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North Carolina v NAACP SCOTUS appeal McCrory 16A168

North Carolina v NAACP SCOTUS appeal McCrory 16A168

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Category:Election Integrity

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Date Created:December 19, 2016

Date Uploaded to the Library:December 19, 2016

Tags:McCrory, effect, discriminatory, Stay, Emergency, Fourth, African, naacp, Respondents, Elections, Americans, Voting, Voter ID, voter, Election, Voter Fraud, Amicus, carolina, north, Davis, Circuit, COUNTY, board, American, Supreme Court


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No. 16A168 THE
Supreme Court the United States
_________
STATE NORTH CAROLINA, AL.,
Applicants,
NORTH CAROLINA STATE CONFERENCE THE
NAACP, AL.,
Respondents.
_________
Emergency Application Recall and Stay
Mandate the United States Court Appeals
for the Fourth Circuit Pending Disposition
Petition for Writ Certiorari
_________
MOTION FOR LEAVE FILE AMICUS BRIEF
AND BRIEF AMICI CURIAE JUDICIAL
WATCH, INC. AND ALLIED EDUCATIONAL
FOUNDATION SUPPORT APPLICANTS
_________ Christopher Coates
LAW OFFICE CHRISTOPHER COATES
934 Compass Point
Charleston, 29412
Dated: August 25, 2016
Chris Fedeli
Lauren Burke
Counsel Record
JUDICIAL WATCH, INC.
425 Third Street
Washington, 20024
(202) 646-5172
lburke@judicialwatch.org THE HONORABLE JOHN ROBERTS, JR., CHIEF
JUSTICE THE SUPREME COURT THE UNITED
STATES AND CIRCUIT JUSTICE FOR THE FOURTH
CIRCUIT:
MOTION FOR LEAVE FILE
AMICUS BRIEF
Amici Curiae Judicial Watch, Inc. and the Allied
Educational Foundation respectfully request leave
file amicus brief support Appellants
Application for relief under Supreme Court Rule North Carolina State Conference the NAACP,
al., McCrory, al., C.A. No. 16-1468 (4th Cir.). August 17, 2016, amici notified counsel and
requested consent from all parties the lower court
proceeding, and all parties have given their consent.
The issues this case are important the
nation and amici. Amici are principally concerned
that the Fourth Circuit decision will have
disruptive effect the upcoming general election
North Carolina, and also that will harm voters
confidence, both within the State and nationwide,
the legitimacy any election results. For these
reasons, amici respectfully request that this Court
grant leave file this brief.
Respectfully submitted, Christopher Coates
LAW OFFICE CHRISTOPHER COATES
934 Compass Point
Charleston, 29412
Chris Fedeli
Lauren Burke
Counsel Record
JUDICIAL WATCH, INC.
425 Third Street
Washington, 20024
(202) 646-5172
lburke@judicialwatch.org
Counsel for Amici Curiae
August 25, 2016
iii
TABLE CONTENTS
MOTION FOR LEAVE FILE AMICUS BRIEF...
TABLE CONTENTS ........................................... iii
TABLE AUTHORITIES .......................................v
INTERESTS THE AMICI CURIAE .....................1
SUMMARY THE ARGUMENT ............................2
ARGUMENT ...............................................................3
THE FOURTH CIRCUIT DECISION
COULD RESULT IRREPARABLE HARM
BEFORE AND DURING THE NORTH
CAROLINA GENERAL ELECTION. ..............3 North Carolina Has Legitimate Interest Preventing Fraud Means Voter Requirement...........................................3 The Fourth Circuit Decision Will Harm
Voter Confidence, Discouraging Citizen
Participation Upcoming Elections. ........5 The Fourth Circuit Ruling Will Create
Electoral Confusion among Voters and
Election Officials North Carolina
General Elections. .......................................7
II.
THE FOURTH CIRCUIT ERRED BECAUSE
ITS FINDING DISCRIMINATORY
INTENT WAS NOT ACCOMPANIED
ADEQUATE FINDING
DISCRIMINATORY EFFECT. ........................8 Discriminatory Intent Claims, the
Plaintiff Must Prove Both Discriminatory
Purpose and Discriminatory Effect. ...........8 Reversing the District Court, the Fourth
Circuit Misapplied the Case Law that
Requires the Plaintiffs Discriminatory
Intent Claims Prove Both
Discriminatory Purpose and Effect. .........10
CONCLUSION ..........................................................21
TABLE AUTHORITIES
CASES
Brooks Miller, 158 F.3d 1230 (11th Cir. 1998) ......10
Crawford al. Marion County Election Board,
553 181 (2008).........................................2,
Davis Bandemer, 478 U.S. 109 (1986) 2-3, San Francisco County Democratic Cent.
Comm.,
489 U.S. 214 (1989)...............................................4
Hunter Underwood, 471 U.S. 222 (1985) .........9,
Johnson DeSoto County Board Commissioners, F.3d 1556 (11th Cir. 1996) .......................... 9-10
Johnson DeSoto County Board Commissioners,
204 F.3d 1335 (11th Cir. 2000)
(DeSoto County II) ..............................................10
North Carolina State Conference the NAACP,
al., McCrory, al.,
C.A. No. 16-1468 (4th Cir.) ........................ passim.
North Carolina State Conf. the NAACP
McCrory,
Case No. 1:13CV658 (M.D.N.C. 2016) ......... 16-17
Ohio Dem. Party Husted,
Case No. 2:15-cv-01802 (S.D. Ohio) ...................18
Personnel Administrator Mass. Feeney,
442 U.S. 256 (1979).........................................9,
Purcell Gonzalez, 549 U.S. (2006)....................2,
Reno Bossier Parish School Board,
528 U.S. 320 (2000)...............................................9
Shelby County Holder,
133 Ct. 2612 (2013).........................................15
Village Arlington Heights Metropolitan Housing
Development Corp,
429 U.S. 252 (1977)................................. 11, 12,
Washington Davis, 426 U.S. 229 (1976) .................9
Williams Rhoades, 393 U.S. (1968) ...................7
STATUTES U.S.C. 10301(b)..................................................15 U.S.C. 10309 ......................................................15
OTHER AUTHORITIES
Barry Burden, David Canon, Kenneth
Mayer Donald Moynihan,
Election Laws, Mobilization, and Turnout: The
Unanticipated Consequences Election Reform, AM. POL. SCI. (2014) ..............................18
vii
General Accounting Office,
Elections: Issues Related Registering Voters
and Administering Elections, June 2016,
available
http://www.gao.gov/assets/680/678131.pdf ........17
Heritage Foundation, SAMPLING ELECTION FRAUD CASES FROM
ACROSS THE COUNTRY, Aug. 2015, available
http://thf_ edia.s3.amazonaws. om/
2015/pdf/VoterFraudCases-8-7-15-Merged.pdf ...4
Justin McCarthy,
Gallup
(Aug.
22,
2016),
available
http://www.gallup.com/poll/194741/four-fiveamericans-support-voter-laws-earlyvoting.aspx?g_source=Politicsg_medium=lead
g_campaign=tiles ..................................................6
Magali Rheault and Brett Pelham,
Worldwide, Views Diverge About Honesty
Elections (Nov. 2008), available
http://www.gallup.com/poll/111691/worldwideviews-diverge-about-honesty-elections.aspx........7
North Carolina State Board Elections website,
http://www. csbe.gov/ ...........................................5
Rasmussen Reports,
New Low: 39% Think U.S. Elections Are Fair
(Aug. 16, 2013), available http://www.
rasmussen
eports.com/public_content/politics/general_
viii
politics/august_2013/new_low_39_think_u_s_
elections_are_fair ..................................................6
REPORT THE COMMISSION FEDERAL ELECTION
REFORM,
Jimmy Carter and James Baker, III (CoChairs), Building Confidence U.S. Elections,
American University Center for Democracy and
Election Management, (Sept. 2005) .................4,
INTERESTS THE AMICI CURIAE
Judicial Watch, Inc. Judicial Watch nonpartisan educational foundation that seeks
promote transparency, integrity, and accountability government and fidelity the rule law.
Judicial Watch regularly files amicus curiae briefs means advance its public interest mission and
has appeared amicus curiae this Court
number occasions.
The Allied Educational Foundation 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 this Court
number occasions.
Amici believe that the decision the U.S. Court Appeals for the Fourth Circuit should immediately stayed preserve the status quo and permit
full hearing and final resolution this Court
important issues federal election law.
particular, amici are concerned that the Fourth
Circuit ruling, allowed stand, will undermine
voter confidence the integrity elections, create
confusion among the electorate North Carolina
November, and enshrine new standard for
Amici state that counsel for party this case authored
this brief whole part; and person entity, other
than amici and their counsel, made monetary contribution
intended fund the preparation and submission this brief.
discriminatory intent which contrary this
Court precedents does not require adequate
showing discriminatory effect.
For these and other reasons, amici urge the
Court grant the Application for Injunction
Pending Petition for Certiorari.
SUMMARY THE ARGUMENT
[P]ublic confidence the integrity the
electoral process encourages citizen participation the democratic process. Crawford al.
Marion County Election Board, 553 181, 197
(2008). Conversely, lack faith electoral
integrity discourages citizen participation
democracy, because the electoral system cannot
inspire public confidence safeguards exist
deter detect fraud confirm the identity
voters. Id. (citation omitted). addition, [c]ourt
orders affecting elections can themselves result voter confusion and incentive remain
away from the polls, particularly election
draws closer. Purcell Gonzalez, 549 U.S. 4-5
(2006). Unless stay issued this Court, the
Fourth Circuit opinion will undermine voter
confidence electoral integrity and create
unnecessary voter confusion the critical period
before the general election. this Court has held, party seeking prove
intentional discrimination must also show that
challenged action has actual discriminatory
effect protected group. Davis Bandemer, 478
U.S. 109, 127 (1986).
Among the grounds for
concluding that the Fourth Circuit ruling was
erroneous the fact that failed make
adequate finding discriminatory effect when
concluded that North Carolina electoral laws had
been enacted with discriminatory intent.
particular, the ruling discounted turnout data
showing that minority participation North
Carolina elections actually increased after the
implementation the challenged laws. stay will preserve the status quo while allowing
this Court issue final order determining the
appropriate
legal
standard
for
intentional
discrimination challenges without throwing the
upcoming elections into confusion. The Court should
grant the application.
ARGUMENT
THE FOURTH CIRCUIT DECISION
COULD RESULT IRREPARABLE
HARM BEFORE AND DURING THE
NORTH
CAROLINA
GENERAL
ELECTION. North Carolina Has Legitimate Interest Preventing Fraud Means Voter Requirement.
North Carolina voter requirement Session
Law 2013-381 legitimate method
prevent impersonation voter fraud. This Court has
found that state[s] indisputably have compelling
interest preserving the integrity [their] election
process[es] and may enact laws that interfere with party internal affairs when necessary ensure
that elections are fair and honest. San
Francisco County Democratic Cent. Comm., 489 U.S.
214, 231 (1989); Crawford, 553 U.S. 196 There question about the legitimacy importance
the State interest counting only the votes
eligible voters. The universal requirements
voter identification achieve this interest are
eminently reasonable.
Crawford (Scalia, J.,
concurring), 553 U.S. 209.
There doubt that voter fraud occurs.
Although such fraud hard detect, the Heritage
Foundation recently compiled list over 300 voter
fraud convictions across the nation including
several convictions for impersonation fraud the
polls, which preventable with voter laws. See
Heritage Foundation, SAMPLING ELECTION
FRAUD CASES FROM ACROSS THE COUNTRY, Aug.
2015, available http://thf_ edia.s3.amazonaws.
om/2015/pdf/VoterFraudCases-8-7-15-Merged.pdf;
see also REPORT THE COMMISSION FEDERAL
ELECTION REFORM, Jimmy Carter and James
Baker, III (Co-Chairs), Building Confidence U.S.
Elections, American University Center for
Democracy and Election Management, (Sept.
2005) While the Commission divided the
magnitude voter fraud there doubt that
occurs ).2 the Carter-Baker Report found, [i]n
The Carter-Baker Report available at: http://www.eac.
gov/ ssets/1/AssetManager/Exhibit%20M.PDF.
close disputed elections, and there are many,
small amount fraud could make the margin
difference. Id.
Indeed, numerous elections North Carolina
have been decided one vote.3 Thus, even few
instances voter fraud could change the outcome election. North Carolina has legitimate interest protecting the integrity its elections. This
interest will compromised the Fourth Circuit
decision allowed stand. The Fourth Circuit Decision Will Harm
Voter Confidence, Discouraging Citizen
Participation Upcoming Elections. 2015 alone, North Carolina had six municipal elections
decided one vote and another coin toss after statistical
tie. See North Carolina State Board Elections website, http://
www. csbe.gov/, Election Results for: Clarktown Commissioner
(available http://er.ncsbe.gov/contest_details.html?election
_dt=11/03/2015county_id=9contest_id=90006);
Town
Princeville Commissioner, Ward (available http://er.ncsbe.
gov/contest_details.html?election_dt=11/03/2015county_id=33
contest_ d=330010); City Lumberton Council, District
(available http://er.ncsbe.gov/contest_details.html?election
_dt=11/03/2015county_id=78contest_id=780006); City
Trinity Council, At-Large (available http://er.ncsbe.gov/
contest_details.html?election_dt=11/03/2015county_id=76
contest_id=760012); Town Biscoe Mayor (available
http://er.ncsbe.gov/contest_details.html?election_dt=11/03/
2015county_id=62contest_id=620001); Town Spruce Pine
Mayor (available http://er.ncsbe.gov/contest_details.html?
election_dt=11/03/2015county_id=61contest_id=610002);
Town St. Pauls Mayor (available http://er.ncsbe.gov
/contest_details.html?election_dt=11/03/2015county_id=78
contest_id=780029). enhancing electoral integrity, the provisions 2013-381 also enhance citizens confidence that
elections are conducted fairly and honestly. Citizens
confidence the electoral process independent
significance,
because
encourages
citizen
participation the democratic process. Crawford,
553 U.S. 197 (2008); Carter-Baker Report 18-19 the perception possible fraud contributes low
confidence the system necessary for North Carolina and other
states restore the American public confidence
the basic honesty elections implementing
integrity laws such voter ID. Large segments
the American public have expressed their dismay
with various aspects our electoral system. poll
from August 2013 reported that only 39%
Americans believe that elections are fair.4 August
2016, another poll reported that more than twothirds registered voters thought voter fraud was
problem.5 2008, when poll asked respondents
around the world whether they had confidence
Rasmussen Reports, New Low: 39% Think U.S. Elections
Are Fair (Aug. 16, 2013), available http://www.rasmussen
eports.com/public_content/politics/general_politics/august_
2013/new_low_39_think_u_s_elections_are_fair.
Justin McCarthy, More than third view [voter fraud]
major problem (36%), while nearly many view
minor problem (32%), Gallup (Aug. 22, 2016), available
http://www.gallup.com/poll/194741/four-five-americanssupport-voter-laws-earlyvoting.aspx?g_source=Politicsg_medium=leadg_campaign=t
iles.
the honesty elections, 53% Americans said that
they did not.6
These surveys reveal startling lack
confidence our own electoral institutions. the
Fourth Circuit ruling not stayed, Americans
distrust their government and their electoral
institutions will grow. The Fourth Circuit Ruling Will Create
Electoral Confusion among Voters and
Election Officials North Carolina
General Elections.
Court orders affecting elections, especially
conflicting orders, can themselves result voter
confusion and consequent incentive remain away
from the polls. election draws closer, that risk
will increase. Purcell Gonzalez, 549 U.S. 4-5
(2006); see Williams Rhoades, 393 U.S. 23, 34-35
(1968) (despite the fact that law imposed burden Ohio voters, relief cannot granted without
serious disruption [to the] election process
The Fourth Circuit ruling was issued little
more than three months prior the upcoming
federal elections. This ruling threatens sow doubt
and confusion among both voters and state
employees regarding the conduct these elections.
The provisions 2013-381 have been place for
Magali Rheault and Brett Pelham, Worldwide, Views
Diverge About Honesty Elections (Nov. 2008), available
http://www.gallup.com/poll/111691/worldwide-views-divergeabout-honesty-elections.aspx.
two general election cycles. Its voter requirement
was utilized during the March and June 2016
primaries. Changes these procedures this point
after both voters and poll workers have learned
them and recently used them threatens
significantly impair the orderly conduct North
Carolina elections.
Altering voting procedures (particularly those
that have been place since 2014) close
election recipe for electoral chaos. Faced with
this possibility, necessary for this Court stay
the Fourth Circuit order, only provide
consistency for voters and election officials the
2016 general election.
II.
THE
FOURTH
CIRCUIT
ERRED
BECAUSE
ITS
FINDING
DISCRIMINATORY INTENT WAS NOT
ACCOMPANIED ADEQUATE
FINDING DISCRIMINATORY EFFECT. Discriminatory Intent Claims, the
Plaintiff Must Prove Both Discriminatory
Purpose and Discriminatory Effect. cases which parties claim that they have
been subjected intentional acts unlawful
discrimination, plaintiffs must prove not only that
the challenged action was taken with
discriminatory purpose, but also that the challenged
action has actual discriminatory effect that
group. Davis Bandemer, 478 U.S. 109, 127 (1986)
(applying this two-prong purpose and effect test
Fourteenth Amendment intent claim challenging
Indiana legislative reapportionment). Davis,
this Court emphasized that constitutional intent
claim requires both discriminatory purpose and
real and actual discriminatory effect. Id. 133
equal protection violation may found only where
the electoral system substantially disadvantages
certain voters Further, this Court made clear that
the evidence discriminatory effect intent claims
had showing more than minimis
[adverse] effect. Id. 134.
Both before and after the ruling Davis, this
Court has applied this two-prong test
discriminatory intent cases brought constitutional
grounds. See e.g., Personnel Administrator Mass. Feeney, 442 U.S. 256, 272, 274 (1979) (both
discriminatory purpose and effect must shown
prove claim under the Equal Protection Clause
alleging
gender
discrimination);
Hunter
Underwood, 471 U.S. 222, 232 (1985) (in
Fourteenth Amendment challenge voting
disenfranchisement
statute
where
both
impermissible racial motivation and racially
discriminatory impact are demonstrated, the
constitutional intent standard was satisfied); and
Reno Bossier Parish School Board, 528 U.S. 320,
337 (2000) (where this Court stated, discriminatory
purpose well discriminatory effect [is]
necessary for constitutional violation, citing
Washington Davis, 426 U.S. 229, 238-245 (1976). addition, courts appeal have required both
purpose and effect for intentional discrimination
claims brought under Section the Voting Rights
Act. See e.g., Johnson DeSoto County Board
Commissioners, F.3d 1556, 1561 (11th Cir. 1996);
and Johnson DeSoto County Board
Commissioners, 204 F.3d 1335, 1344 n.18, 1345-46
(11th Cir. 2000) (DeSoto County II) (in the context intent claim under the Constitution and Section
against at-large districts, the government
discriminatory intent alone, without causal
connection between the intent and some cognizable
injury plaintiffs, cannot entitle plaintiffs relief,
citing Feeney); Brooks Miller, 158 F.3d 1230, 1237
(11th Cir. 1998) (discriminatory intent claim
challenging majority vote requirement rejected
because the majority vote law does not have
discriminatory effect black candidates Reversing the District Court, the Fourth
Circuit Misapplied the Case Law that
Requires the Plaintiffs Discriminatory
Intent
Claims
Prove
Both
Discriminatory Purpose and Effect.
Under both the Fourteenth Amendment and
Section the Voting Rights Act, intent claim
requires plaintiff prove actual discriminatory
effect that caused the enforcement the
challenged provision. The Fourth Circuit implicitly
acknowledged this requirement. But erred both
discounting strong evidence showing that there was discriminatory impact and relying the
wrong kind evidence show such impact.
The Fourth Circuit pointed the fact that
African
Americans
North
Carolina
disproportionately lacked the most common kind
photo ID, which driver license issued the
DMV. App. 15a.7 The Court also highlighted the
district court findings that the other challenged
voting provisions (the reduction the early-voting
period, the abolition same-day-registration, the
ability cast ballots out voter precinct, and
the use pre-registration for and 17-year-olds)
were used African American voters higher
rate than they were used white voters. App. 1518a and 49a. The Fourth Circuit opinion then went say that, the district court findings that
African Americans disproportionately used each
the
removed
mechanisms,
well
disproportionately lacked the photo
establishes sufficient disproportionate impact
App.51a. The Fourth Circuit concluded that,
Accordingly, the district court findings
that African Americans disproportionately
used each the removed mechanisms,
well disproportionately lacked the photo required 2013-381, establishes
sufficient disproportionate impact for
Arlington Heights analysis.
App. 51a.
There are several problems with this analysis. begin with, the portion its opinion that
purports address the question what impact the referring the Fourth Circuit July 29, 2016 opinion,
Amicus Judicial Watch, Inc. will cite that opinion set
forth the Appendix the Applicants Emergency Application Recall and Stay Mandate, follows: App. [citing the
appendix page number]
enforcement 2013-381 has, the Fourth Circuit
relies primarily for guidance Village Arlington
Heights Metropolitan Housing Development Corp,
429 U.S. 252 (1977). App. 49a, 53a. But the portion Arlington Heights cited the Fourth Circuit
discussion the various kinds circumstantial
evidence from which court might infer
discriminatory purpose. App. 49a, citing 429 U.S.
266 impact the official action whether bears
more heavily one race than another. (citation
omitted). This discussion Arlington Heights not
one specifically directed the analysis necessary
discriminatory intent cases where the court must
look see enforcement the challenged
provision, addition having been enacted with
invidious purpose, actually has racially
discriminatory effect. See Davis, 478 U.S. 127;
Feeney, 442 U.S. 272, 274; Hunter, 471 U.S.
232.
More basically, the Court was looking the
wrong place for evidence relevant discriminatory
impact. erred failing accord proper weight
two vital electoral effects: minority registration and
turnout. answer the question whether there discriminatory effect, necessary look
African Americans voter participation rates
elections both before and after the challenged
provisions 2013-381 went into effect.
Statistical evidence this kind was offered into
evidence Applicants rebut claims
Respondents that enforcement some the
provisions8 2013-381 has discriminatory
effect. That evidence showed, noted the Fourth
Circuit, that black voter aggregate turnout
increased 1.8% the 2014 midterm election
compared the 2010 midterm election. App. 53a.9
Strangely, however, the Court Appeals responded this highly probative evidence concerning what,
any, racially discriminatory effect was caused
implementation four the challenged voting
provisions stating that
The district court also erred suggesting
that Plaintiffs had prove that the
Unlike the four other challenged provisions 2013-381
that were enforced the 2014 midterms, the record does not
contain evidence what effect enforcement the photo had
upon African American voter participation, because the photo was not enforced until the March 2016 and June 2016 North
Carolina primaries. App. 79a (Motz, Circuit Judge, dissenting). Judge Motz noted, [t]he record, however, contains
evidence how the amended voter requirement affected
voting North Carolina. Id. Since the burden proof this
case the Respondents, this dearth evidence this
essential element the intent claim challenging the photo
again demonstrates that the district court was correct
granting judgment Applicant.
This comparison took into account midterm elections 2010
and 2014. 2010, the period for early voting was days
longer than 2014. 2010, person could register and vote the same day where such practice was not available
2014. 2010, voter ballot was counted the races
which the voter was eligible vote even the ballot were cast the wrong precinct, which was not the case 2014. Further, 2010 pre-registration activities were on-going where those
activities had been discontinued 2014. Notwithstanding
these changes, the rate the aggregate black voter turnout
was higher 2014 than 2010.
challenged provisions prevented African
Americans from voting the same levels
they had the past. law implicated
here neither the Fourteenth Amendment
nor Section requires such onerous
showing. (Emphasis added).
App. 53a. Later the opinion, the Fourth Circuit
stated the district court consideration the
turnout
evidence
before
and
after
the
implementation 2013-381 was beyond the
scope disproportionate impact analysis. App.
53a.10
The Fourth Circuit slighting crucial
participation evidence such turnout and
registration, and its emphasis instead whether
minority voters used the four disputed voting
The evidence comparing the black turnout the 2010 and
2014 midterm elections was introduced Applicants way rebut Respondents allegations that four provisions
2013-381 constituted intentional racial discrimination. The
Fourth Circuit criticized the use data from those elections,
stating that courts should not place much evidentiary weight any one election (there were actually two elections involved the comparison), and that fewer citizens vote midterm
elections. App. 54a. But assuming all that correct,
does not inure the benefit Respondents. was the
Respondents who had the burden proving that enforcement 2013-381 provisions are having actual discriminatory
effect upon African American voters. the only evidence
the discriminatory effect/turnout issue before the district court
was not reliable, the Fourth Circuit concluded, then that
circumstance indicates that Respondents did not carry their
burden proving discriminatory effect support their
discriminatory intent claim.
procedures higher rates, clearly wrong. Indeed,
amici respectfully submit that the Fourth Circuit
has exactly backwards. The rate which voters
register and turn out vote the true measure
whether there discriminatory effect. Registration
and voting ultimately determine the extent which
the voters are able participate the political
process and elect representatives their choice. U.S.C. 10301(b).11 The fact that minority voters
prefer particular voting practice only relevant
insofar affects the more important issue
whether those voters will actually register vote and
show the polls. hypothetical will make this clear.
First
suppose, the district court found here, that
African American voters disproportionately prefer
particular voting practices such voting without
ID, early voting, same-day registration, and out-ofprecinct voting.
Now suppose that were
established beyond all doubt that one more the
practices that minority voters prefer resulted
lower minority registration and turnout. (As will
become clear this not idle speculation.) those
circumstances, would the State elimination such
practices still constitute violation the Equal
Protection Clause Section the Voting Rights
The Voting Rights Act has always reflected the same
practical approach voting power. For example, minority
voter registration was key part the Act trigger for
determining whether states were covered its preclearance
requirements. See Shelby County Holder, 133 Ct. 2612,
2619-20 (2013). And improvement minority registration still statutory factor assessing whether terminate the
use federal observers. U.S.C. 10309.
Act? According the Fourth Circuit logic,
would, because the Court more concerned with
minority voters preference for electoral practice
than with the actual effect that such practice has electoral outcomes.
Yet this makes sense. federal voting law
intended ensure minority participation should not applied way that lowers it. Indeed, take
the hypothetical step further, suppose that
minority plaintiffs sued enjoin electoral
practice that minority voters admittedly preferred, the stated ground that the practice actually leads lower minority participation elections. the
Fourth Circuit reasoning, which set plaintiffs
should prevail, the plaintiffs the instant case,
the plaintiffs this hypothetical?
These issues are not just hypothetical. The
evidence offered trial showed that minority
turnout and registration actually increased North
Carolina after the implementation 2013-381.12
The Fourth Circuit attempted discount this evidence
arguing that the increase minority turnout actually
represents significant decrease the rate change. App.
54-55a. Aside from the fact that the law does not require
perpetual increases minority turnout, let alone its rate,
and that perpetual increases such rate are unlikely, and
even become impossible the limit 100% approached, the
Fourth Circuit simply ignored the district court finding, based testimony from plaintiffs experts, that African American
registration North Carolina has reached 95.3%, and that
[t]he registration rate African Americans has surged
North Carolina since 2000, the point that the registration
rate African Americans now exceeds that whites. North addition, with respect early voting particular
there growing body evidence suggesting that associated with lower turnout. June 2016, the
General Accounting Office (GAO) issued report
online which gathered and presented the
conclusions scores studies concerning number different electoral reforms. With regard early
voting, the report states: reviewed studies from
publications, and these studies had varied
findings.
Seven
studies
found
statistically significant effect, another
studies found that the policy decreased
turnout, and studies reported mixed
evidence. Reported effects from these
studies ranged from 3.8 percentage point
decrease turnout 3.1 percentage
point increase.13
The GAO observed that one study found some
evidence that early in-person voting decreased
turnout among Latinos states that offered this
policy compared states that did not.
Furthermore, expert called Respondents
this case, Barry Burden, co-authored 2014
Carolina State Conf. the NAACP McCrory, Case No.
1:13CV658 (M.D.N.C. 2016), ECF No. 184 n.30.
Elections: Issues Related Registering Voters and
Administering Elections, General Accounting Office, June 2016
(emphasis
added),
available
http://www.gao.gov/assets/680/678131.pdf.
Id. 97.
report
reaching
the
same,
unanticipated
conclusion, namely, that early voting was associated
with lower turnout: seems logical that making voting more
convenient will encourage more people cast ballots. challenge this notion
and show that the most popular reform
early voting actually decreases turnout
when
implemented
itself,
unanticipated consequence that
has
significant implications for policy and for
theories how state governments can
influence turnout.
This result counterintuitive, and
certainly runs against the grain
conventional wisdom.15 the foregoing indicates, the Fourth Circuit
misplaced reliance minority voter preference
usage risks enshrining principle that not only
wrong, but perverse, that could lead lower
minority participation elections. that happens,
federal voting law will have been sacrificed the
law unintended consequences. All such potential
inconsistencies may simply avoided requiring
that the discriminatory effect electoral practice
Barry Burden, David Canon, Kenneth Mayer
Donald Moynihan, Election Laws, Mobilization, and
Turnout: The Unanticipated Consequences Election Reform, AM. POL. SCI. (2014). This report was recently filed trial exhibit Ohio Dem. Party Husted, Case No. 2:15-cv01802 (S.D. Ohio) (Defendants Trial Exh. 14-N, ECF No. 12714 226 (PAGEID 6826)).
must shown its effect voter registration
turnout. These commonsense metrics best reflect the
priorities already embodied federal voting law.
Amici respectfully submit that the Fourth Circuit
erred when discounted this evidence. number other statements the Fourth
Circuit opinion demonstrate that did not correctly
apply the applicable law. explaining its reversal the lower court, the Fourth Circuit stated that the
district court believed that the disproportionate
impact the new legislation depends the options
remaining after enactment the legislation.
(citation omitted).
Arlington Heights requires
nothing the kind. App. 49a. But the phrase
options remaining clearing referring what
type voting opportunities are available minority
voters after the challenged provisions began being
enforced. example would where minority
voter, who had frequently voted the first seven
days the 17-day early voting period, decided, upon
learning the new early voting time period, early
vote within the 10-day period allotted under
2013-381. Another example would voter who
had voted out his her precinct the past, but
who decided, upon learning the new requirement vote one assigned precinct, simply begin
voting the correct precinct.
Likewise, its opinion the Fourth Circuit stated
that the standard the district court used measure
impact required too much the context
intentional discrimination claim. App. 50a. The
above-cited precedents this Court specifically
require that the context such claim inquiry
must made determine whether challenged
law impacting plaintiff voting opportunities.
Thus, was actually the Fourth Circuit analysis
that did not ask enough.
Another telling statement the Fourth Circuit
opinion its observation that cumulatively, the
panoply restrictions results greater
disenfranchisement than any the law provisions
individually.
App. 52a (emphasis added).
Requiring voters bring ID, vote 10-day
early voting period, register advance, and
vote their own precincts, not constitute voter
disenfranchisement the absence showing discriminatory effect. This especially true
where, here, the party who had the burden
proof did not offer evidence showing reduction
registration voting African American voters.
Without such evidence, was inappropriate
characterize the evidence the case involving
disenfranchisement.
This mischaracterization
again
demonstrates
the
Fourth
Circuit
misunderstanding what the precedents this
Court require.
CONCLUSION
For the foregoing reasons, amici respectfully
request that this Court grant the Emergency
Application for Injunction.
Respectfully submitted, Christopher Coates
LAW OFFICE CHRISTOPHER COATES
934 Compass Point
Charleston, 29412
Chris Fedeli
Lauren Burke
Counsel Record
JUDICIAL WATCH, INC.
425 Third Street
Washington, 20024
(202) 646-5172
lburke@judicialwatch.org
Counsel for Amici Curiae
August 25, 2016