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Judicial Watch • North Carolina Voter ID Cert Petition FINAL 833

North Carolina Voter ID Cert Petition FINAL 833

North Carolina Voter ID Cert Petition FINAL 833

Page 1: North Carolina Voter ID Cert Petition FINAL 833

Category:Election Integrity

Number of Pages:48

Date Created:December 28, 2016

Date Uploaded to the Library:March 28, 2017

Tags:discriminatory, Cert, African, Fourth, petition, Americans, Elections, Voting, SHELBY, Voter ID, Election, Voter Fraud, voter, carolina, north, rights, Circuit, Obama, COUNTY, DOJ, board, Supreme Court, states, district, united


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the Supreme Court the United States
STATE NORTH CAROLINA, al.,
Petitioners,
NORTH CAROLINA STATE CONFERENCE THE NAACP, al.,
Respondents. Petition for Writ Certiorari the
United States Court Appeals for the Fourth Circuit
PETITION FOR WRIT CERTIORARI
AND VOLUME THE APPENDIX
ROBERT STEPHENS
Office the Governor
North Carolina
20301 Mail Service Center
Raleigh, 27699
KARL BOWERS, JR.
Bowers Law Office LLC
Post Office Box 50549
Columbia, 29250 KYLE DUNCAN
Counsel Record
GENE SCHAERR
STEPHEN SCHWARTZ
SchaerrDuncan LLP
1717 St. NW, Suite 900
Washington, 20006
202.714.9492
KDuncan@Schaerr-Duncan.com
THOMAS FARR
PHILIP STRACH
MICHAEL MCKNIGHT
Ogletree Deakins Nash
Smoak Stewart,
4208 Six Forks Road
Raleigh, 27609
Counsel for Petitioners
QUESTIONS PRESENTED
This case involves challenge under Section
the Voting Rights Act, USC 10301 and the
federal Constitution North Carolina election
reforms specifically, photo-ID requirement, 7-day
reduction early voting, and the elimination sameday registration, out-of-precinct voting, and preregistration for 16-year-olds. Following two trials with
over 130 expert and fact witnesses, the district court
issued 479-page opinion finding those reforms had
neither discriminatory effect nor intent.
Without disturbing those effect findings, the
Fourth Circuit found the reforms were motivated
discriminatory intent. relied evidence that,
inter alia, North Carolina enacted its reforms soon
after being release[d] from preclearance under
Section the Voting Rights Act, USC 10304 Shelby County Holder, 133 Ct. 2612
(2013), App. 33a; that North Carolina had received
preclearance objections election laws over the past
three decades; and that legislators knew that AfricanAmericans used some the eliminated mechanisms higher rates.
The following questions are presented: Whether federal court has the authority reimpose, under the Voting Rights Act, the
same anti-retrogression preclearance standard
invalidated Shelby County. Whether the Fourth Circuit erred holding that,
although the challenged reforms did not adversely
affect minority voting, the North Carolina
legislature nonetheless intended deny AfricanAmericans the right vote. Whether statistical racial disparities the use
voting mechanisms procedures are relevant
vote denial claim under
iii
PARTIES THE PROCEEDING
Petitioners State North Carolina; Governor
Patrick McCrory; the North Carolina State Board
Elections; Kim Westbrook Strach, her official
capacity the Executive Director the State Board Elections; Joshua Howard, his official capacity member the State Board Elections; Rhonda Amoroso, her official capacity member the
State Board Elections; Joshua Malcolm, his
official capacity member the State Board
Elections; Paul Foley, his official capacity
member the State Board Elections; Maja Kricker, her official capacity member the State Board Elections; and James Baker, his official capacity member the North Carolina State Board
Elections were Defendants the district court and
Appellees the court appeals.
Respondents North Carolina State Conference
the NAACP, Rosanell Eaton, Emmanuel Baptist
Church, Bethel Baptist Church, Covenant
Presbyterian Church, Barbee Chapel Missionary
Baptist Church, Armenta Eaton, Carolyn Coleman,
Jocelyn Ferguson-Kelly, Faith Jackson, Mary Perry,
and Maria Teresa Unger Palmer were Plaintiffs the
district court and Appellants appeal No. 16-1468.
Respondents Louis Duke, Josue Berduo, Nancy Lund, Brian Miller, Becky Hurley Mock, Lynne Walter, and Ebony West were PlaintiffsIntervenors the district court and Appellants
appeal No. 16-1469. Respondents the League
Women Voters North Carolina, the North Carolina Philip Randolph Institute, Unifour Onestop
Collaborative, Common Cause North Carolina, Goldie
Wells, Kay Brandon, Octavia Rainey, Sara Stohler,
and Hugh Stohler were Plaintiffs the district court
and Appellants appeal No. 16-1474. Respondent the
United States was Plaintiff the district court and
Appellant appeal No. 16-1529.
TABLE CONTENTS
Questions Presented .....................................................
Parties the Proceeding .......................................... iii
Introduction .................................................................
Opinions Below ............................................................
Jurisdiction ..................................................................
Statutory Provisions Involved.....................................
Statement ....................................................................
North Carolina Electoral Reform Laws .........
Procedural History ............................................
The District Court Opinion .......................
The Fourth Circuit Opinion ....................
Reasons for Granting the Petition ............................ The Fourth Circuit Decision Effectively
Nullifies Shelby County. ......................................
II. Inappropriately Convicting North Carolina Deliberate Racial Discrimination, The Fourth
Circuit Provides Roadmap For Invalidating
Many State Election Laws. ..................................
The Fourth Circuit Intent Analysis
Egregiously Misguided. ..................................
The Fourth Circuit Intent Analysis
Provides Roadmap For Invalidating
Election Laws Numerous States. ..............
III.The Fourth Circuit Decision Exacerbates
Circuit Confusion About The Relevance
Statistical Disparities Claims. ...................
Conclusion ..................................................................
APPENDIX
VOLUME
Appendix Opinion the United States
Court Appeals for the Fourth
Circuit
(July 29, 2016) ......................................
VOLUME
Appendix Opinion the United States
District Court for the Middle
District
North
Carolina
(April 25, 2016) ................................... 79a
VOLUME III
Appendix 2013-381 ..................................... 533a
Appendix 2015-103 ...................................... 676a
Appendix Defendants Proposed Findings
Fact and Conclusions Law
the United States District Court
for the Middle District North
Carolina Excerpt
(May 19, 2016) .................................. 709a
vii
Cases
TABLE AUTHORITIES
Arizona InterTribal Council Arizona, Inc.,
133 Ct. 2247 (2013) ..........................................
Bartlett Stephenson,
535 U.S. 1301 (2002) ............................................
Beer United States,
425 U.S. 130 (1976) ..............................................
City Mobile, Alabama Bolden,
446 U.S. (1980) ................................................
Crawford Marion County Election Board,
553 U.S. 181 (2008) ..........................................
Frank Walker,
768 F.3d 744 (7th Cir. 2014) ................................
Gause Brunswick County, F.3d 1178 (4th Cir. Aug. 13, 1996) .................
Georgia Ashcroft,
539 U.S. 461 (2003) ..............................................
Georgia United States,
411 U.S. 526 (1973) ..............................................
Gonzalez Arizona,
677 F.3d 383 (9th Cir. 2012) ................................
Haith Martin,
618 Supp. 410 (E.D.N.C. 1985)........................
Holder Hall,
512 U.S. 874 (1994) ........................................ 16,
Hunt Cromartie,
526 U.S. 541 (1999) ..............................................
viii
Hunter Underwood,
471 U.S. 222 (1985) ..............................................
James Bartlett,
607 S.E.2d 638 (2005) ............................................
Kindley Bartlett,
No. 5:05-cv-00177 (E.D.N.C. 2005) ......................
Lake North Carolina State Board
Elections,
798 Supp. 1199 (M.D.N.C. 1992) .....................
League Women Voters North Carolina North Carolina,
769 F.3d 224 (4th Cir. 2014) ........................
Lee Virginia State Board Elections, F.3d __, 2016 7210103
(4th Cir. Dec. 13, 2016) ........................................
Lewis Alamance, F.3d 600 (4th Cir. 1996) ..................................
North Carolina League Women Voters North
Carolina,
135 Ct. 1735 (2015) ............................................
North Carolina League Women Voters North
Carolina,
135 Ct. (2014) ..................................................
Northwest Austin Municipal Utility District
Number One Holder,
557 U.S. 193 (2009) ........................................ 25,
Ohio Democratic Party Husted,
834 F.3d 620 (6th Cir. 2016) .................... 21, 30,
Personnel Admininstrator Massachusetts Feeney,
442 U.S. 256 (1979) ..............................................
Pullman-Standard Swint,
456 U.S. 273 (1982) ............................ 23, 24, 34,
Reno Bossier Parish School Board,
520 U.S. 471 (1997) ..............................................
Reno Bossier Parish School Board,
528 U.S. 320 (2000) ........................................ 17,
Rogers Lodge,
458 U.S. 613 (1982) ..............................................
Sample Jenkins,
No. 5:02-cv-00383 (E.D.N.C. 2002) ......................
Shelby County Holder,
133 Ct. 2612 (2013). ................................. passim
South Carolina United States,
898 Supp. (D.D.C. 2012) ....................
Thornburg Gingles,
478 U.S. (1986) ..................................................
United Jewish Organizations
Williamsburgh, Inc. Carey,
430 U.S. 144 (1977) ..............................................
Veasey Abbott,
830 F.3d 216 (5th Cir. 2016) ................................
Village Arlington Heights Metropolitan Housing Development
Corp.,
429 U.S. 252 (1977) ..............................................
White Franklin County,
No. 5:03-cv-00481 (E.D.N.C. 2004) ......................
Statutes USC 1254 .............................................................. USC 1291 .............................................................. USC 1331 .............................................................. USC 10301 ........................................................ USC 10303 .......................................................... USC 10304 ..........................................................
Other Authorities
Ansolabehere, Stephen, al., Regional
Differences Racial Polarization the
2012 Presidential Election: Implications for
the Constitutionality Section the
Voting Rights Act,
126 Harv. Rev. 205 (2013) ...........................
Clarke, Kristen, The Obama Factor: The
Impact the 2008 Presidential Election
Future Voting Rights Act Litigation, Harv. Pol Rev. (2009) ........................
Earls, Anita S., al., Voting Rights North
Carolina: 1982 2006, Cal. Rev. Soc. Just. 577 (2008) ...........
Kengle, Robert A., Voting Rights Georgia:
1982 2006, Cal. Rev. Soc. Just. 367 (2008) ...........
NATIONAL CONFERENCE STATE
LEGISLATURES, ELECTION LAWS AND
PROCEDURES OVERVIEW (Aug. 19, 2016) ..............
Powers, John M., Note: Statistical Evidence
Racially Polarized Voting the Obama
Elections, and Implications for Section
the Voting Rights Act,
102 Geo. L.J. 881 (2014)................................. 25,
Rules Ct. 10(a). ............................................................ Ct. 10(c) ....................................................... 16,
Regulations CFR 51.19 .............................................................
No. _______ the Supreme Court the United States
_________
STATE NORTH CAROLINA, al.,
Petitioners,
NORTH CAROLINA STATE CONFERENCE THE NAACP, al.
_________
INTRODUCTION
This case involves challenges under Section the
Voting Rights Act and the federal Constitution North Carolina election reforms. Those reforms
include photo-ID law more lenient than the one this
Court upheld eight years ago, see Crawford Marion
Cty. Election Bd., 553 U.S. 181 (2008), and other
voting adjustments that were already effect during
two statewide elections which African-American
participation increased. These sensible changes place
North Carolina within the majority current State
election practices. The district court found North
Carolina reforms had discriminatory effect
African-Americans and were enacted with
discriminatory intent. Overriding the district court,
however, the Fourth Circuit not only found those
reforms motivated racially discriminatory intent,
but compared them laws from the era Jim Crow.
App. 26a, 46a. That extraordinary decision merits
review for three separate reasons.
First, the Fourth Circuit decision effectively
nullifies this Court decision Shelby County
Holder, 133 Ct. 2612 (2013), which invalidated the
coverage formula for preclearance under Section
the Voting Rights Act Palpably indignant that
North Carolina reforms were enacted soon after the
State release from the preclearance
requirements, App. 33a, the Fourth Circuit essence
invented its own preclearance regime under That
decision guts Shelby County basic premise that
history did not end 1965, 133 Ct. 2628, and
that States should therefore restored equal
sovereignty regulating elections. Evidently the
Fourth Circuit eyes, where North Carolina
concerned, always 1965.
Second, the Fourth Circuit decision addresses
extraordinarily important question way that
egregiously misguided and that threatens numerous
State election laws. Simply put, the decision insults
the people North Carolina and their elected
representatives convicting them abject racism.
That charge incredible its face given the pains
the legislature took ensure that one right
vote would abridged, and the fact that the reforms
align North Carolina with the majority current
State practices. becomes even more perplexing
given that the Fourth Circuit did not disturb the
district court findings that the reforms have
discriminatory effect. And becomes downright
absurd given that the Fourth Circuit bluntly overrode
the district court meticulous findings classic fact
question intent reached after weeks trial. Worst all, the basis for the Fourth Circuit decision not
specific North Carolina. the contrary, the panel
evidence showing discriminatory intent would
overturn election laws numerous States. federal
circuit should not take step such enormity without
this Court review.
Third, the decision compounds confusion among
federal circuits regarding use statistical disparities vote denial claims. Four circuits the Fifth,
Sixth, Seventh, and Ninth already disagree
whether discriminatory effect can proved solely
through racial disparities the use particular
voting mechanisms. Adding confusion confusion,
the Fourth Circuit has adopted the principle that
legislators mere awareness such disparities may
prove discriminatory intent even where the
challenged laws have discriminatory effect.
OPINIONS BELOW
The opinion the court appeals reported
831 F.3d 204. App. 78a. The opinion the district
court available 2016 1650774. App. 79a
532a.
JURISDICTION
The court appeals entered its judgment July
29, 2016. App. 1a. October 14, 2016, the Chief
Justice extended the time for filing petition for
certiorari November 28, 2016. No. 16A362.
November 15, 2016, the Chief Justice further
extended the time for filing petition for certiorari
December 26, 2016. Id. This Court has jurisdiction
under USC 1254(1). The court appeals had
jurisdiction under USC 1291 and 1331.
STATUTORY PROVISIONS INVOLVED
Section the Voting Rights Act provides,
relevant part:
(a) voting qualification prerequisite
voting standard, practice, procedure
shall imposed applied any State
political subdivision manner which
results denial abridgement the
right any citizen the United States
vote account race color
provided subsection (b).
(b) violation subsection (a) established if,
based the totality circumstances,
shown that the political processes leading
nomination election the State
political subdivision are not equally open
participation members class
citizens protected subsection (a) that
its members have less opportunity than
other members the electorate
participate the political process and
elect representatives their choice. USC 10301.
STATEMENT North Carolina Electoral Reform Laws 2013, the North Carolina legislature enacted
package election reforms known 2013-381.
the law measures, App. 105a 107a, only five are
relevant here.
Voter ID: Under previous law, poll workers
confirmed
voter
identity
through
signature
attestation. App. 89a. 2013-381 improved that
antiquated system requiring in-person voters
present photo ID. Qualifying IDs include driver
license; free voter-ID card available from the DMV; United States passport; military veterans
card; tribal enrollment card. App. 120a 121a.
The legislature provided two-year soft roll out
before the requirement would take effect 2016,
and appropriated about million educate voters.
App. 107a, 133a. The State Board Elections also
undertook database matching efforts assess which
voters lacked qualifying ID, and then mailed over
200,000 voters resources for obtaining free photo
and offering assistance through postage pre-paid
response card. App. 134a 137a. 2015, the legislature amended the law expand
qualifying IDs and establish exception allowing
voters lacking cast provisional ballot they
declare reasonable impediment obtaining
and provide alternative identification. App. 118a
119a, 177a (discussing 2015-103). That provisional
ballot must counted unless the stated excuse
factually false, merely denigrating the
requirement, obviously nonsensical. App. 119a,
181a. This exception mirrors South Carolina law
precleared 2012. South Carolina United States,
898 Supp. 30, (D.D.C. 2012); App. 200a 201a.
Early Voting: 2013-381 reduced the earlyvoting period from days. App. 121a. The first
seven days had been the least-used, and the lengthier
early-voting
period
had
fostered
political
gamesmanship particular, locating early-voting
sites areas favoring only one political party. App.
344a 345a. preserve early-voting opportunities,
however, 2013-381 offset the decrease earlyvoting days with requirement that aggregate earlyvoting hours equal those the previous analogous
election, thus expanding evening and weekend earlyvoting opportunities. App. 122a, 224a 225a, 402a
404a. These revisions were scheduled into effect January 2014. Even after reducing its early-voting
period, North Carolina would remain within the
mainstream State early-voting practice. Many
States offer early voting all, and supermajority
offer weekend voting. App. 201a 203a; see infra
21.
Out-of-Precinct Voting: 2005 the North Carolina
Supreme Court interpreted State law require voters vote the precinct where they reside. James
Bartlett, 607 S.E.2d 638, 642 (2005); App. 95a.
James observed that in-precinct voting makes
elections more efficient and prevents fraud. App.
376a 377a. That same year, however, the legislature
(then Democrat-controlled) retroactively overruled
James and allowed voters vote the wrong precinct
(but the correct county) casting provisional ballot.
App. 97a. 2013-381 restored the pre-2005 system eliminating out-of-precinct voting. App. 123a 124a.
That change was scheduled take effect January
2014. eliminating out-of-precinct voting, North
Carolina would join majority States that disallow
the practice. App. 253a; see infra 21.
Same-Day Registration: North Carolina law allows
voters register days before election. App.
97a 98a. Since 2007, voters could both register and
vote early-voting sites during the early-voting
period. App. 98a. Administrative problems with that
regime led potentially thousands ineligible voters
participating elections. App. 364a 365a. 2013381 repealed this provision, thus restoring the pre2007 system. App. 123a. That change was scheduled take effect January 2014. eliminating sameday registration, North Carolina would join super-
majority States that not allow the practice. App.
229a; see infra 21.
Pre-Registration: Since 2009, North Carolina
allowed pre-registration 16-year-olds who would
not before the next general election. App. 99a.
Experience showed, however, that pre-registered
individuals could become confused about their
eligibility vote. App. 383a. 2013-381 therefore
ended pre-registration 16-year-olds, while
maintaining for 17-year-olds who will
election day. App. 124a. That change was scheduled
take effect September 2013. eliminating preregistration 16-year-olds, North Carolina would join super-majority States that not allow the
practice. App. 259a 260a; see infra 21. Procedural History August 12, 2013 the day 2013-381 was
enacted the North Carolina Conference the
NAACP and the League Women Voters challenged
the reforms under the federal Constitution and
the Voting Rights Act. September 30, 2013, the
United States brought challenge under App.
125a. Various proceedings led preliminary
injunction that eventually went into effect 2015.
App. 129a; see League Women Voters N.C.
North Carolina, 769 F.3d 224, 242 (4th Cir. 2014) LWV (ordering entry preliminary injunction);
North Carolina League Women Voters N.C., 135 Ct. (2014) (staying Fourth Circuit mandate
pending certiorari); North Carolina League
Women Voters N.C., 135 Ct. 1735 (2015) (denying
certiorari).
Except for the photo-ID requirement (which would
not take effect until 2016), the 2014 midterm primary
and general elections took place with the 2013-381
reforms effect. During the May 2014 midterm
primary, relative the 2010 midterm, AfricanAmerican turnout increased from 11.4% 13.4%.
During the subsequent midterm general, again
relative the 2010 midterm, African-American
participation again increased this time from 40.4% 42.2%. This represented the highest overall turnout
increase any group, greater increase than white
turnout (which increased from 45.7% 46.8%), and
the smallest white African American turnout
disparity any midterm election from 2002 2014.
App. 127a, 130a, 436a. June 18, 2015 weeks before trial was
begin the legislature enacted 2015-103,
expanding qualifying photo IDs and establishing the
reasonable impediment exception. Given that
enactment, the United States abandoned its
discriminatory effect claim the voter-ID law. App.
126a.
The district court bifurcated the trial. July 2015, three-week trial addressed all challenged reforms
except photo-ID. App. 130a 131a. The court heard
testimony from fact witnesses and sixteen experts.
Id.; App. 87a. Subsequently, January 2016, sixday trial addressed photo-ID, featuring testimony
from further nineteen fact witnesses and five
experts. App. 131a. The District Court Opinion April 25, 2016, the district court issued 479page opinion upholding all challenged provisions
under and the Constitution. Appendix App. 79a. the court found the provisions had
discriminatory impact and were not motivated
discriminatory intent. App. 521a 530a. The
voluminous opinion can only summarized here. discriminatory impact assess discriminatory impact, the district court
analyzed whether (1) the challenged practices impose discriminatory burden African-American voters,
and (2) that burden caused discriminatory social
and historical conditions. App. 273a (citing LWV, 769
F.3d 242). The court considered the totality the
circumstances, aided the nine factors from
Thornburg Gingles, 478 U.S. (1986). App. 273a
275a. concluded that plaintiffs failed establish
that, under the electoral system established
2013-381 and 2015-103, African Americans
Hispanics have less opportunity than other members the electorate participate the political process
and elect representatives their choice. App. 435a
(quoting USC 10301(b)).
The court found that none the challenged
provisions impeded African-American political
participation. For instance, found that least
94.3% registered African-American voters already
possessed qualifying photo-ID, App. 164a, and that
voters lacking IDs could easily vote under the
generous reasonable impediment exception. App.
167a, 397a 399a. also found that none the other
challenged provisions imposed discriminatory
burden given the many [remaining] convenient
registration and voting mechanisms that provide
African Americans equal opportunity participate the political process. App. 435a. The court
buttressed its conclusion with data from the two 2014
statewide elections showing increased AfricanAmerican participation while the 2013-381 reforms
were effect. App. 436a.
The court meticulous application the Gingles
factors strongly favored North Carolina. For instance,
the court found that the plaintiffs expert failed
catalogue any official discrimination after the 1980s
and that the turn that decade, AfricanAmericans were making significant headway
political strength. App. 305a. The court thus found
clear break separating North Carolina shameful
past discrimination from the past quarter century.
App. 307a. Similarly, the court found link between
African-Americans socioeconomic disadvantages and
their ability cast ballot and effectively exercise
the electoral franchise after 2013-381, given the
multitude voting and registration options available the State[.] App. 326a 327a. Indeed, the nine
Gingles factors, the court found only one the
existence
racially
polarized
voting
unambiguously supported plaintiffs. App. 307a 308a.
Applying the last Gingles factor with particular
rigor, the court found none North Carolina
justifications for the reforms was tenuous. App.
332a. the contrary, the court found the provisions
served legitimate goals such deterring voter fraud
(App. 336 337a, 376a), safeguarding voter confidence
(App. 373a, 467a 468a), making early voting fairer,
more efficient, and less subject political
gamesmanship (App. 344a), and eliminating
administrative problems (App. 353a 359a, 383a
385a).
Finally, the court considered whether, under the
totality the circumstances, the eliminated
mechanisms the prior early-voting schedule, sameday registration, out-of-precinct voting had
fostered minority participation. The court found
evidence that they had done so, particularly given
figures showing increased minority turnout and
registration the 2014 elections. App. 295a; see also
App. 292a (early voting), 378a (out-of-precinct voting),
525a (same-day registration). discriminatory motive
The district court then analyzed whether 2013381 had been motivated racially discriminatory
intent. App. 438a. The court applied the factors from
Village Arlington Heights Metropolitan Housing
Development Corp., 429 U.S. 252 (1977), and was not
persuaded that racial discrimination was motivating
factor. App. 470a.
First, the court considered whether the law bore
more heavily one race. considered plaintiffs
strongest fact that African-Americans had
previously used some eliminated mechanisms rates
higher than whites, App. 440a, but concluded that
North Carolina remaining mechanisms continue
provide African Americans with equal opportunity participate the political process. Id.
Plaintiffs also sought prove discriminatory
intent through evidence that some legislators had
requested racial data the use certain voting
practices. But the district court found impossible
determine, from plaintiffs evidence, the character
much the data the legislature actually received.
App. 442a. Some the data, particularly same-
day registration, was not available the legislature
until after 2013-381 had been drafted and debated.
App. 444a 445a. Whatever the available data
included, however, the district court found that [a]ny
responsible legislator would have needed that type
information. App. 443a (emphasis added). First,
because photo-ID laws are regularly challenged the
basis alleged racial disparities, legislators would
need know the disparities order account for
such challenges. Id. Second, the time the
requests, North Carolina was still subject
preclearance, meaning that evaluating racial impact
was prerequisite evaluating the likelihood that
any voting change would pre-cleared[.] Id.
Second, the court considered whether the North
Carolina legislature had consistent pattern
actions disparately impacting minorities. Referring
its detailed Gingles findings, App. 292a 387a, the
court found little evidence official discrimination
since the 1980s. App. 458a.
Third, the court considered the challenged laws
historical background. The North Carolina
legislature had been the process developing
2013-381 the time this Court decision Shelby
County June 25, 2013; after that decision, the
legislature revised and expanded the bill, passing
month later. App. 104a 117a. Plaintiffs argued that
the legislature expansion the bill following Shelby
County showed discriminatory purpose. App. 459a.
The district court rejected that argument, finding the
more persuasive explanation that the end
preclearance simply altered the burden proof
calculus for North Carolina legislators considering
changes voting laws. App. 461a. The court also
found that all concede that the legislature followed
all procedural rules enacting the challenged laws.
App. 462a.
Fourth, the court found that contemporary
statements legislators showed discriminatory
intent. App. 466a 468a. the contrary, the court had
already found legislators explanations for the law
non-tenuous under Gingles. App. 332a 387a.
Finally, the court considered the cumulative
evidence intent and found that [t]he State
proffered justifications for the combined mechanisms
under review are consistent with the larger purpose achieving integrity, uniformity, and efficiency the
political process. App. 468a. The Fourth Circuit Opinion July 29, 2016, the Fourth Circuit reversed.
left undisturbed the district court conclusion that the
challenged provisions had discriminatory impact.
However, the court rejected clearly erroneous the
district court factual conclusion the
legislature motive enacting 2013-381. App.
26a. Indeed, the court concluded that the record
permits only one resolution the issue, App. 57a
58a: that those provisions were enacted with racially
discriminatory intent violation the Equal
Protection Clause and the [Voting Rights
Act]. App. 26a. threshold matter, the court framed its intent
analysis against the background North Carolina
record racially polarized voting. App. 30a. found
that the legislature knew that African-American
voters were highly likely vote for Democrats, and
that, recent years, African Americans had begun
registering and voting unprecedented numbers,
leading much the recent success Democratic
candidates North Carolina. App. 39a. That, the
Court reasoned, gave the Republican-majority
legislature
incentive
for
intentional
discrimination. App. 31a.
Proceeding the Arlington Heights factors, the
court first considered the historical background the
reforms. While conceding that past discrimination has
only limited weight after Shelby County, the court
nonetheless stated that the State pre-1965 history pernicious discrimination informs our inquiry.
App. 33a. The court also said could not ignore that
the reforms were enacted within days North
Carolina release from preclearance, because
otherwise North Carolina could pick where left
off 1965 the detriment African American
voters North Carolina. App. 33a 34a (alteration
omitted) (quoting LWV, 769 F.3d 242).
Contrary the district court finding, the Fourth
Circuit found the record replete with instances since
the 1980s where the North Carolina legislature has
attempted suppress and dilute the voting rights
African Americans. App. 34a. Principally, the court
pointed to: (1) over fifty objection letters sent the
U.S. Department Justice DOJ between 1980 and
2013 contesting proposed election law changes
North Carolina, App. 35a; and (2) fifty-five successful
cases brought under during the same period, App.
36a.
Second, the Fourth Circuit considered the
sequence events leading enactment the
reforms. The court assigned special weight the fact
that 2013-381 followed immediately after the
Shelby County decision removed North Carolina from preclearance. Id.
Third, the court considered legislative history.
While little history existed, the court focused some
legislators requests for and use race data[.] App.
47a. The court inferred from this that the legislature
deliberately targeted practices disproportionately
used African Americans. App. 48a. The court did
not acknowledge address the district court
contrary findings about this data, including the
finding that [a]ny responsible legislator would have
needed consider such data light North
Carolina still-existing preclearance obligations. App.
443a.
Fourth, the Fourth Circuit thought the challenged
laws bore more heavily African-Americans because
those voters disproportionately used the removed
voting mechanisms and disproportionately lacked
DMV-issued photo ID. App. 48a. The court concluded
this was enough show unequal impact and rejected irrelevant the district court finding that the
evidence demonstrated that North Carolina
remaining mechanisms continue provide African
Americans with equal opportunity participate
the political process. App. 48a 51a, 440a.
Having concluded that racial discrimination
motivated the North Carolina reforms, the Fourth
Circuit shifted the burden the State prove that
the law would have been enacted absent that motive.
App. 55a. The court conceded that, rational
justification can imagined for some the
challenged provisions, and also that the district court
addressed the State justifications for each provision length. App. 56a. Nonetheless, the Fourth Circuit
independently reviewed the record and concluded that
the evidence plainly establishes race but-for
cause 2013-381. App. 58a. The panel therefore
invalidated the challenged provisions their entirety.
App. 67a, 71a.
REASONS FOR GRANTING THE PETITION
The Court should grant certiorari for three
separate reasons. First, the Fourth Circuit decision
effectively nullifies Shelby County. Second, resolves issue extraordinary importance whether
State has deliberately structured its election laws
disenfranchise African-Americans way that
profoundly misguided and that threatens numerous
State election laws. Third, exacerbates existing
conflict among federal circuits over analysis vote
denial claims.
The Fourth Circuit Decision Effectively
Nullifies Shelby County.
The Fourth Circuit decision cannot reconciled
with Shelby County, which invalidated the formula for
application the Voting Rights Act. See USC
10303, 10304. particular, the panel restores the preclearance standard which North Carolina
longer required satisfy reading into
separate provision with different structure,
purpose, and application. Holder Hall, 512 U.S.
874, 883 (1994) (Kennedy, J., joined Rehnquist,
C.J.). This sufficient reason grant certiorari. See Ct. 10(c) (certiorari appropriate federal
circuit has decided important federal question way that conflicts with relevant decisions this
Court
The purpose was prevent States subject
preclearance from enacting voting-procedure changes
that would lead retrogression the position
racial minorities with respect their effective
exercise the electoral franchise. Beer United
States, 425 U.S. 130, 141 (1976). Those States could
obtain preclearance only proving that the
[proposed] change had neither the purpose nor the
effect retrogression. Shelby Cty., 133 Ct. 2620
(alteration
and
quotes
omitted).
Potential
retrogression was analyzed comparing State
proposed new voting rules the baseline existing contemplated rules and determining whether the
new rules would abridge[ the right vote relative the status quo[.] Reno Bossier Par. Sch. Bd., 528
U.S. 320, 334 (2000) Bossier see Shelby County,
133 Ct. 2626 27; Georgia Ashcroft, 539 U.S.
461, 482 (2003); Reno Bossier Par. Sch. Bd., 520 U.S.
471, 478 (1997) Bossier Hall, 512 U.S. 883.
One consequence the anti-retrogression rule was
establish one-way ratchet that locked incremental
improvements minority voting opportunities.
The test discrimination, not retrogression. case, the baseline not the status quo, but the
hypothetical alternative what the right vote
ought be[.] Bossier II, 528 U.S. 334; Hall, 512
U.S. 884 Unlike cases benchmark does
not exist definition dilution cases.
State voting rules are discriminatory, the status quo
itself must changed. Bossier II, 528 U.S. 334; see
also Hall, 512 U.S. 880 81. But the threshold,
States subject only may choose from wide range nondiscriminatory voting regulations, long
they not act with discriminatory purpose.
While the panel purported apply actuality employed variant anti-retrogression
analysis. Neither the district court nor the panel found
evidence that North Carolina reforms have actual
discriminatory effect, even any direct evidence that
they were intended so. Instead the panel
identified potentially retrogressive effect, and inferred
discriminatory intent from that.
Over and over again, the panel returned the fact
that North Carolina had changed its law remove
voting mechanisms that had existed before. App. 33a,
50a-52a, 54a 55a. accused the legislature reerect[ing] barriers minority electoral
participation that previous legislatures had lowered.
App. 39a 40a. gave little weight the fact that
the district court observed 2013-381 and
2015-103 simply aligned North Carolina with election
laws other States, many which not offer early
voting, same-day registration, out-of-precinct voting, preregistration. See App. 51a 52a, 201a, 229a,
253a, 259a. Instead, the panel asserted instead that
removing voting tools meaningfully differs from
not initially implementing such tools. App. 52a. That
analysis plainly derives not from but the
provision which uniquely deal[t] only and specifically
with changes voting procedures[.] Bossier II, 528
U.S. 334. And that reasoning also effectively
restores version the previous preclearance regime enjoining the reforms based their potential
effects alone. Considering the panel indignation that
North Carolina enacted its reforms the heels
Shelby County which, the panel put it, release[d]
the State from preclearance, App. 33a, 41a 42a, 45a
that appears exactly what the panel had mind.
The panel also contradicted Shelby County
deeper sense. Shelby County stands for anything,
means that even States with shameful histories
discrimination, history did not end 1965. 133
Ct. 2628. The Constitution does not allow the sins Civil Rights-era legislators visited their
grandchildren and great-grandchildren. Id. 2929.
Nor does permit Congress perpetually assume
that former jurisdictions maintain minority voting
rights purely under threat. Id. 2627.
But the eyes the panel, where North Carolina concerned, always 1965. The Fourth Circuit
opinion conjures menacing world where race and
politics are inextricab[ly] linked, App 14a, where
powerful undercurrents tempt legislators racial
warfare, App. 40a, and where the current majority
targets its racial opponents with almost surgical
precision, App. 16a. sum, the Fourth Circuit barely
attempted hide its view that North Carolina
Republican legislators having been vexed for six
decades itched pick where [they] left off 1965 soon they were given the opportunity.
App. 33a 34a (quotes and alteration omitted). That
rule decision, however, comes not from Shelby
County but from William Faulkner: The past never
dead. not even past.
The Court should grant certiorari resolve the
conflict between the Fourth Circuit decision and
Shelby County.
II. Inappropriately Convicting North
Carolina
Deliberate
Racial
Discrimination, The Fourth Circuit
Provides Roadmap For Invalidating
Many State Election Laws. second reason grant certiorari that the
Fourth Circuit has decided extraordinarily
important question way that egregiously
misguided and that threatens numerous State
election laws. See Ct. 10(a), 10(c). There
worse charge against State than deliberate racial
discrimination, especially how the State governs
elections. This Court decisions wisely limit such
charge the clearest-cut cases. Yet the Fourth Circuit
did not hesitate level here: accused and
convicted the North Carolina legislature
deliberately designing its laws not just
disenfranchise African-Americans, but usher
new era Jim Crow. App. 46a. That decision
affront North Carolina citizens and their elected
representatives and provides roadmap for
invalidating election laws numerous States. The Fourth Circuit Intent Analysis
Egregiously Misguided.
Two things particular demonstrate how
extraordinary the Fourth Circuit decision is, how far goes beyond this Court precedents, and why calls
out for review. First, the notion that these election laws are
reminiscent the era Jim Crow ludicrous.
the contrary, North Carolina reforms leave with
voting system the national mainstream and,
indeed, one more open than many other States.
Three practices eliminated North Carolina
reform same-day registration, out-of-precinct voting,
and pre-registration are already disallowed most
States. supermajority States disallows same-day
registration and pre-registration 16-year-olds (38
and 40, respectively), and majority does not count
out-of-precinct ballots (26). See also, e.g., Ohio
Democratic Party Husted, 834 F.3d 620, 628 (6th
Cir. 2016). fourth practice early voting was not
eliminated but shortened from days, while
maintaining aggregate voting hours from prior
elections. App. 343a. Again, this puts North Carolina the mainstream: States offer early-voting
periods ranging from four days, and North
Carolina remains one only States offer
weekend early voting. making these sensible
reforms, North Carolina was not receding into the
racist past; was aligning with current State
practices.
Nor North Carolina photo-ID law reversion
the Jim Crow past. this Court held Crawford,
such laws constitutionally further weighty interests preventing voter fraud and promoting public
See
generally
NATIONAL CONFERENCE STATE
LEGISLATURES, ELECTION LAWS AND PROCEDURES OVERVIEW
(Aug. 19, 2016) NCSL Overview (cataloguing election
practices), www.ncsl.org. The district court noted that accurately
counting State election practices subject interpretation and
coding, App. 229a, its figures are marginally different from
the NCSL App. 201a 203a, 229a, 253a, 259a.
See NCSL Overview. North Carolina also continues one States offer no-excuse absentee voting, see id., practice
whose availability mitigates any effects from reducing earlyvoting days.
confidence the integrity the electoral process.
Crawford, 553 U.S. 191, 197. And compared the
law upheld Crawford, North Carolina law has far
more features designed maximize the right vote,
including:
its lengthy implementation period, App.
164a, 454a;
the million the legislature set aside
educate voters about the requirement,
App. 133a;
the State efforts identify voters who lack
qualifying and provide means for them
obtain free one, App. 136a;
the legislature expansion the list
qualifying IDs before the requirement
effective date, App. 117a; and
the
lenient
reasonable
impediment
exception that allows voters lacking
cast provisional ballot. App. 118a, 529a;
South Carolina, 898 Supp. 30)
(preclearing identical requirement).
Under Crawford, hard imagine any but the
most draconian photo-ID laws being invalidated
purposefully discriminatory. The panel decision
invalidate this lenient law that basis while
equating with Jim Crow, App. 46a shows that
something has gone badly awry. Second, the best our knowledge, the Fourth
Circuit decision marks the first time history that election law has been invalidated purposefully
discriminatory without either discriminatory effect
direct evidence discriminatory intent. Such
dramatic step beyond
warrants review.
this
Court
precedents
This Court has admonished that discriminatory
purpose means more than intent volition intent awareness consequences. Pers. Adm Mass. Feeney, 442 U.S. 256, 279 (1979) (citing United
Jewish Orgs. Williamsburgh, Inc. Carey, 430 U.S.
144, 179 (1977) (Stewart, J., concurring)). Rather,
means decision-maker acted because of, not merely spite of, its adverse effects upon identifiable
group. Id. deeply implausible that North
Carolina law was enacted because its
potential impact African-American voters when the
legislature actively ensured would not adversely
affect that group, see App. 117a, 118a, 133a, 136a, and
where not shred legislative history suggests such
intent. even more shocking for court appeals
override district court finding paradigmatic
fact question legislative motive based paper
record. The district court finding that racial
discrimination was [not] motivating factor
2013-381, App. 470a, derived from meticulous
examination more than 25,000-page record that
features the testimony expert and 112 fact
witnesses across two trials spanning days. App.
87a. Nonetheless, based its own evaluation the
evidence, the Fourth Circuit announced that this
massive record permits only one resolution, namely
that race [was] but for cause 2013-381. App.
57a 58a (quoting Pullman-Standard Swint, 456
U.S. 273, 292 (1982)).
Furthermore the panel cited only one case which appellate court reversed district court finding
and rendered its own finding intentional racial
discrimination: Hunter Underwood, case where
Alabama conceded that the century-old law issue
was motivated discriminatory intent, and where
the law disparate effect persists today. 471 U.S.
222, 227, 229, 231 (1985). App. 27a. less flagrant
situations, however, this Court has found error when district court resolve[s] the disputed fact
[discriminatory] motivation the summary judgment
stage. Hunt Cromartie, 526 U.S. 541, 552
(1999). And that rule has even greater force, here,
where court appeals reviews the district court
resolution fact questions after lengthy trial
proceedings involving live witnesses. that situation,
even reviewing court convinced the lower court
erred, the court appeals not relieved the usual
requirement remanding for further proceedings
the tribunal charged with the task factfinding the
first instance. Pullman-Standard, 456 U.S. 293.
The panel decision casts pall over every
electoral measure the North Carolina legislature may
pass the future, and the weakest possible factual
and legal grounds. The Court should grant review and
reverse it. The Fourth Circuit Intent Analysis
Provides Roadmap For Invalidating
Election Laws Numerous States.
Respondents will likely try characterize the
Fourth Circuit decision fact-bound and affecting
only North Carolina. The opposite true. Most the
evidence the Fourth Circuit relied find
discriminatory intent could readily deployed
invalidate the election laws numerous States. The
potential multi-State effects the Fourth Circuit
decision thus furnish independent reason for
granting certiorari. The Fourth Circuit principal theory for
identifying discriminatory intent was that racially
polarized voting North Carolina provided
incentive for Republicans discriminate against
African-Americans reliable Democratic voters. App.
33a, 39a 40a. The court opinion hammers this
theme repeatedly. App. 14a, 30a, 32a, 38a. hard imagine more destabilizing addition the vote denial analysis than racial
polarization. Polarized voting, after all, not
problem unique the South. Nw. Austin Mun. Util.
Dist. No. One Holder, 557 U.S. 193, 228 (2009) NAMUDNO (Thomas, J., concurring). AfricanAmerican voters typically favor the Democratic
Party forty points more every part the
Nation, both States formerly subject
preclearance and States that were not. polarized
voting implies discriminatory targeting whenever
See Kristen Clarke, The Obama Factor: The Impact the
2008 Presidential Election Future Voting Rights Act
Litigation, Harv. Pol Rev. 59, Table (2009).
See Stephen Ansolabehere, Nathaniel Persily, Charles
Stewart III, Regional Differences Racial Polarization the
2012 Presidential Election: Implications for the Constitutionality Section the Voting Rights Act, 126 Harv. Rev. 205
(2013); see also John Powers, Note: Statistical Evidence
Racially Polarized Voting the Obama Elections, and
Implications for Section the Voting Rights Act, 102 Geo. L.J.
881, 892 (2014) (noting courts have recently found racial bloc
voting patterns Section cases litigated against jurisdictions Wyoming, New York, and Ohio
election laws are reformed, any new voting regulation
proposed Republicans any State would
suspect definition. The partisan toxicity that
wrongheaded standard would introduce into the
Voting Rights Act can scarcely imagined.
Moreover, making vote denial analysis turn
racial polarization fits badly with this Court
precedents. Even the context vote dilution, where
polarization has been part this Court analysis
since Gingles, see 478 U.S. 48, courts have not yet
resolved what polarization is, how identify it, and
how much enough matter. See Powers, supra, 888 89. Transposing polarization into vote denial
cases, the Fourth Circuit has done here, hardly
promising idea.
Moreover, the Fourth Circuit polarization
analysis again conflicts with Shelby County.
sure, the dissent that case terms strikingly
similar the Fourth Circuit thought polarization
incentivizes racial discrimination and thus justifies
preclearance. Shelby Cty., 133 Ct. 2643
(Ginsburg, dissenting). But the majority disagreed,
sharply distinguishing such second-generation
barriers involving vote dilution, not access the
ballot. Id. 2629. And elsewhere this Court has
cautioned that racially polarized voting not
evidence
unconstitutional
discrimination.
NAMUDNO, 557 U.S. 228 (Thomas, J., concurring)
(citing City Mobile, Ala. Bolden, 446 U.S. 55,
(1980)); see also Rogers Lodge, 458 U.S. 613, 623
(1982) (rejecting inference based polarization but
affirming finding discrimination other grounds).
Indeed, the Fourth Circuit virtually conceded
much, see App. 31a, but drew the inference anyway.
Its willingness open that door for the first time
should not unreviewed. The panel supposed historical evidence
official discrimination North Carolina, moreover,
could used strike down voting laws any former
preclearance State. The Fourth Circuit identified
key evidence over fifty [DOJ] objection letters sent
under the Voting Rights Act from 1980 2013.
App. 35a. But having received such letters over the
past three decades shows present discriminatory
intent, then numerous former States are even
greater jeopardy having election changes
invalidated under such Alabama (64 objection
letters since 1980), Mississippi (125), Georgia (97),
Louisiana (100), Texas (134), and South Carolina (76).
See
Section
Objection
Letters,
https://www.justice.gov/crt/section-5-objection-letters.
The Fourth Circuit insisted this reasoning would not
freeze election law place today, App. 72a,
but why wouldn such freeze the inevitable result the Fourth Circuit guilt-by-past-conduct
standard?
Assuming they are probative all, the letters
show nothing like the pervasive intentional
discrimination suggested the Fourth Circuit.
begin with, the vast majority focuses purported
disparate
effects
rather
than
purposeful
discrimination. See, e.g., DOJ Ltr. Apr. 11, 1986.
Eleven the fifty were subsequently withdrawn
DOJ.
See
Objection
letter
table,
https://www.justice.gov/crt/voting-determinationletters-north-carolina. the thirty-nine remaining
objections, only ten actually concerned the State
opposed municipality, county, school board.
Finally, contrary the Fourth Circuit suggestion
that several [letters] since 2000 concerned North
Carolina, App. 35a, letter concerned the State,
opposed locality, after 1996. other words, the
State went from 1996 2013 seventeen years
without receiving letter from DOJ.
Finally, objection does not equate finding anything. means only that the recipient
government has not carried its burden show that
proposed change lacks discriminatory purpose
effect. See Georgia United States, 411 U.S. 526
(1973); CFR 51.19. App. 35a. court can infer
discriminatory intent North Carolina that basis, can any former preclearance jurisdiction. The same true the Fourth Circuit use
lawsuits against North Carolina. App. 36a. past
decades lawsuits have challenged election laws
many States, many successfully. See, e.g., Robert
Kengle, Voting Rights Georgia: 1982 2006,
Cal. Rev. Soc. Just. 367, 402 (2008) (discussing
dozens cases Georgia). Are courts infer that
any election law enacted today any State that lost lawsuit the past motivated discriminatory
intent? The Fourth Circuit standard plainly suggests
the answer yes.
Furthermore, when one considers the evidence
the Fourth Circuit cited, obvious why the mere
existence prior lawsuits does not reliably indicate
intentional discrimination. Relying law review
article, the court purported identify fifty-five
successful lawsuits North Carolina since 1980.
See App. 36a (citing Anita Earls, Emily Wynes,
LeeAnne Quatrucci, Voting Rights North Carolina:
1982 2006, Cal. Rev. Soc. Just. 577 (2008)).
Even cursory review that article shows the Fourth
Circuit was mistaken. While the article surveys fiftyfive lawsuits, see id. (App. B), not every one concerned
intentional discrimination. Many the cases were
resolved favor the defendant. See, e.g., Gause
Brunswick County, F.3d 1178 (4th Cir. Aug. 13,
1996) (table); Lewis Alamance, F.3d 600 (4th Cir.
1996). Only small number involved legislative
action. See, e.g., Gingles, 478 U.S. 30; Haith Martin,
618 Supp. 410 (E.D.N.C. 1985) (enjoining election
judges under non-precleared laws). And only
handful involved the State, opposed local
government body. Finally, the surveyed cases not
contain one relevant and successful suit after 1997
sixteen years before North Carolina enacted the
reforms under review. this enough support
inference intentional discrimination North
Carolina, few States are safe. The Fourth Circuit also relied evidence that
African-Americans
North
Carolina
See, e.g., Bartlett Stephenson, 535 U.S. 1301 (2002)
(addressing whether whole county provision state constitution
was voided 2); Lake N.C. State Bd. Elections, 798
Supp. 1199 (M.D.N.C. 1992) (unsuccessful lawsuit challenging
extension election hours). the four after 1997, two are irrelevant. See Bartlett, 535
U.S. 1301 (whole county provision state constitution not voided 2); Kindley Bartlett, No. 5:05-cv-00177 (E.D.N.C. 2005)
(county chairman challenged non-precleared provisional ballot
law). The other two did not turn out favorably for the plaintiff.
See Sample Jenkins, No. 5:02-cv-00383 (E.D.N.C. 2002)
(dismissed following preclearance approval); White Franklin
County, No. 5:03-cv-00481 (E.D.N.C. 2004) (mooted
intervening events).
disproportionately lack DMV-issued that
African-American voters use some mechanisms
restricted 2013-381 rates higher than whites;
and that the legislature was aware those figures
when enacting the law. App. 47a 48a. Using this sort evidence show discriminatory intent, however,
would leave many States election laws vulnerable
well.
For instance, the district court pointed out,
plaintiffs own expert testified that possession
disparities exist nationwide and that could not
find combination acceptable photo IDs that will
make these disparities away. App. 448a; see also,
e.g., Husted, 834 F.3d 631 (noting evidence that
African Americans may use early in-person voting
higher rates than other voters The Fourth Circuit
analysis, therefore, would likely invalidate voter-ID
laws any State where they are enacted, regardless the assortment IDs selected. App. 448a. for the legislature awareness those
statistical differences, the district court pointed out
that [a]ny responsible legislator would need know
about such data account for inevitable legal
challenges election laws particularly considering
that the allegedly suspect requests occurred when
North Carolina was still under preclearance. App.
443a. other words, the Fourth Circuit based its
finding actions any legislator should have taken
evaluate the potential racial impact election
change especially State then subject
preclearance. Inevitably, respondents will point the Fourth
Circuit supposed smoking gun, which the State
supposedly conceded that did away with one the
two days Sunday voting i.e., when shortening the
early-voting period because [c]ounties with Sunday
voting 2014 were disproportionately black. App.
40a (quoting Defs. Prop. Findings Fact and
Conclusions Law); App. 711a. fact, that smoking
gun just smoke and mirrors. hypothesize that North Carolina intended
keep African-Americans from voting eliminating
only the first two Sunday early-voting days
absurd. [I]n 2010, African American voted the
first Sunday early voting North Carolina,
because county offered voting that day. App.
218a. All voters, furthermore white and AfricanAmerican alike were more likely vote during the
last ten early-voting days than during the first seven.
App. 208a. The panel interpretation thus implies
that North Carolina intended disenfranchise
African-Americans eliminating voting day that
not single African-American voter had actually used
during the previous midterm general election, while
not only retaining voting the days that AfricanAmericans use most, but increasing the voting hours those days. App. 224a 225a (describing increase
early voting availability, including Sunday voting,
between 2010 and 2014); App. 402a 404a. The
argument defeats itself.
The Fourth Circuit also grossly distorts what
North Carolina actually stated. App. 711a. The State
proposed findings included racial statistics
illustrate how the then-Democrat-controlled board
elections ensured that Sunday voting would
available heavily Democrat and/or AfricanAmerican counties but not counties more likely
vote for Republicans. See id.; see also App. 344a 345a
(finding such manipulation had occurred). North
Carolina cannot faulted for making that point, nor
for its response namely, make [early voting] more
convenient for all voters concentrating early
voting the days all voters are likeliest use. App.
712a (emphasis added). the State explained, those
efforts led increase the number days for
Saturday and Sunday early voting, and the number
counties that held Saturday Sunday voting. App.
224a 225a, 402a 404a. There smoking gun
here only more evidence the care and
evenhandedness that went into these sensible
electoral reforms.
III.
The Fourth Circuit Decision Exacerbates
Circuit Confusion About The Relevance
Statistical Disparities Claims. third reason grant certiorari that the Fourth
Circuit decision adds another layer conflict the
already muddled approach federal circuits
statistical evidence claims. Four circuits the
Fifth, Sixth, Seventh, and Ninth already disagree
whether statistical racial disparities the use
particular
voting
mechanisms
can
prove
discriminatory effect under The Fourth Circuit
holding that legislators awareness statistical
disparities may prove discriminatory purpose even
the absence discriminatory effect complicates
matters still further. The Court should grant
certiorari clarify that mere disparities the use
voting mechanisms are insufficient prove
discriminatory purpose effect under
The Ninth and Seventh Circuits have held that
statistical racial disparities possession required
voter-ID are insufficient prove vote denial
claim. Gonzalez Arizona, the Ninth Circuit
affirmed the district court conclusion that Arizona
photo-ID law did not violate solely because
Latinos, among other ethnic groups, are less likely
possess the [required] forms identification[.] 677
F.3d 383, 407 (9th Cir. 2012) (internal quotations
omitted), aff other grounds sub nom. Arizona
InterTribal Council Arizona, Inc., 133 Ct. 2247
(2013). Instead, the court required evidence that
Latinos ability inability obtain possess
identification for voting purposes resulted
Latinos having less opportunity participate the
political process and elect representatives their
choice. Id. (emphasis added). Similarly, Frank
Walker, the Seventh Circuit rejected the district
court conclusion that disparities AfricanAmericans possession qualifying IDs established denial claim. 768 F.3d 744, 752 (7th Cir. 2014),
cert. denied, 135 Ct. 1551. The Seventh Circuit
concluded that those findings not show denial
anything under which, instead, requires showing
that minority voters have less opportunity than
whites get photo IDs. Id. 753. Ohio Democratic Party Husted, the Sixth
Circuit followed the same approach rejecting the
claim that Ohio six-day reduction its early-voting
period violated the Equal Protection Clause. 834
F.3d 620. The court reversed the district court
inference discriminatory burden from the mere
fact that African Americans have shown preference
for voting [during the eliminated period] rate
higher than other voters. Id. 627 28. the Sixth
Circuit view, this analysis begged the pertinent
question, which whether the voting change actually
disparately impacts African Americans giving
them less opportunity than others participate. Id. 639 (emphasis added).
The Fifth Circuit has taken different approach. Veasey Abbott, fractured banc court relied
part statistical disparities conclude that Texas
voter-ID law disparately impacts African-American
and Hispanic registered voters[.] 830 F.3d 216, 251,
264 n.61 (5th Cir. 2016), pet. for certiorari filed, Sept.
23, 2016. With respect the discriminatory purpose
inquiry, the court remand[ed] for reweighing the
evidence. Id. 231, 230 (plurality) (quoting
Pullman-Standard, 456 U.S. 292). Nonetheless, the
court added that the circumstantial evidence
supporting discriminatory intent included the fact
that drafters and proponents [the Texas law]
were aware the likely disproportionate effect the
law minorities. Id. 236.
The Fourth Circuit decision this case further
muddies the standards for vote denial claims two
respects. First, the Fourth Circuit has adopted yet
third approach statistical racial disparities the
use voting mechanisms. Unlike the Sixth, Seventh,
and Ninth Circuits but like the Fifth the Fourth
Circuit considers such disparities highly probative
that minorities have been denied voting opportunities
under But unlike the Fifth Circuit, which
considered such disparities both discriminatory
impact and purpose, the Fourth Circuit considers
them purpose even when the challenged laws
lack discriminatory impact.
Second, the Fourth Circuit has confused the
standard review for district court findings. Whereas
the Fifth Circuit followed this Court usual
requirement ordering remand instead reweighing intent evidence, see Pullman-Standard, 456
U.S. 292, the Fourth Circuit declared that the
massive district court record permitted only one
factual conclusion namely that the North Carolina
legislature acted with racially discriminatory intent.
App. 57a 58a.
The confusion has been deepened still further
the Fourth Circuit decision Lee Virginia State
Board Elections, which different panel upheld Virginia photo-ID law quite similar North
Carolina See F.3d __, 2016 7210103 (4th Cir.
Dec. 13, 2016). The Lee panel was bound the
decision under review here but sought distinguish various minor grounds e.g., that the Virginia
legislature acted before Shelby County was decided,
that racial data had been reviewed the
legislature, and on. See id. 10. That reasoning
only illustrates that the Fourth Circuit analysis does
not lead predictable resolutions photo-ID cases,
even within the same circuit.
The Court should grant certiorari resolve this
conflict over the relevance statistical racial
disparities the application the Voting Rights
Act.
CONCLUSION
The petition for writ certiorari should
granted.
Respectfully submitted,
ROBERT STEPHENS
Office the Governor North Carolina
20301 Mail Service
Center
Raleigh, 27699
KARL BOWERS, JR.
Bowers Law Office LLC
Post Office Box 50549
Columbia, 29250 KYLE DUNCAN
Counsel Record
GENE SCHAERR
STEPHEN SCHWARTZ
SchaerrDuncan LLP
1717 Street NW, Suite
900
Washington, 20006
(202) 714-9492
KDuncan@SchaerrDuncan.com
THOMAS FARR
PHILIP STRACH
MICHAEL MCKNIGHT
Ogletree Deakins Nash
Smoak Stewart,
4208 Six Forks Road
Raleigh, 27609
Counsel for Petitioners