging only a photo ID requirement). and misdemeanant 3923868, at *1 Moreover, removing voting tools that have been disproportionately used by African Americans meaningfully differs from not initially implementing such tools. Cf. Harper v. Va. Bd. of Elections, 383 U.S. 663, 665 (1966) (“[O]nce the franchise is granted to the electorate, lines may not be drawn which are inconsistent with the Equal Protection Clause of the Fourteenth Amendment.”). The district court also erred in suggesting that Plaintiffs had to prove that the challenged provisions prevented African Americans from voting at the same levels they had in the past. No law implicated here -- neither the Fourteenth Amendment nor § 2 -- requires such an onerous showing. Emblematic of this error is the almost dispositive weight the court gave to the fact that African American aggregate turnout increased by 1.8% in the 2014 midterm election as compared to the 2010 midterm election. *132. See N.C. State Conf., 2016 WL 1650774, at *18, *122, In addition to being beyond the scope of disproportionate impact analysis under Arlington Heights, several factors counsel against such an inference. 53 First, as the Supreme Court has explained, courts should not place much evidentiary weight on any one election. See Gingles, 478 U.S. at 74-77 (noting that the results of multiple elections are more probative election, particularly one than held the during result of pending This is especially true for midterm elections. a single litigation). As the State’s own expert testified, fewer citizens vote in midterm elections, and those that do are more likely to be better educated, repeat voters with greater economic resources. J.A. 23801-02; cf. League of Women Voters of North Carolina, 135 S. Ct. at 6-7 (Ginsburg, J., dissenting) (noting that midterm primary elections are “highly sensitive to factors likely to vary from election to election,” more so than presidential elections). Moreover, increased by uncounted. although 1.8% As in the disproportionately aggregate 2014, many district cast African African court provisional American American found, out-of-precinct State Conf., 2016 WL 1650774, at *63. Americans what were would disenfranchised have been the went Americans ballots, See N.C. And thousands of African because same-day votes African which would have been counted absent SL 2013-381. turnout they registered registration because of SL 2013-381 could not then vote. during period but See id. at *67. Furthermore, the district court failed to acknowledge that a 1.8% increase in voting actually 54 represents a significant decrease in the rate of change. For example, in the prior four- year period, African American midterm voting had increased by 12.2%. J.A. 1197. In sum, while the district court recognized the undisputed facts as to the impact of the challenged provisions of SL 2013381, it simply refused to acknowledge their import. The court concluded its analysis by remarking that these provisions simply eliminated a system “preferred” by African Americans as “more convenient.” N.C. State Conf., 2016 WL 1650774, at *170. But as the court itself found elsewhere in its opinion, “African Americans . . . in North Carolina are disproportionately likely to move, be poor, less educated, have transportation, and experience poor health.” These “preference” socioeconomic led disparities African Americans less to Id. at *89. establish to access that no mere disproportionately use early voting, same-day registration, out-of-precinct voting, and preregistration. Nor does preference lead African Americans to disproportionately lack acceptable photo ID. Yet the district court refused to make the inference that undeniably flows from the disparities it Carolina experienced. found many African Americans in North Registration and voting tools may be a simple “preference” for many white North Carolinians, but for many African Americans, they are a necessity. 55 E. In sum, assessment of the Arlington Heights factors requires the conclusion that, at least in part, discriminatory racial intent motivated provisions in SL 2013-381. holding otherwise. the enactment of the challenged The district court clearly erred in In large part, this error resulted from the court’s consideration of each piece of evidence in a vacuum, rather than engaging in the totality analysis required by Arlington Heights. evidence can seem innocuous when of the circumstances Any individual piece of viewed alone, but gains an entirely different meaning when considered in context. Our conclusion does not mean, and we do not suggest, that any member of the General Assembly harbored racial hatred or animosity toward any minority group. circumstances discrimination; -the North surge But the totality of the Carolina’s in African history American of voting voting; the legislature’s knowledge that African Americans voting translated into support for one party; and the swift elimination of the tools African Americans had used to vote and imposition of a new barrier at the first opportunity to do so -- cumulatively and unmistakably reveal that the General Assembly used SL 2013-381 to entrench itself. It did so by targeting voters who, based on race, were unlikely to vote for the majority party. Even if done for partisan ends, that constituted racial discrimination. 56 IV. Because Plaintiffs have established race as a factor that motivated enactment of the challenged provisions of SL 2013-381, the burden now “shifts to the law’s defenders to demonstrate that the law would have been enacted without this factor.” Hunter, 471 U.S. at 228; Arlington Heights, 429 U.S. at 271 n.21. 10 Once the burden shifts, a court must carefully scrutinize a state’s non-racial motivations to determine whether they alone can explain enactment of Arlington Heights, 429 U.S. at 265-66. to the legislature’s justified.” A a challenged law. “[J]udicial deference” justifications “is no longer been enacted Id. court without stated the assesses racially whether a law discriminatory would motive have by considering the substantiality of the state’s proffered non-racial interest and how well the law furthers that interest. See Hunter, 471 U.S. at 228-33; see also Mhany Mgmt., Inc. v. Cty. of Nassau, 819 F.3d 581, 614 (2d Cir. 2016) (considering “whether [non-racial] concerns were sufficiently strong 10 to cancel out any We note that at least one of our sister circuits has rejected the second step of this inquiry as inappropriate for intent claims under § 2. See Askew v. City of Rome, 127 F.3d 1355, 1373 (11th Cir. 1997) (“[I]t is not a defense under the Voting Rights Act that the same action would have been taken regardless of the racial motive.”). 57 discriminatory animus” after shifting the burden under Arlington Heights in a Fair Housing Act claim). Given a state’s interest in the fair administration of its elections, a rational justification can be imagined for many election laws, including some of the challenged provisions here. But a court must be mindful of the number, character, and scope of the modifications enacted together in a single challenged law like SL 2013-381. Only then can a court determine whether a legislature would have enacted that law regardless of its impact on African American voters. In this case, despite finding that race was not a motivating factor for enactment of the challenged provisions of SL 2013-381, the district court addressed justifications for each provision at length. 2016 WL 1650774, at *96-116, *147. through found a the State’s N.C. State Conf., The court did so, however, rational-basis-like lens. General decision Assembly’s the For to example, the eliminate court same-day registration “not unreasonable,” and found “at least plausible” the reasons offered for excluding student IDs from the list of qualifying IDs. that legislative Id. at *108, *142. justifications But, of course, a finding are “plausible” and “not unreasonable” is a far cry from a finding that a particular law would have been enacted without considerations of race. As the Supreme Court has made clear, such deference in that inquiry is 58 wholly inappropriate. (explaining that See Arlington Heights, 429 U.S. at 265-66 because “racial discrimination is not just another competing consideration,” a court must do much more than review for “arbitrariness or irrationality”). Accordingly, the ultimate findings of the district court regarding the compelling nature of the State’s interests are clearly erroneous. Typically, that fact would recommend remand. But we need not remand where the record provides “a complete understanding” of the merits, Tejada v. Dugger, 941 F.2d 1551, 1555 (11th Cir. 1991) (internal quotation marks omitted), and “permits only one resolution of the factual issue,” PullmanStandard, 456 U.S. at 292. See also Withrow v. Larkin, 421 U.S. 35, 45 (1975) (declining to remand where Court “doubt[ed] that such action . . . would determination of the merits”). add anything essential to the After a total of four weeks of trial, the district court entered a 479-page order based on more than 25,000 pages WL 1650774, at *2. of evidence. N.C. State Conf., 2016 Although the court erred with respect to the appropriate degree of deference due to the State’s proffered justifications, that error affected only its ultimate finding regarding their persuasive weight; it did not affect the court’s extensive foundational findings regarding those justifications. These foundational findings as to justifications for SL 2013-381 provide a more than sufficient basis for our review of 59 that law. For we are satisfied that this record is “complete,” indeed as “complete” as could ever reasonably be expected, and that remand would accomplish little. see Withrow, 421 U.S. at 45. Tejada, 941 F.2d at 1555; And, after painstaking review of the record, we must also conclude that it “permits only one resolution of the factual issue.” 292. Pullman-Standard, 456 U.S. at The record evidence plainly establishes race as a “but- for” cause of SL 2013-381. See Hunter, 471 U.S. at 232. In enacting the photo ID requirement, the General Assembly stated that it sought to combat voter fraud and promote public confidence in the electoral system. See 2013 N.C. Sess. Laws 381. the These interests echo those Crawford justified a photo ID requirement in Indiana. 97. The reliance State is relies misplaced heavily because of on that the Court held 553 U.S. at 194- holding. fundamental But that differences between Crawford and this case. The challengers in Crawford did not even allege intentional race discrimination. Rather, they mounted a facial attack on a photo ID requirement as unduly burdensome on the right to vote generally. The Crawford Court conducted an “Anderson-Burdick” analysis, balancing the burden of a law on voters against the state’s interests, and concluded that the photo ID requirement “impose[d] only a limited burden on voters’ rights.” Crawford, 553 U.S. at 202-03 (internal quotation marks omitted). 60 Given that limited burden, legislature’s interests. choice the of Court how to deferred best to serve the its Indiana legitimate See id. at 194-97, 203. That deference does not apply here because the evidence in this case establishes that, at least in part, race motivated the North Carolina legislature. Thus, we do not ask whether the State has an interest in preventing voter fraud -- it does -- or whether a photo ID requirement constitutes one way to serve that interest -- it may -- but whether the legislature would have enacted SL 2013-381’s photo ID requirement if it disproportionate impact on African American voters. had no The record evidence establishes that it would not have. The photo ID requirement here is both too restrictive and not restrictive enough to effectively prevent voter fraud; “[i]t is at once too narrow and too broad.” Romer v. Evans, 517 U.S. 620, U.S. 633 (1996); see Anderson, 460 at 805 election law as “both too broad and too narrow”). (rejecting First, the photo ID requirement, which applies only to in-person voting and not to absentee voting, is too narrow to combat fraud. On the one single hand, the State has failed to identify even a individual who has ever been charged with committing in-person voter fraud in North Carolina. See J.A. 6802. On the other, the General Assembly did have evidence of alleged cases of mailin absentee voter fraud. J.A. 61 1678, 6802. Notably, the legislature also had disproportionately evidence used by that African absentee voting Americans; disproportionately used absentee voting. was indeed, not whites J.A. 1796-97. The General Assembly then exempted absentee voting from the photo ID requirement. 2013 N.C. Sess. Laws 381, pt. 4. This was so even though members of the General Assembly had proposed amendments to require photo ID for absentee voting, N.C. Gen. Assemb. Proposed Amend. No. A2, H589-AST-50 [v.2] (April 24, 2013), and the bipartisan State Board of Elections 11 specifically requested that the General Assembly remedy the potential for mail-in absentee voter fraud and expressed no concern about in-person voter fraud, J.A. 1678. The seemingly photo ID requirement irrational combating fraud. is restrictions also too unrelated broad, to the enacting goal of This overbreadth is most stark in the General Assembly’s decision to exclude as acceptable identification all forms of Americans. state-issued ID disproportionately held by African See N.C. State Conf., 2016 WL 1650774, at *142. The State has offered little evidence justifying these exclusions. 11 The North Carolina State Board of Elections is the state agency responsible for administering the elections process and overseeing campaign finance disclosure. N.C. Gen. Stat. § 16319 (2016); see also About Us, North Carolina State Board of Elections, http://www.ncsbe.gov/about-us (last visited July 25, 2016). The Board is composed of five members appointed by the Governor, three of which belong to the same party as the Governor. See N.C. Gen. Stat § 163-19. 62 Review of the record further undermines the contention that the exclusions are tied to concerns of voter fraud. because voters who lack qualifying ID under This is so SL 2013-381 may apply for a free voter card using two of the very same forms of ID excluded by the law. at *26. See N.C. State Conf., 2016 WL 1650774, Thus, forms of state-issued IDs the General Assembly deemed insufficient to prove a voter’s identity on Election Day are sufficient if shown during a separate process to a separate state official. function, In this way, SL 2013-381 elevates form over creating hoops through which certain citizens must jump with little discernable gain in deterrence of voter fraud. 12 The State’s proffered justifications regarding restrictions on early voting similarly fail. The State contends that one purpose of SL 2013-381’s reduction in early voting days was to correct inconsistencies among hours of early voting centers. counties put some consistency into the locations J.A. 3325; 22348-50. J.A. 3325 (senator supporting the law: is in the 12 and See, e.g., “what we’re trying to do process and allow for the Tellingly, as discussed above, it was only after Shelby County that the General Assembly removed these IDs, retaining as acceptable ID only those disproportionately held by whites. N.C. State Conf., 2016 WL 1650774, at *142. Further, the General Assembly had before it recommendations from the State Board of Elections that the law include some of the excluded IDs. J.A. 6866, 7392. Thus, the record evidence indicates that the General Assembly’s decision in the wake of Shelby County to exclude certain IDs had less to do with combating fraud, and more to do with the race of the ID holders. 63 facilities to be similarly treated in one county as in being [sic] all the counties”). In some minor ways, SL 2013-381 does achieve consistency in the availability of early voting within each county. See N.C. Gen. Stat. § 163-227.2(g) (mandating the same days and hours within counties). But the record does not offer support for the view that SL 2013-381 actually achieved consistency in early voting among the various counties. meant to For example, while the State contends that it eliminate inconsistencies between counties in the availability of Sunday early voting, see, e.g., J.A. 12997-98; 20943-44; 22348-49, SL 2013-381 offers no fix for that. Rather, it permits the Board of Elections of each county to determine, in the Board’s discretion, during early voting. whether to provide Sunday hours See J.A. 3325 (senator supporting the law: “[the law] still leaves the county the choice of opening on a Sunday or not opening on Sunday”); cf. N.C. Gen. Stat. § 163227.2(f) (“A county board may conduct [early voting] evenings or on weekends . . . .” (emphasis added)). as discussed above, the State explicitly and during Moreover, problematically linked these “inconsistencies” in Sunday early voting to race and party. J.A. 22348-49. In other ways, the challenged provision actually promotes inconsistency in the availability of early voting across North Carolina. SL 2013-381 mandates that County Boards of Elections 64 offer at least the same number of aggregate hours of early voting as offered in 2010 for future non-presidential elections and as offered in 2012 for future presidential elections. N.C. Gen. Stat. § 163-227.2(g2). See If, as the State asserts, the 2010 and 2012 elections saw great disparities in voting hours across county lines, inconsistencies by SL 2013-381 requiring those in effect same codifies those county-specific hours for all future elections. Moreover, availability in of its quest voting, early for the “consistency” General in Assembly the again disregarded the recommendations of the State Board of Elections. The Board counseled that, although reducing the number of days of early turnout mean voting might elections, that “North accommodated.” ease doing administrative so for Carolina J.A. 1700. burdens high-turnout voters’ needs for lower elections would will not be The Board explained that reducing early voting days would mean that “traffic will be increased on Election Day, increasing demands for personnel, voting equipment and other supplies, and resulting in likely increases to the cost of elections.” J.A. 1700; see also J.A. 1870-72 (reducing early voting days, according to one County Board of Elections, would lead to “increased costs, longer lines, increased wait times, understaffed sites, staff burn-out leading to mistakes, 65 and inadequate polling places; or, in a worst case scenario, all of these problems together”). Concerning same-day registration, the State justifies its elimination as a means to avoid administrative burdens that arise when verifying the addresses of those who register at the very end of the early voting period. Even so, the complete These concerns are real. elimination of same-day registration hardly constitutes a remedy carefully drawn to accomplish the State’s objectives. alternative The proposals that General would Assembly have remedied without abolishing the popular program. The State Board registration of Elections a success.” “was had had before the it problem J.A. 1533-34; 6827-28. reported J.A. that 1529. same-day The Board acknowledged some of the conflicts between same-day registration and mail verification, J.A. 1533-34, but clarified that “same day registration does not result in the registration of voters who are any less qualified or eligible to vote than” traditional registrants, mailings J.A. were registration,” 6826, not J.A. and caused that by 6827. “undeliverable the Indeed, nature over verification of 97% registrants passed the mail verification process. same of day same-day J.A. 6826. The State Board of Elections believed this number would have been higher had some counties not delayed the mail verification process in violation of the law. 66 J.A. 6826-28. Again, the General Assembly ignored this advice. In other circumstances we would defer to the prerogative of a legislature to choose among competing policy proposals. context of mechanisms SL 2013-381’s multiple disproportionately used But, in the broader restrictions by African on voting Americans, we conclude that the General Assembly would not have eliminated same-day registration entirely but-for its disproportionate impact on African Americans. Turning to the elimination of out-of-precinct voting, the State initially contended that the provision was justified to “move[] the law back to the way it was”; i.e., the way it was before it was broadened to facilitate greater participation in the franchise by minority voters. J.A. 3307. Recognizing the weakness of that justification, during the litigation of this case, the State asserted that the General Assembly abolished out-of-precinct conduct 22328. voting elections in to a “permit[] timely and election efficient officials manner.” to J.A. Such post hoc rationalizations during litigation provide little evidence as to the actual motivations of the legislature. See Miss. Univ. for Women, 458 U.S. at 730 (analyzing whether the State’s recited justification was “the actual purpose” (emphasis added)); United States v. Virginia, 518 U.S. 515, 533 (1996) (“The justification must be genuine, not hypothesized or invented post hoc in response to litigation.”). 67 Finally, the General Assembly’s elimination of preregistration provides yet another troubling mismatch with its proffered justifications. General Assembly solution. Here, the record makes clear that the contrived a problem in order to impose a According to the State, the preregistration system was too confusing for young voters. SL 2013-381 thus sought, in the words of a sponsor of the law, to “offer some clarity and some certainty as to when” a “young person is eligible to vote,” by eliminating preregistration altogether. J.A. 3317. 13 But, as the district court itself noted, that explanation does not hold water. The court found that “pre-registration’s removal ma[d]e registration more complex” and prone to confusion. [] N.C. State Conf., 2016 WL 1650774, at *116 (emphasis added). In sum, the array of electoral “reforms” the General Assembly pursued in SL 2013-381 were not tailored to achieve its purported justifications, a number of which were in all events insubstantial. In many ways, the challenged provisions in SL 2013-381 constitute solutions in search of a problem. The only clear factor linking these various “reforms” is their impact on 13 Strangely, the main evidence regarding this asserted confusion appears to be a single senator’s testimony regarding the experience of his high-school-aged son. See J.A. 3317 (senator indicating his son was confused about when to vote with pre-registration). But even that testimony does not coherently identify the problem that the law sought to remedy. See J.A. 3335 (same senator indicating his son was not confused about when to vote under pre-SL 2013-381 law). 68 African American voters. The record thus makes obvious that the “problem” the majority in the General Assembly sought to remedy was emerging support for the minority party. restricting the ways African effective way to do so. Americans vote Identifying and was an easy and We therefore must conclude that race constituted a but-for cause of SL 2013-381, in violation of the Constitutional and statutory prohibitions on intentional discrimination. V. As relief in this case, Plaintiffs ask that we declare the challenged violative provisions of § 2 of in SL the 2013-381 Voting permanently enjoin each provision. unconstitutional Rights Act, and that and we They further ask that we exercise our authority pursuant to § 3 of the Voting Rights Act to authorize federal poll observers and place North Carolina under preclearance. These requests raise issues of severability and the proper scope of any equitable remedy. We address each in turn. A. When discriminatory intent impermissibly motivates the passage of a law, a court may remedy the injury -- the impact of the legislation -- by invalidating the law. See, e.g., Hunter, 471 U.S. at 231; Anderson, 375 U.S. at 400-04. 69 If a court finds only part of the law unconstitutional, it may sever the offending provision and leave the inoffensive portion of the law intact. Leavitt v. Jane L., 518 U.S. 137, 139-40 (1996). law governs our severability analysis. Id. State In North Carolina, severability turns on whether the legislature intended that the law be severable, Pope v. Easley, 556 S.E.2d 265, 268 (N.C. 2001), and whether provisions are “so interrelated and mutually dependent” on others that they “cannot be enforced without reference to another,” Fulton Corp. v. Faulkner, 481 S.E.2d 8, 9 (N.C. 1997). We have held that discriminatory intent motivated only the enactment of the challenged provisions of SL 2013-381. As an omnibus bill, SL 2013-381 contains many other provisions not subject to challenge here. We sever the challenged provisions from the remainder of the law because it contains a severability clause, see 2013 N.C. Sess. Laws 381 § 60.1, to which we defer under North Carolina law. the remainder challenged of the Pope, 556 S.E.2d at 268. law provisions. “can[] Fulton be enforced Corp., 481 Further, without” S.E.2d at the 9. Therefore, we enjoin only the challenged provisions of SL 2013381 regarding photo ID, early voting, same-day out-of-precinct voting, and preregistration. 70 registration, WYNN, Circuit Judge, with whom FLOYD, writing for the court as to Part V.B.: Circuit Judge, joins, B. As to the appropriate remedy for the challenged provisions, “once a plaintiff constitutional or has established statutory right in the the violation civil of rights a area, . . . court[s] ha[ve] broad and flexible equitable powers to fashion a remedy that will fully correct past wrongs.” Smith v. Town of Clarkton, 682 F.2d 1055, 1068 (4th Cir. 1982); see Green v. Cty. Sch. Bd., 391 U.S. 430, 437–39 (1968) (explaining that once a court rules that an official act purposefully discriminates, the “racial discrimination [must] be eliminated root and branch”). In other words, courts are tasked with shaping “[a] remedial decree . . . to place persons” who have been harmed by an unconstitutional provision “in ‘the position they would have occupied in the absence of [discrimination].’” Virginia, 518 U.S. at 547 (last alteration in original) (quoting Milliken v. Bradley, 433 U.S. 267, 280 (1977)). The Supreme Court has established that official actions motivated by discriminatory intent “ha[ve] no legitimacy at all under our Constitution or under the [Voting Rights Act].” of Richmond v. United States, 422 U.S. 358, 378 (1975). the proper discriminatory remedy intent for is a legal provision invalidation. 71 See enacted id. at City Thus, with 378–79 (“[Official actions] animated by [a discriminatory] purpose have no credentials whatsoever; for [a]cts generally lawful may become unlawful when done to accomplish an unlawful end.” (last alteration in original) (internal quotation marks omitted)); see also Hunter, 471 U.S. at 229, 231–33 (affirming the invalidation of a state constitutional provision because it was adopted with the intent of disenfranchising African Americans); Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457, 466, 470–71, 487 (1982) (affirming a permanent injunction of a state initiative that was motivated by a racially discriminatory purpose); Anderson, 375 U.S. at 403–04 (indicating that the purposefully discriminatory use of race in a challenged law was “sufficient to make it invalid”). Notably, the Supreme Court has invalidated a state constitutional provision enacted with discriminatory intent even when its “more blatantly discriminatory” portions had since been removed. Hunter, 471 U.S. at 232–33. Moreover, the fact that the General Assembly later amended one of the challenged provisions does not change our conclusion that invalidation of each provision is the appropriate remedy in this case. Specifically, in 2015, the General Assembly enacted SL 2015-103, which amended the photo ID requirement and added the reasonable impediment exception. See 2015 N.C. Sess. Laws 103 § 8 (codified at N.C. Gen. Stat. §§ 163-82.8, 163-166.13, 163-166.15, 163-182.1B, 163-227.2). 72 Our dissenting colleague contends that even though Assembly we unconstitutionally all enacted agree that 1) the photo the ID General requirement with racially discriminatory intent, and 2) the remedy for an unconstitutional law must completely cure the harm wrought by the prior consider law, we whether should the remand reasonable for the district impediment court exception rendered our injunction of that provision unnecessary. to has But, even if the State were able to demonstrate that the amendment lessens the discriminatory effect of the photo ID requirement, it would not relieve us of our obligation to grant a complete remedy in this case. the challenged That remedy must reflect our finding that provisions were motivated by an impermissible discriminatory intent and must ensure that those provisions do not impose any lingering burden on African American voters. We cannot discern any basis upon which this record reflects that the reasonable impediment exception amendment fully cures the harm from the photo ID provision. Thus, remand is not necessary. While remedies short of invalidation may be appropriate if a provision violates the Voting Rights Act only because of its discriminatory effect, laws passed with inflict a broader injury and cannot stand. discriminatory intent See Veasey, 2016 WL 3923868, at *36, *36 n.66 (distinguishing between the proper remedy for a law enacted with a racially discriminatory purpose 73 and the more flexible range of remedies that should be considered if the law has only a discriminatory effect). Here, exception the amendment does requirement. not creating invalidate the or reasonable repeal impediment the photo ID It therefore falls short of the remedy that the Supreme Court has consistently applied in cases of this nature. Significantly, the burden rests on the State to prove that its proposed remedy completely cures the harm in this case. Virginia, 518 U.S. at 547 (noting that the defendant See “was obliged to show that its remedial proposal ‘directly address[ed] and relate[d] to’ the violation” (alterations in original) (quoting Milliken, 433 U.S. at 282)); Green, 391 U.S. at 439 (placing the burden on the defendant to prove that its plan would effectively cure the violation). Here, nothing in this record shows that the reasonable impediment exception ensures that the photo ID law no longer imposes any lingering burden on African American voters. To the contrary, the record establishes that the reasonable impediment exception amendment does not so fundamentally alter the photo ID requirement as to eradicate its impact or otherwise “eliminate the taint from a law that was originally enacted with discriminatory intent.” Johnson v. Governor of Fla., 405 F.3d 1214, 1223 (11th Cir. 2005) (en banc). 74 For example, the record shows that under the reasonable impediment exception, if an in-person voter cannot present a qualifying form of photo ID -- which “African Americans are more likely to a multi-step N.C. State Conf., 2016 WL 1650774, at *37. process. lack” -- the voter must undertake First, the voter must complete and sign a form declaring that a reasonable impediment prevented her from obtaining such a photo ID, and identifying that impediment. 14 addition, the must present one of In several alternative types of identification required by the exception. Id. § 163- 166.15(c). voter N.C. Gen. Stat. § 163-166.15. Then, the voter may fill out a provisional ballot, which is subject to challenge by any registered voter in the county. Id. § 163-182.1B. On its face, this amendment does not fully eliminate the burden imposed by the photo ID requirement. Rather, it requires voters to take affirmative steps to justify to the state why they failed to comply with a provision that we have declared was enacted with racially discriminatory intent and is unconstitutional. In sum, the State did not carry its burden at trial to prove that the reasonable impediment 14 exception amendment While declaring that a reasonable impediment “prevent[ed]” her from obtaining an acceptable photo ID, the voter must heed the form’s warning that “fraudulently or falsely completing this form is a Class I felony” under North Carolina law. J.A. 10368. 75 completely cures the harm in this case, nor could it given the requirements of the reasonable impediment exception as enacted by the General Assembly. imposed by the Accordingly, to fully cure the harm impermissible enactment of SL 2013-381, we permanently enjoin all of the challenged provisions, including the photo ID provision. DIANA GRIBBON MOTZ, Circuit Judge, writing for the court: C. As to the other requested relief, we decline to impose any of the discretionary additional relief available under § 3 of the Voting Rights Act, including imposing poll observers during elections and subjecting North Carolina to ongoing preclearance requirements. § 1973a). See 52 U.S.C. § 10302(a), (c) (formerly 42 U.S.C. Such remedies “[are] rarely necessary here in light of our injunction. used” and are not Conway Sch. Dist. v. Wilhoit, 854 F. Supp. 1430, 1442 (E.D. Ark. 1994). To be clear, our injunction does not freeze North Carolina election law in place as it is today. Neither the Fourteenth Amendment nor § 2 of the Voting Rights Act binds the State’s hands in authority such under a way. the The North Constitution Carolina to places, and manner” of its elections. legislature determine the has “times, U.S. Const. art. I § 4. In exercising that power, it cannot be that states must forever 76 tip-toe around certain voting provisions disproportionately used by minorities. Our holding, and the injunction pursuant to it, does not require that. General Assembly finds that we issue If in the future the legitimate justifications counsel modification of its election laws, then the General Assembly can certainly so act. Of course, legitimate justifications do not include a desire to suppress African American voting strength. *** It is beyond fundamental structure.” Party, 440 dispute that significance “voting under is of our the most constitutional Ill. State Bd. of Elections v. Socialist Workers U.S. 173, 184 (1979). For “[n]o right is more precious in a free country than that of having a voice in the election of those who citizens, we must live. illusory if the right make the laws under which, to vote is undermined.” Wesberry record legislature enacted evidence one of v. We thus take seriously, as the Constitution demands, any infringement on this right. the good Other rights, even the most basic, are Sanders, 376 U.S. 1, 17 (1964). ignore as that, the because largest of We cannot race, restrictions of the the franchise in modern North Carolina history. We therefore reverse the judgment of the district court. We remand the case for entry 77 of an order enjoining the implementation of SL 2013-381’s photo ID requirement and changes to early voting, same-day registration, out-of-precinct voting, and preregistration. REVERSED AND REMANDED 78 DIANA GRIBBON MOTZ, Circuit Judge, dissenting as to Part V.B.: We have held that in 2013, the General Assembly, acting with discriminatory intent, enacted a photo ID requirement to become effective in 2016. But in 2015, before the requirement ever went into effect, the legislature significantly amended the law. North Carolina recently held two elections in which the photo ID requirement, as amended, was in effect. The record, however, contains no evidence as to how the amended voter ID requirement affected voting in North Carolina. facts and Supreme Court precedent as to In view of these the propriety of injunctive relief, I believe we should act cautiously. The Supreme Court has explained that “[a]n injunction is a matter of equitable discretion; it does not follow from success on the merits as a matter of course.” Winter v. Natural Res. Defense Council Inc., 555 U.S. 7, 32 (2008); see also Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982). Given the “inherent limitation upon federal judicial authority,” a court’s charge is only to Milliken “cure v. the condition Bradley, 433 that U.S. offends 267, 282 the Constitution.” (1977) (internal quotation marks omitted). If interim events have “cured the condition,” id., and a defendant carries its “heavy burden” of demonstrating that the wrong will not be repeated, a court injunction of the abandoned practice. 79 will properly deny an United States v. W.T. Grant, 345 U.S. 894, 896-97 (1953); see Kohl by Kohl v. Woodhaven Learning Ctr., 865 F.2d 930, 934 (8th Cir. 1989) (“A change in circumstances injunction.”). destroy the need for an Thus, a defendant’s voluntary cessation of an unconstitutional law can practice unconstitutional question of whether City Aladdin’s the an should exercise its power to enjoin” the practice or law. v. “on of court Mesquite bears amendment a of fundamentally or Castle, Inc., 455 U.S. 283, 288-89 (1982). The remedy for an unconstitutional law must completely cure the harm wrought by the prior law. can have that effect. See id. But, a superseding statute And, where a governmental body has already taken adequate steps to remedy an unconstitutional law, courts “generally decline to add . . . a judicial remedy to the heap.” Winzler, 681 F.3d at 1211; cf. A. L. Mechling Barge Lines, Inc. v. United States, 368 U.S. 324, 331 (1961) (“[S]ound discretion withholds the remedy where it appears that a challenged ‘continuing practice’ is, at the moment adjudication is sought, undergoing significant modification so that its ultimate form cannot be confidently predicted.”). In 2015, two years after the enactment of the photo ID requirement, but prior to its implementation, the General Assembly added the reasonable impediment exception to the photo ID requirement. See 2015 N.C. 80 Sess. Laws 103 § 8. The exception provides that a voter without qualifying photo ID may cast a provisional ballot after declaring under penalty of perjury that he or she “suffer[s] from a reasonable impediment that prevents [him] identification.” (internal N.C. quotation from State marks obtaining Conf., 2016 omitted). No acceptable WL 1650774, party in photo at this *36 case suggests that the legislature acted with discriminatory intent when it enacted the reasonable impediment exception. The majority maintains, however, that the reasonable impediment exception does not fully remedy the impact of the photo ID requirement. exception totally requirement. 1 Perhaps not. excuses the But, by its terms, the discriminatory photo Of course, in practice, it may not do so. ID But on this record, I believe we cannot assess whether, or to what extent, the reasonable impediment exception cures the unconstitutional 2013 photo ID requirement. 1 Recently, a court considering a similar reasonable impediment exception suggested that the exception could remedy an otherwise problematic photo ID requirement. See South Carolina v. United States, 898 F. Supp. 2d 30, 35-38 (D.D.C. 2012). In South Carolina, a three-judge panel precleared a photo ID requirement with a reasonable impediment exception after finding that it would not “disproportionately and materially burden racial minorities” as compared to the thenexisting identification requirement. Id. at 38. Here, North Carolina’s reasonable impediment exception “is effectively a codification of th[at] three-judge panel’s holding.” N.C. State Conf., 2016 WL 1650774, at *12. See also Veasey v. Abbott, Civil Action No. 2:13-cv-193 (S.D. Tex. July 23, 2016). 81 Because the district court failed to find discriminatory intent, it did not consider whether any unconstitutional effect survived the 2015 amendment. law, as amended in 2015, Instead, it focused on whether the burdened voters enough to sustain claims under a § 2 results or an Anderson-Burdick analysis. at *122, *156. Of course, this is not the standard Id. that controls or the findings that bear on whether a court should enjoin an unconstitutional racially discriminatory, but subsequently amended, law. 2 Moreover, additional directly to this inquiry. information now exists that goes For after trial in this case, the State implemented the reasonable impediment exception in primary elections in March and June of 2016. The parties and amici in this case have urged on us anecdotal extra-record information concerning the implementation of the exception during the March election. that, in For example, Amicus supporting the Plaintiffs reports the March 2016 primary election, poll workers gave reasonable-impediment voters incorrect ballots and County Boards 2 This contrasts with our ability to assess, without remand, whether the State demonstrated that SL 2013-381 would have been enacted without considerations of race. See supra, Part IV. Although the district court did not shift the burden to the State under Arlington Heights, it had already made extensive findings of the relevant foundational facts regarding the State’s proffered justifications. We lack the equivalent findings regarding what discriminatory impact less than a “material burden” may survive the reasonable impediment exception. 82 of Elections were inconsistent “reasonable” impediment. North Carolina in about what they deemed a See Br. of Amicus Curiae Democracy Support of Appellants at 8-32, Conf., ___ F.3d ___ (4th Cir. 2016) (No. 16-1468). N.C. State In response, the State maintains that “the vast majority” of these criticisms “are inaccurate or misleading,” in part because Amicus completed its report before the State conducted its final vote count. Appellee’s Resp. in Opp’n. to Mot. for Stay of J. and Inj. Pending Appeal at 3-5, N.C. State Conf., ___ F.3d ___ (4th Cir. 2016) (No. 16-1468). Of course, these submissions as to the March election do not constitute evidence and we cannot consider them as such. Witters v. Washington Dep’t of Servs. for the Blind, 474 U.S. 481, 488 n.3 (1986). And for the June election, we do not even have anecdotal information. Thus, we are faced with a statute enacted with racially discriminatory intent, amended before ever implemented in a way that may remedy that harm, and a record incomplete in more than one respect. Given these facts, I would only temporarily enjoin the photo ID requirement and remand the case to the district court to determine if, in practice, the exception fully remedies the discriminatory requirement or if a permanent injunction is necessary. In my view, this approach is that most faithful to Supreme Court teaching as to injunctive relief. 83