Appeals court blocks part of N.C. voting law. Will Supreme Court step in?

The Fourth Circuit Court of Appeals struck down two provisions of North Carolina's 2013 voting law. The governor has said the state will appeal to the US Supreme Court.

Mike Spencer/The Wilmington Star-News/AP
New Hanover County residents line up for early voting at New Hanover County Government Center Monday, Oct. 22.

With five weeks left before the mid-term elections, a divided federal appeals court panel on Wednesday ordered a federal judge to block implementation of two provisions in North Carolina’s new voting law. 

The appeals court panel ruled 2 to 1 that North Carolina voters must be allowed to register to vote on the same day they cast their ballots. The panel also ruled that voters in the state must be allowed to cast a ballot – and have it counted – regardless of whether they vote in their assigned precinct. 

Both provisions had been eliminated under a 2013 Republican-backed voting law. North Carolina Democrats, civil rights groups, and other critics have denounced the new law as an attempt to suppress minority votes. Civil rights groups and the US Justice Department filed suit to block it. 

The new law also calls for a gradual phase-in of a statewide voter ID requirement and a reduction to ten days for early voting. The appeals court declined to issue an injunction blocking those and other provisions of the new law.

The court’s decision sets up a possible appeal by state officials to the US Supreme Court and a flurry of last-minute legal briefs filed in the final weeks before the election. North Carolina Gov. Pat McCrory on Wednesday said the state planned to appeal to the high court.

North Carolina is currently the focus of a closely-watched race between incumbent Sen. Kay Hagan, a Democrat, and State House Speaker Thom Tillis, a Republican. The outcome could tip the balance of power in the US Senate to either party.

The appeals court action reverses a decision by a federal judge in North Carolina, who conducted a week-long hearing into the effects of the new law and concluded in a 125-page opinion that any burdens suffered by minority or other voters under the new law were not significant enough to justify an injunction. 

In reversing a portion of the judge’s ruling, the two majority judges of the Richmond-based Fourth US Circuit Court of Appeals concluded that the judge “got the law plainly wrong in several crucial respects” and “abused his discretion” in failing to grant the requested injunction.

They also said he failed to take into account relevant social and historical conditions in North Carolina that make it harder for minorities, the elderly, and the young to fully and equally participate in elections. 

Writing for the majority, Judge James Wynn said that same-day registration had been a feature of North Carolina elections since 2007. He said experts had presented unrebutted testimony that African Americans in North Carolina used same-day registration at a higher rate than whites in the three federal elections held since 2007.

In 2012, 13.4 percent of African-American voters who voted early used same-day registration, compared with 7.2 percent of white voters.

In terms of out-of-precinct voting, Judge Wynn noted that experts had calculated that 0.342 percent of African Americans used out-of-precinct voting, while 0.21 percent of whites voted out-of-precinct.

The new voting law sought to require voters to cast their ballot in their assigned precinct, or the vote wouldn’t be counted.

Wynn concluded that under the new election law provision “a substantial number of African American voters will… be disenfranchised.”

Requiring voters to cast a ballot in an assigned precinct is not an unusual feature of election operations in America. Some jurisdictions allow confused voters to cast a provisional ballot under such circumstances, in others election officials instruct voters to go to their correct precinct to vote. If they do so, their votes are counted.

Wynn criticized the lower court for concluding that any effect on minority voters from the elimination of out-of-precinct voting would be minimal.

“Setting aside the basic truth that even one disenfranchised voter – let alone several thousand – is too many,” Wynn wrote, “what matters for purposes [of federal voting rights law] is not how many minority voters are being denied equal electoral opportunities but simply that ‘any’ minority voter is being denied equal electoral opportunities.”

In a dissent, Judge Diana Gribbon Motz said the plaintiffs had failed to meet the high burden necessary to obtain an injunction. In addition, she said, issuing an injunction and changing the rules so soon before an election was a recipe for confusion.

“An about-face at this juncture runs the very real risk of confusing voters who will receive incorrect and conflicting information about when and how they can register and cast their ballots,” Judge Motz wrote.

Wynn acknowledged that the state would have little time to implement the election changes the court was ordering.

“But for some of the challenged changes, such as elimination of same-day registration, systems have existed, do exist, and simply need to be resurrected,” he said.

“Similarly, counting out-of-precinct ballots merely requires the revival of previous practices, or, however accomplished, the counting of a relatively small number of ballots,” Wynn said.

The majority judges disagreed with Motz that their action would result in significant confusion.

“Voters who are confused about whether they can, for example, still register to vote on the same day will have their votes counted,” he said. “In this sense, our decision today acts as a safety net for voters confused about the effect [of the new law].”

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