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JW Amicus Brief – North Carolina Fourth Circuit

JW Amicus Brief – North Carolina Fourth Circuit

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Category:Election Integrity

Number of Pages:29

Date Created:September 17, 2014

Date Uploaded to the Library:September 25, 2014

Tags:North Carolina, election integrity project, Voter ID


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No. 14-1845 (L), 14-1856, 14-1859 
_____________________________________ THE UNITED STATES COURT APPEALS 
FOR THE FOURTH CIRCUIT 
_____________________________________ 
 
LEAGUE WOMEN VOTERS NORTH CAROLINA, al., 
Plaintiffs  Appellants, 
 
and 
 
LOUIS DUKE, al., 
Intervenors/Plaintiffs  Appellants, 
 
STATE NORTH CAROLINA, al., 
Defendants  Appellees. 
____________________________________ Appeal from the U.S. District Court for the Middle District North Carolina, Case Nos. 1:13-cv-00660 (TDS-JEP), 1:13-cv-00658 (TDS-JEP), 1:13-cv-00861 (TDS-JEP). 
_____________________________________ 
 
MOTION FOR LEAVE JUDICIAL WATCH, INC.,  
ALLIED EDUCATIONAL FOUNDATION, AND CHRISTINA KELLEY GALLEGOS-MERRILL FILE AMICUS CURIAE BRIEF SUPPORT DEFENDANTS-APPELLEES, AND REQUEST PARTICIPATE ORAL ARGUMENT 
____________________________________ 
 
Chris Fedeli 
JUDICIAL WATCH, INC. 
425 Third Street SW, Suite 800 
Washington, 20024 
(202) 646-5172 Christopher Coates 
LAW OFFICE CHRISTOPHER COATES 
934 Compass Point 
Charleston, South Carolina 29412 
(843) 609-7080 
 
Bradley Schlozman   
HINKLE LAW FIRM LLC 
301 North Main Street, Suite 2000 
Wichita, 67202-4820 
(316) 660-6296 
 
Gene Johnson 
JOHNSON LAW FIRM, P.A. 
P.O. Box 1288 
Arden, North Carolina 28704 
(828) 650-0859   
INTRODUCTION 
Pursuant Fed. App. and 29(b), Judicial Watch, Inc. (Judicial Watch), the Allied Educational Foundation (AEF), and Christina Kelley Gallegos-Merrill (Merrill) (collectively amici), and through undersigned counsel, respectfully move for leave file the attached amicus curiae brief support Defendants-Appellees and affirmation, and request leave participate oral argument.1  Pursuant Fourth Cir. 27(a), all parties these consolidated appeals have been contacted, but not clear that all parties whose consent may necessary have given their consent this motion for leave file amicus curiae brief. party has been asked for given consent proposed amicis separate request participate oral argument. party partys counsel authored either this motion the proposed amicus curiae brief whole part, and party person other than proposed amici contributed money towards the preparation and submission either this motion the proposed amicus curiae brief.     
IDENTITY AND INTERESTS THE AMICI 
Judicial Watch non-partisan, public interest organization headquartered Washington, D.C.  Founded 1994, Judicial Watch seeks promote accountability, transparency and integrity government and fidelity the rule law. furtherance these goals, Judicial Watch regularly files amicus curiae briefs and prosecutes lawsuits matters believes are public importance.  
Judicial Watch has appeared amicus curiae multiple federal courts numerous occasions.     
Judicial Watch engaged multi-year legal effort ensure states and counties are conducting elections with integrity required federal law, effort Judicial Watch commenced 20122 and has continued thorough 2014.3 behalf its members, Judicial Watch has recently been engaged litigation against the State Indiana over election integrity,4 and favorably settled similar lawsuit against the State Ohio.5  During this process, Judicial Watch has developed knowledge, expertise, and insight into federal election laws and the careful balance they must strike between ballot access and election integrity.  Judicial Watch has already appeared this case before the lower court, where  See Press Release, 2012 Election Integrity Project: Judicial Watch Announces Legal Campaign Force Clean Voter Registration Rolls, Feb. 2012, available http://www.judicialwatch.org/press-room/press-releases/2012-election-integrity-project-judicial-watch-announces-legal-campaign-to-force-clean-up-of-voter-registration-rolls/.  See Stephen Dinan, States, D.C. are told clean voter rolls sued; Judicial Watch counters Obama, The Washington Times, March 24, 2014, available http://www.washingtontimes.com/news/2014/mar/24/states-dc-are-told-to-clean-up-voter-rolls-or-be-s/?page=all.  See Jae Park, Indiana Begins Purging Voter Rolls, Indiana Public Media News, May 27, 2014, available http://indianapublicmedia.org/news/indiana-begins-purging-voter-rolls-67691/.  See Sam Howard, Husted, voting rights groups settle 'Motor Voter' Act case, Cleveland Plain Dealer, January 13, 2014, available http://www.cleveland.com/open/index.ssf/2014/01/husted_voting_rights_groups_se.html. 
filed amicus curiae brief supporting North Carolina and opposing the plaintiffs request for preliminary injunction.   
AEF nonprofit charitable and educational foundation based Englewood, New Jersey.  Founded 1964, AEF dedicated promoting education diverse areas study.  AEF regularly files amicus curiae briefs means advance its purpose and has appeared amicus curiae federal courts numerous occasions.   
AEF regularly participates election law matters before federal courts.  AEF was granted leave appear amicus two recent election integrity cases Tennessee and Virginia.6  AEF has also filed amicus briefs related cases advocating broad protection citizens rights participate elections and  See Amicus Curiae Brief Judicial Watch and Allied Educational Foundation, Democratic Party Virginia Virginia State Board Elections,  Case No. 1:13-01218 (filed with U.S District Court for the Eastern District Virginia October 16, 2013), available http://alliededucationalfoundation.org/legalbriefs/2013%20Briefs/Democratic%20Party%20of%20VA%20v%20VA%20State%20Board%20of%20Elections%202013.PDF; see also Amicus Curiae Brief Judicial Watch and Allied Educational Foundation, Lincoln Davis and Tennessee Democratic Party Tre Hargett, Case No. 2:12-00023 (filed with U.S District Court for the Middle District Tennessee June 2012), available http://alliededucationalfoundation.org/legalbriefs/2012%20Briefs/Lincoln%20Davis%20and%20Tennessee%20Democratic%20Party%20v%20Tre%20Hargett%20Tenn%20Sec%20of%20State%20and%20Mark%20Goins%20Tenn%20Coord%20Of%20Elections.PDF. 
have their votes counted ballot initiative and referendum measures.7  AEF has already appeared this case before the lower court, joining amicus curiae brief supporting North Carolina and opposing the grant preliminary injunction.  See Amicus Curiae Brief Judicial Watch and Allied Educational Foundation, Citizens Charge Husted,  Case No. 2:13-935 (filed with U.S District Court for the Southern District Ohio March 10, 2014), available http://alliededucationalfoundation.org/legalbriefs/2014%20Briefs/Citizens%20in%20Charge%20v%20Husted.PDF; see also Amicus Curiae Brief Judicial Watch and Allied Educational Foundation, Schuette Coalition Defend Affirmative Action, Case No. 12-682 (filed with U.S. Supreme Court July 2013), available http://alliededucationalfoundation.org/legalbriefs/2013%20Briefs/shuette%20v%20coalition%20%281%29.PDF.   
Ms. Merrill registered voter and resident North Carolina. 2012, she was Republican candidate for County Commissioner Buncombe County, race which she narrowly lost votes.  Ms. Merrill believes that this loss was due same-day registration during early voting that resulted improperly cast ballots.  Ms. Merrill running for Buncombe County Commissioner again 2014 and wants ensure that future North Carolina elections are conducted with integrity, that election results can easily and reliably verified accurate.   
Based her direct experience with the electoral process North Carolina, Ms. Merrill concerned that ruling from this Court reversing the repeal same-day registration during early voting would create the risk unverifiable (and therefore unchallengeable) adverse election results.  Ms. Merrill also registered voter the State North Carolina, and such she shares the same concerns 
all North Carolina citizens that lack election integrity could lead fraud and the dilution cancelling out her vote.  Merrill previously appeared this case before the lower court, joining amicus curiae brief supporting North Carolina and opposing the grant preliminary injunction.       
Amicis interest this case ensure that North Carolinas elections are conducted with integrity and ensure that all citizens have confidence the legitimacy election results.  Amici are concerned that the relief requested Plaintiffs-Appellants this case, granted, would have chilling effect voter confidence the integrity elections, both North Carolina and nationwide. North Carolina compelled reinstate same-day registration, extend the early voting period week, and permit out-of-precinct provisional ballots, many North Carolina citizens could have their votes diluted unlawful ballots cast the names false duplicate registrations.  Furthermore, Plaintiffs-Appellants requested relief will undermine the confidence integrity elections among citizens. the Supreme Court has noted, public confidence the integrity the electoral process encourages citizen participation the democratic process.  Crawford al. Marion County Election Board, 553 181, 197 (2008).  Conversely, lack integrity undermines confidence the electoral system and discourages citizen participation democracy.     
  
AUTHORITY FILE 
Courts have recognized that they have broad discretion permit non-party participate amicus curiae. explained then-Judge Alito, [e]ven when party well represented, amicus may provide important assistance the court.  Neonatology Assocs., P.A. Commissioner Internal Revenue, 293 F.3d 128, 132 (3rd Cir. 2002).  Indeed, the federal courts regularly permit parties with various interests appear amici, reasoning that restrictive policy with respect granting leave file may create least the perception viewpoint discrimination.  Id. 133.  Furthermore, this case, amici are raising issues about which they have particular knowledge and which may helpful the Courts evaluation the appeal.   
REQUEST FOR LEAVE PARTICIPATE ORAL ARGUMENT addition and separately, proposed amici respectfully request leave the Court allow amicis attorney Christopher Coates present oral arguments the Court.  Mr. Coates former Chief the Voting Section the Civil Rights Division the U.S. Department Justice, and previously presented oral arguments this case behalf amici before the District Court.  Mr. Coates member the bar this Court.  
CONCLUSION 
 For the foregoing reasons, proposed amici respectfully requests that this Motion granted.   
Dated:  September 17, 2014        Respectfully submitted Chris Fedeli  
Chris Fedeli 
JUDICIAL WATCH, INC. 
425 Third Street SW, Suite 800 
Washington, 20024 
(202) 646-5172 Christopher Coates 
LAW OFFICE CHRISTOPHER COATES 
934 Compass Point 
Charleston, South Carolina 29412 
(843) 609-7080 Bradley Schlotzman  
Bradley Schlozman   
HINKLE LAW FIRM LLC 
301 North Main Street, Suite 2000 
Wichita, 67202-4820 
(316) 660-6296 
 
Gene Johnson 
JOHNSON LAW FIRM, P.A. 
P.O. Box 1288 
Arden, North Carolina 28704 
(828) 650-0859   
  
CERTIFICATE SERVICE AND ELECTRONIC FILING hereby certify, pursuant Fed. App. 25(d)(2), that electronically filed the foregoing with the Clerk the United States Court Appeals for the Fourth Circuit using the appellate CM/ECF system. certify that the parties the case are registered CM/ECF users and that service will accomplished the appellate CM/ECF service.   
  
Dated:  September 17, 2014 Bradley Schlotzman   
 

No. 14-1845 (L), 14-1856, 14-1859 
_____________________________________ THE UNITED STATES COURT APPEALS 
FOR THE FOURTH CIRCUIT 
_____________________________________ 
 
LEAGUE WOMEN VOTERS NORTH CAROLINA, al., 
Plaintiffs, 
 
and 
 
LOUIS DUKE, al., 
Intervenors/Plaintiffs  Appellants, 
 
STATE NORTH CAROLINA, al., 
Defendants  Appellees. 
____________________________________ Appeal from the U.S. District Court for the Middle District North Carolina, Case Nos. 1:13-cv-00660 (TDS-JEP), 1:13-cv-00658 (TDS-JEP), 1:13-cv-00861 (TDS-JEP). 
_____________________________________ 
 
AMICUS CURIAE BRIEF JUDICIAL WATCH, INC.,  
ALLIED EDUCATIONAL FOUNDATION, AND 
CHRISTINA KELLEY GALLEGOS-MERRILL SUPPORT APPELLEES AND AFFIRMATION 
____________________________________ 
 
Chris Fedeli 
JUDICIAL WATCH, INC. 
425 Third Street SW, Suite 800 
Washington, 20024 
(202) 646-5172 Christopher Coates 
LAW OFFICE CHRISTOPHER COATES 
934 Compass Point 
Charleston, South Carolina 29412 
(843) 609-7080 
Bradley Schlozman   
HINKLE LAW FIRM LLC 
301 North Main Street, Suite 2000 
Wichita, 67202-4820 
(316) 660-6296 
 
Gene Johnson 
JOHNSON LAW FIRM, P.A. 
P.O. Box 1288 
Arden, North Carolina 28704 
(828) 650-0859   
  
Table Contents 
 
Table Authorities.....ii 
 
Identity and Interests the Amici...1 
 
ARGUMENT...2 
 
The Burdens Associated with 589 Are Not Substantial and Not  
Support Section Results Claim Justify the Requested  
Injunction.2 Results Claim Under Section Requires Proof that 
 Challenged Practice Caused Substantial Burden the 
  Right Vote.2 
 
II. The District Court Correctly Determined that the Insignificant 
 Burdens Imposed 589 Not Support Either Section  
 Results Claim the Requested Injunction..8 
 
III. The Plaintiffs Theory Section Liability  
 Fundamentally Flawed...........11 
 
Conclusion....15 
 
Certificate Service  
 
  
 
  
 
    
Table Authorities 
 
Cases 
 
Arizona Inter Tribal Council Ariz., Inc., 133 Ct. 2247  (2013)..5 
 
Brooks Gant, No. 12-5003, 2012 U.S. Dist. LEXIS 139070 
 (D. S.D. Sept. 27, 2012).....6 
 
Brown Dean, 555 Supp. 502 (D.R.I. 1982)..6 
 
Brown Detzner, 895 Supp. 502 (M.D. Fla. 2012)........6  
 
Frank Walker, Nos. 11-CV-01128, 12-CV-00185,  
 2014 U.S. Dist. LEXIS 59344 (E.D. Wis.,  
 Apr. 29, 2014).7,8 
 
Frank Walker, Nos. 14-2058, 14-2059,  
 2014 U.S. App. LEXIS 17653 
 (7th Cir., Sept. 12, 2014)7 
 
Gonzalez Arizona, 677 383 (9th Cir. 2012)....5 
 
Irby Va. State Bd. Elections, 889 1352 
 (4th Cir. 1989).....5,8 
 
N.C. State Conference the NAACP McCrory, Nos.  
 12-CV-658,  13-CV-660, 13-CV-861, 2014 U.S.  
 Dist. LEXIS 109626 (M.D.N.C., Aug. 2014)..passim 
 
Ohio State Conf. the NAACP Husted, No. 14-cv-404,  
 2014 U.S. Dist. LEXIS 123442 (S.D. Ohio, Sep. 2014)...7,8,14 
 
Ortiz City Phila. Office the City Commrs Voter  
 Registration Div., F.3d 306 (3rd 1994)..5,6 
 
Osburn Cox, 369 F.3d 1283 (11th Cir. 2004)..6 
 
Simmons Galvin, 575 F.3d (1st Cir. 2009)..4 
 
Smith Salt River Project Agric. Improvement and Power  
 Dist., 109 F.3d 586 (9th Cir. 1997).......5,8,11  
 
Spirit Lake Tribe Benson Cnty., No. 2:10-CV-095, 2010 
 U.S. Dist. LEXIS 116827 (D. N.D. Oct. 21, 2010) ......6 
 
Thornburg Gingles, 478 U.S. (1986)..3,4,11 
 
United States Blaine Cnty., 363 F.3d 897 (9th Cir. 2004)...4 
 
United States Blaine Cnty., 157 Supp. 1145 
 (D. Mont. 2001)..4 
 
United States Charleston Cnty., 365 F.3d 341 (4th Cir.  2004)...3 
 
Statutes 
 
Fed. App. 29(b)2 U.S.C.  1973(a)......2 U.S.C.  1973(b).3,12 
 
 
 
 
 
Identity and Interests the Amici 
Judicial Watch, Inc. (Judicial Watch) non-partisan, public interest organization headquartered Washington, D.C.  Founded 1994, seeks promote accountability, transparency and integrity government and fidelity the rule law. furtherance these goals, Judicial Watch regularly files lawsuits well amicus curiae briefs relating election integrity and voting.  Judicial Watch has developed knowledge, expertise, and insight regarding the balance election laws must strike between ballot access and election integrity. 
The Allied Educational Foundation (AEF) nonprofit charitable and educational foundation based Englewood, New Jersey.  Founded 1964, AEF dedicated promoting education diverse areas study, including electoral law.  AEF regularly files amicus curiae briefs advance its purposes.  AEF has filed amicus briefs recent election integrity cases Tennessee and Virginia and cases supporting citizens rights participate and have their votes counted elections decide ballot initiatives and referenda.  
Ms. Merrill resident North Carolina and registered voter. 2012, she was Republican candidate for County Commissioner Buncombe County, and lost only votes.  Ms. Merrill believes that this loss was due same-day registration during early voting that resulted improperly cast ballots.  Ms. Merrill running for the same office 2014. candidate and also 
registered voter, Ms. Merrill concerned that lack election integrity under the pre-HB 589 laws could lead fraud, the dilution her vote, and possibly another unwarranted electoral loss.  
Judicial Watch, AEF, and Ms. Merrill previously appeared this case before the district court, filing amicus curiae brief supporting North Carolina and opposing preliminary injunction, and counsel for amici participated the oral argument.  See ECF No. 136 (Amicus Curiae Brief Support Defendants and Opposition Plaintiffs Motion for Preliminary Injunction).  This brief submitted pursuant Rule 29(b) the Federal Rules Appellate Procedure.1 partys counsel authored the brief whole part; party partys counsel contributed money that was intended fund preparing submitting the brief; and person other than the amici curiae their counsel contributed money that was intended fund preparing submitting the brief. 
ARGUMENT 
THE BURDENS ASSOCIATED WITH 589 ARE NOT 
SUBSTANTIAL AND NOT SUPPORT SECTION RESULTS  
CLAIM JUSTIFY THE REQUESTED INJUNCTION. Results Claim Under Section Requires Proof that Challenged Practice Caused Substantial Burden the Right Vote. 

 
 Section the Voting Rights Act forbids State impose apply voting qualifications, practices, procedures in manner which results denial abridgement the right any citizen the United States vote account race color . U.S.C.  1973(a). violation established when the 
political processes leading nomination election are not equally open participation members [protected] class that its members have less opportunity than other members the electorate participate the political process and elect representatives their choice. U.S.C.  1973(b).2  While Section clearly prohibits intentional discrimination with respect voting, its language also proscribes discriminatory results, voting practices that operate, designedly otherwise, deny abridge voting rights.  United States Charleston Cnty., 365 F.3d 341, 345 (4th Cir. 2004).  The claims against North Carolina include Section results claims. September 2014, Section the Voting Rights Act was renumbered the U.S. Code U.S.C.  10301. not yet electronically available Lexis that number, amici will refer throughout its former designation. 
 Two other requirements are apparent from the plain text Section provides that states may not impose apply practices in manner which results proscribed outcome, which means that challenged practice must have caused the result prohibited the statute. U.S.C.  1973(a); see also Thornburg Gingles, 478 U.S. 30, (1986).  Second, does not proscribe practices that merely affect voting, but sets higher standard.  Rather, violation occurs only where voters protected class have less opportunity than other voters to participate the political process and elect representatives their choice. U.S.C.  1973(b).  This necessarily requires injury burden voters that sufficiently serious intractable. 
 The relevant case law bears out these requirements, both claims 
vote dilution and vote denial.3 typical vote-dilution challenge at-large elections, for example, racial minority seeks show that the white majority votes sufficiently bloc enable usually defeat the minoritys preferred candidate.  Gingles, 478 U.S. 51. such case, the evidence racial bloc voting provides the requisite causal link between the voting procedure and the discriminatory result.  United States Blaine Cnty., 363 F.3d 897, 912 n.21 (9th Cir. 2004).  Further, the injury substantial and beyond the control minority voters.  Where at-large system accompanied racially polarized voting, minority may never able elect candidate choice, regardless minority turnout.  The loss electoral power can extreme, the facts Blaine Cnty. amply demonstrate. that case, despite Native American population 45.2%  (id. 900), the district court noted that no Native American [had] served County Commissioner the eighty-six year history Blaine County.  United States Blaine Cnty., 157 Supp. 1145, 1147 (D. Mont. 2001). Section results claim may involve vote dilution vote denial.  Vote dilution refers practices that diminish minorities political influence, such at-large elections and redistricting plans that weaken minority voting strength.  Simmons Galvin, 575 F.3d 24, (1st Cir. 2009) (citations omitted).  Vote denial, alleged here against North Carolina, refers practices that prevent people from voting having their votes counted, such as, for example, literacy tests, poll taxes, white primaries, and English-only ballots.  Id. (citations omitted).   
 Vote-denial claims  like those issue here  likewise require sufficient showings regarding causation and injury. number courts appeal, including 
the Fourth Circuit, have emphasized that vote-denial claim requires proof that challenged practice caused the harm proscribed Section  These same courts repeatedly have stressed that not enough merely show that challenged practice had disproportionate impact particular race.  See Irby Va. State Bd. Elections, 889 F.2d 1352, 1358 (4th Cir.1989) (Section challenge appointed school board system rejected despite significant [racial] disparity between the population and the school boards, because there was causal link between the appointed system and black under-representation.); Gonzalez Ariz., 677 F.3d 383, 406 (9th Cir. 2012) (en banc), affd sub nom., Arizona Inter Tribal Council Ariz., Inc., 133 Ct. 2247 (2013) (even though Latinos had suffered history discrimination socioeconomic disparities [and] racially polarized voting, there was no proof causal relationship between [the challenged] Proposition 200 and any alleged discriminatory impact Latinos.); Smith Salt River Project Agric. Improvement Power Dist., 109 F.3d 586, 595 (9th Cir. 1997) (a bare statistical showing disproportionate impact racial minority does not satisfy the  results inquiry), citing Ortiz City Phila. Office the City Comm'rs, F.3d 306, 308 (3rd Cir.1994) (although African-American and Latino voters are purged disproportionately higher rates than their white counterparts, plaintiff failed prove that the purge statute caused this disparity).  These cases agree that Section plaintiffs must show causal 
connection between the challenged voting practice and the prohibited discriminatory result.  Ortiz, F.3d 312. cases that have granted relief for vote denial, the harm caused the challenged voting practice usually substantial.  For example, Brooks Gant, No. 12-5003,  2012 U.S. Dist. LEXIS 139070 *23 (D.S.D. Sept. 27, 2012), the residents Shannon County, who were almost all Native Americans, had travel from one three hours another county order engage early voting.  The court found that this opportunity was substantially different from the voting opportunities afforded the residents other counties South Dakota and the majority white voters.   See also Spirit Lake Tribe Benson Cnty., No. 2:10-cv-095, 2010 U.S. Dist. LEXIS 116827 (D.N.D. Oct. 21, 2010) (closure polling sites single county with large Native American population will have disparate impact members the Spirit Lake Tribe because significant percentage the population will unable get the remaining location); Brown Dean, 555 Supp. 502, 504 (D.R.I. 1982) (move single polling site would make considerably more difficult vote and would substantial deterrent voting the members the plaintiff class); see also Brown Detzner, 895 Supp. 1236, 1249-50 (M.D. Fla. 2012) (vote denial based denial meaningful access the polls) (emphasis added), citing, inter alia, Osburn Cox, 369 F.3d 1283, 1289 (11th Cir. 2004). 
 Two recent district court cases support the plaintiffs position accepting that showing that the challenged procedures caused denial the equal opportunity participate elect candidates choice. Frank Walker, Nos. 11-cv-01128, 12-cv-00185, 2014 U.S. Dist. LEXIS 59344 (E.D. Wis., Apr. 29, 2014), injunction stayed, Nos. 14-2058, 14-2059, 2014 U.S. App. LEXIS 17653 (7th Cir., Sept. 12, 2014), the court, considering photo requirement (not issue this appeal), held that Section protects against voting practice that creates barrier voting that more likely appear the path and that has disproportionate impact minority voters.  Id. *93.  The Frank court added that would have enjoined even minimal burden that had that effect.  Id. *108. Ohio State Conf. the NAACP Husted, No. 14-cv-404, 2014 U.S. Dist. LEXIS 123442 *6-9 (S.D. Ohio, Sep. 2014), the court enjoined the elimination seven days (and other changes) Ohios early voting laws, this would burden the voting rights African Americans because they use [early voting] higher rates than other groups voters.5  Importantly, the Seventh Circuit stayed the lower courts injunction Frank, based its view that Wisconsins probability success the merits this appeal sufficiently great.  2014 U.S. App. LEXIS 17653 *1.  Ohio State Conf. the NAACP involved factually dense record that differs significantly from the record here.  For example, the court credited testimony about subtle direct racial appeals recent elections, and noted that African Americans are significantly underrepresented elective offices.  2014 U.S. Dist. LEXIS 123442 *110. contrast, there were findings that racial appeals had 
been used recent North Carolina elections, and the plaintiffs own witnesses testified that blacks North Carolina have been elected political office levels that now approach parity with their prevalence the electorate.  N.C. State Conf. the NAACP, 2014 U.S. Dist. LEXIS 109626 *58. 
Amici curiae respectfully submit that these cases were wrongly decided and are contrary the law this and other circuits. voting procedure that may appear the path minority voters simply not the same one that actually causes denial the equal opportunity participate and elect representatives choice.  Ohio State Conf. the NAACP, moreover, would render any voting practice unrepealable under minority voters utilized at higher rates.  Both decisions erred failing apply the causation requirement set forth Section  See Irby, 889 F.2d 1358; Smith, 109 F.3d 595 (a bare statistical showing disproportionate impact racial minority does not satisfy the  results inquiry).  Plaintiffs are asking this Court commit the same error. 
II. The District Court Correctly Determined that the Insignificant Burdens Imposed 589 Not Support Either Section Results Claim the Requested Injunction. 589 places insignificant burdens the voters North Carolina.  First, requires voters register days advance election. the District Court noted, this actually extends the registration cut-off authorized Congress additional five days.  N.C. State Conf. the NAACP McCrory, Nos. 13cv658, 13cv660, 13cv861, 2014 U.S. Dist. LEXIS 109626 *67-68 n.35 (M.D.N.C., Aug. 2014).  Second, under 589, North Carolina voters may not 
utilize same-day registration. this regard, their circumstances are like those the voters other states.  Id. *66-67 n.34.  Third, North Carolina voters must early vote during the adjusted ten-day period. course, many states not offer any early voting, and the United States has conceded that the failure offer does not, itself, violate Section  Id. *130-31 n.61.  The Justice Department, moreover, has precleared state law changes significantly restricting early voting.  Id.  Fourth, under 589, North Carolina voters must vote their own precinct  must the voters majority other states.  Id. *115 n.54. each instance, the prospect successfully registering and voting remains comfortably within the control individual voters. 
   Further, the District Court demonstrated length its opinion that the provisions 589, considered the larger context North Carolinas electoral system whole, not impose burdens voters that warrant Section relief.  Discussing same-day registration, the District Court noted that the plaintiffs experts confirmed that black registration North Carolina exceeds that whites.  Id. *58. addition, the plaintiffs failed show that black voters currently lack equal opportunity easily register vote, given the alternative possibility registering mail; the voter registration services offered numerous State agencies; the lenient laws concerning voter registration drives; and even the option update certain registrations within the 25-day cut-off.  Id. 
*62-64. light all these facts and options, the lack same-day registration was not actionable burden. correctly determined the District Court, [t]hat voters preferred use SDR [same-day registration] over these methods does not mean that without SDR voters lack equal opportunity.  Id. *64. the same vein, the District Court analyzed changes the number days (but not hours) early voting conducting detailed examination both the law and the facts the ground, including county-specific assessment Sunday voting and review organized voter registration efforts.  Id. *124-41.  Noting, among other things, that no witness testified that she will not able [to] adjust operations readily fit the new early-voting period, the District Court ultimately concluded that any claim irreparable harm was speculative.  Id. *139-40.  The District Court also concluded that the totality circumstances, including the minimal usage out-of-precinct ballots and the ready availability other methods voting  including early voting and mail-in absentee balloting  without regard precinct, showed that the plaintiffs were not likely succeed the merits their challenge 589s out-of-precinct procedure.  Id. *118. 
 The District Courts broad approach, considering all available facts within the context totality circumstances analysis, the proper one for Section claim. contrasts sharply with the restrictive and incorrect approach advanced the plaintiffs. 
III. The Plaintiffs Theory Section Liability Fundamentally Flawed. 

 
 The plaintiffs relied below theory Section liability that contrary the governing law.  The basic premise the plaintiffs case that greater proportion black voters use same-day registration, early voting, and out-of-precinct voting.  See, e.g., ECF No. 113 24, 30, 34; ECF No. 98-1 17-20.  However  mindful perhaps the long line circuit court cases holding that a bare statistical showing disproportionate impact racial minority does not satisfy the  results inquiry (Smith, 109 F.3d 595)  the plaintiffs have elaborated that Section causation established showing that such disparate impact arises from interaction between challenged practice and social, economic, and historical factors.  ECF No. 98-1 28; ECF 113 23-24. 
 The plaintiffs have misapplied the governing law.  The plaintiffs are ostensibly relying the Gingles Courts statement that the essence  claim that certain electoral law, practice, structure interacts with social and historical conditions cause inequality the opportunities enjoyed black and white voters elect their preferred representatives.  478 U.S. 47.  But Gingles did not hold that any inequality will support Section claim.  Rather, the Courts language makes clear that the inequality must implicate Section 2s core requirement that members protected class have less opportunity than other [voters] participate the political process and elect representatives their 
choice. U.S.C.  1973(b).   
 Failing acknowledge this requirement, the plaintiffs contend that, once any racial disparity shown affect voters preferences regarding, for example, same-day registration, Section violation has been established.  But the plaintiffs focus too narrow.  Showing that there such disparity, even one shaped interaction with history, not the same making the required showing that minority voters cannot participate equally the political process and elect candidates their choice. structuring the Section inquiry incorrectly they have done, the plaintiffs shut off the appropriate inquiry too soon.  Their arguments slight the pertinent questions regarding trade-offs, alternatives, and mitigating factors that one would want know under totality circumstances analysis  and that the District Court carefully examined  order determine whether racial groups can participate equally the political process.  For example, how hard general register?  How many different options are there for would-be registrants other than same-day registration?  How many Sunday voting hours will actually lost?  How hard start registration drive now, and how could organizers adapt the new rules?  How hard for voters vote in-precinct, or, for that matter, absentee ballot?  See N.C. State Conf. the NAACP, 2014 U.S. Dist. LEXIS 109626 *62-64, 118, 132-33, 138-39.  The District Court has made the 
proper totality the circumstances inquiry that addresses all these issues.  The plaintiffs incorrect approach has avoided doing so. 
 The plaintiffs failure adopt the correct standard reflected their approach turnout data. May 2014, primary election was held North Carolina. was the first election any kind held pursuant the provisions 589.  Notwithstanding 900 pages plaintiffs expert reports forecasting that 589 would inflict numerous burdens North Carolinas voters, voter turnout actually increased the May 2014 primary over the previous midterm primary May 2010  and, every measure, black turnout increased faster than general turnout.  See ECF 136 2-4 and Ex. response, the plaintiffs argued part that the increase turnout data does not explain the persistent racial disparities the mode voting across multiple elections, and that, because turnout can vary for number reasons, the best evidence for determining whether 589 has racially disparate effects the undisputed fact that African Americans disproportionately relied the eliminated practices for multiple election cycles.  ECF No. 153 10.  They argued, other words, that the disparate use same-day registration, early voting, and out-of-precinct voting determinative their claim and that actual 
turnout data are not.6  The court Ohio State Conf. the NAACP makes this same error, stating that, while changes early voting may not reduce turnout,  not necessarily about voter turnout but about opportunity participate the political process compared other groups.  2014 U.S. Dist. LEXIS 123442 *114. explained the accompanying text, turnout, rather than the disparate use early voting minority voters, the correct measure the opportunity participate and elect candidates choice guaranteed Section 
 This exactly backwards.  The only reason assess racially disparate use modes voting determine whether factors that vary race will, some point, depress metric political participation like turnout registration.  The plaintiffs, however, maintain that Section violation established the racially disparate preference for modes voting changed 589  and not, would comport with Section the effect that such disparate use has minoritys opportunity to participate the political process and elect representatives their choice.  Note that, this logic, even were undisputed that black turnout and registration will increase November 2014 faster than white turnout and registration under the challenged provisions 589, Section would still violated because more black voters than white prefer same-day registration, early voting, and out-of-precinct voting.  
 The plaintiffs are wrong think that the Section violation consists the racially disparate preference for same-day registration, early voting, out-of-precinct voting. fact, those disparities are only relevant Section claim 
insofar analysis the totality circumstances shows that they impair minoritys opportunity participate the political process and elect candidates choice.  The plaintiffs flawed approach Section explains why they should lose this appeal, and their lawsuit.  
Conclusion 
 For the foregoing reasons, amici respectfully urge the Court confirm the District Courts denial the plaintiffs motion for preliminary injunction. 
Dated:  September 17, 2014        Respectfully submitted: 
 
Chris Fedeli 
JUDICIAL WATCH, INC. 
425 Third Street SW, Suite 800 
Washington, 20024 
(202) 646-5172 Christopher Coates 
LAW OFFICE CHRISTOPHER COATES 
934 Compass Point 
Charleston, South Carolina 29412 
(843) 609-7080 
 
Bradley Schlozman   
HINKLE LAW FIRM LLC 
301 North Main Street, Suite 2000 
Wichita, 67202-4820 
(316) 660-6296 
 
Gene Johnson 
JOHNSON LAW FIRM, P.A. 
P.O. Box 1288 
Arden, North Carolina 28704 
(828) 650-0859   
 
  
CERTIFICATE SERVICE hereby certify that this 17th day September, 2014, transmitted the foregoing document the parties means electronic filing pursuant the ECF system. Bradley Schlozman                                      
      Bradley Schlozman