Fourth Circuit Restores Early Voting and Out of Precinct Voting in North Carolina

vote suppression in NC

In a 2-1 decision,  the Federal Appeals Court for the Fourth Circuit granted a temporary injunction to restore same day registration and out of precinct voting in North Carolina.  It did not strike down the restrictions on early voting because under North Carolina’s earlier rules early voting would have to start in 2 weeks.  The court recognized that reduced early voting is part of the total effort to suppress votes in North Carolina.  However, they couldn’t reverse that portion of the law because there is not enough time for state officials to get ready.

The court considered local factors, history and undisputed evidence that changes to same day registration and provisional ballots disproportionately disenfranchise minority voters and concluded these measures likely violated Section 2 of the Voting Rights Act.  The court said the lower court got the law wrong and abused its discretion when it failed to reach that conclusion. Writing for the majority,

“In refusing to consider the elimination of voting mechanisms successful in fostering minority participation, the district court misapprehended and misapplied Section 2 (of the Voting Rights Act), ”By inspecting the different parts of House Bill 589 as if they existed in a vacuum, the district court failed to consider the sum of those parts and their cumulative effect on minority access to the ballot box.”

The majority also noted the role of the Supreme Court’s ruling in Shelby v. Holder, which gutted Section 5 of the Voting Rights Act in the passage of this law.  Those words bear repeating.

Immediately after Shelby County, i.e., literally the next day, when “history” without the Voting Rights Act’s preclearance requirements picked up where it left off in 1965, North Carolina rushed to pass House Bill 589, the “full bill” legislative leadership likely knew it could not have gotten past federal preclearance in the pre-Shelby County era. McCrory, 997 F. Supp. 2d at 336. Thus, to whatever extent the Supreme Court could rightly celebrate voting rights progress in Shelby County, the post-Shelby County facts on the ground in North Carolina should have cautioned the district court against doing so here.

It is heartening to see there are judges who understand the purpose of this law, given the combination of restrictive provisions within it, along with the fact that it was passed so quickly after the Supreme Court gutted Section 5 of the Voting Rights Act.

Judge Diana Gribbon Motz, offered two reasons for her dissent. First she said, the trial court’s decision that the law’s cumulative effect would not hurt minorities was not “clearly erroneous.”  However, she did acknowledge that George W. Bush appointee, Judge Thomas Schroeder should have looked at the laws cumulatively instead of piece by piece.

The judge said she might have reached a different decision in reviewing the record, and that the judge should have looked at the totality of North Carolina’s election laws and their cumulative effect on voting rights instead of interpreting the law in a vacuum.

Her second reason is more important from a legal perspective.  She said the 4th circuit should not be changing the rules this close to an election because state officials will be ill equipped to implement changes in the status quo this close to the election.

While this is very good news, if NC goes to the Supreme Court, it is likely to reverse this decision by the same 5-4 breakdown we saw earlier this week in the Ohio case.

As noted by Rick Hasen earlier on Wednesday,

I would not be surprised to see the Supreme Court reverse this 4th Circuit panel decision on the same 5-4 conservative/liberal lines that we saw earlier this week in the Ohio voting case. That would not necessarily mean that the Court would reject the broad reading of section 2 of the Voting Rights Act offered today by the 4th Circuit. The split could be over the issue, also present in the 7th Circuit Wisconsin voter id case (which could head to the Supreme Court today) about the dangers of courts changing election rules just before the election.

In fact, the Charlotte Post reports North Carolina plans to appeal to the Supreme Court on Thursday.


13 Replies to “Fourth Circuit Restores Early Voting and Out of Precinct Voting in North Carolina”

  1. The DOJ is going to have to get in on this. The state will now follow OH and take this to the SCOTUS.

  2. Will the Supreme Idiot 5 acknowledge the error made in their Shelby decision, since the states that previously needed preclearance immediately moved to limit voting rights? If they take the case, the lawyer arguing against North Carolina’s restrictive rule should make them squirm, by asking for that clarification.



  4. NC voters have had two years to get properly registered and they still need to wait until the election to register? This has zero to do with trying to “disenfranchise” anyone. It has to do with fair elections. Candidates and the voters deserve fair elections. Voter fraud is alive and well in North Carolina. The claims that fraud does not exist come from the ill-informed. The records prove that NC has thousands of cases of dead and duplicate active voters. The GOP is thankfully attempting to make elections fair, legal and valid.

  5. Really? Well lets see the fraud!

    Changing early voting has nothing to do with fraud, and everything to do with disfranchising voters.

    So far not one state claiming voter fraud has been able to produce said fraud in the courts. Lets see your data

  6. Voter fraud is real! There was a case of it just announced, where a voter and campaign worker had registered to vote in three different states! Don’t remember what party she was with, but I do remember it had the letters “OP” somewhere in its initials. Hmmm. . .

  7. If you are referring to the Republican AG candidate in Arkansas, she registered in two and possibly three locations and has since been removed from the voter rolls in Arkansas and now is probably not allowed to run for AG in that state. That being the case, how is voter ID, etc. going to stop that kind of voter fraud?

  8. “The GOP is thankfully attempting to make elections fair, legal and valid.”

    Now that’s funny. Are you a comedian or do you not realize you are on a site full of informed people?

  9. Out of touch and ill-informed. This one had to turn to the courts just to get proper districting for minorities the right to vote. In the US vs. Sampson County NC., federal Jude Durpee was right (paraphrased)… “the wagon train back to Civil War times is alive and well in North Carolina” and I will grant the plantiff his consent relief to stop that racist train. This righteous ruling is just another wheel off that racist wagon train. If NC decide to fight and take it to the SCOTUS, yes it would probably be ruled in NC its favor. Not because of it being the right of things, but because our Supreme Court is full of questionable openly bias mentalities. Using all their legal mumbo-jumbo to justify their bias to the “N degree”. Never in the modern history of has the Supreme Court’s incorruptibility been up under so much perlustration.

  10. The usual GOP and Fox news misdirection is at work in the claim of dead people registered and multiple location registrations.

    The Board of Elections does not routinely purge the registrations of people who have died or moved. If you want to show fraud, show us where those people have actually voted.

    The 4/5 split most SCOTUS verdicts show are not Liberal vs Conservative, they are Democrat vs Republican. Even the Supreme Court is tied up in the insane war between the political parties that has paralyzed the country.

  11. The republicans are trying every dirty trick in the book to gain election in Ohio and North Carolina because they see the handwriting on the wall: Get out arsholes. I see no reason that voting regulations cannot be standardized at the federal level across all states uniformly. As an aside, I have asked the democratic party why they couldn’t at least put a monkey on the ballot against John Boehner. The results might be refreshing. Where a single candidate is running unopposed, negative voting should be allowed so that candidate has to garner some positive cumulative votes to win. Stick that in your teepee, John Boehner.

  12. …sigh!..Poor poor sad Wendy. Does it hurt to be that clueless? Well if not then it should, perhaps the constant pain will bring you back to reality.

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