[EL] Breaking 4th Cir. NC decision/more news

Wed Oct 1 10:32:40 PDT 2014

    Breaking: 4th Circuit, on 2-1 Vote, Partially Blocks NC Voting
    Changes: Analysis <http://electionlawblog.org/?p=66138>

Posted onOctober 1, 2014 9:38 am 
<http://electionlawblog.org/?p=66138>byRick Hasen 
<http://electionlawblog.org/?author=3>

The 4th Circuit on a 2-1 vote 
<http://electionlawblog.org/wp-content/uploads/NC-Opinion.pdf>(on a 
panel made up of all Democratic appointees) has issued an opinion 
requiring North Carolina to restore same day voter registration and the 
counting of out of precinct ballots in the upcoming election. The 
majority offers a generous but reasonable reading of the scope of 
section 2 of the Voting Rights Act. The main difference with the dissent 
is over the question whether making these changes now is going to cause 
confusion and impose a burden on election officials and the state in 
light of Supreme Court admonitions not to change election rules so close 
to the election.

This is a case that North Carolina could take to the 4th Circuit en 
banc, although given the press of time I expect they will go right to 
the Supreme Court. 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.

Here is some more detailed analysis:

1. The 2-1 vote of the district court reversed only some of the 
challenged voting practices: the elimination of same-day voter 
registration and the prohibition on counting out-of-precinct ballots. It 
upheld the district court's denial of a preliminary injunction to block 
"(i) the reduction of early-voting days; (ii) the expansion of allowable 
voter challengers; (iii) the elimination of the discretion of county 
boards of elections to keep the polls open an additional hour on 
Election Day in "extraordinary circumstances"; (iv) the elimination of 
pre-registration of sixteen- and seventeen-year-olds who will not be 
eighteen years old by the next general election; and (v) the soft 
roll-out of voter identification requirements to go into effect in 
2016." It said that plaintiffs may prevail on these claims later, but 
did not make enough of a showing to get a preliminary injunction. The 
dissenting judge would have blocked none of these changes before the 
election.

2.The majority quickly rejects the attempt to restore early voting in 
time for this election because of the hardship it says would fall on the 
state and election boards in rolling out early voting in just two weeks. 
As to the denial of a stop of the "soft roll out" of the voter id law, 
the court wrote that "While we share Plaintiffs' concern that requiring 
poll workers to implement the soft rollout without adequate training 
might result in some confusion, we are unable to find that the district 
court committed clear error in deeming this argument 'speculative.'"

3. As to the reversal of the district court on same day voting and out 
of precinct voting, the appellate court found the trial court abused its 
discretion in not granting a preliminary injunction on these practices, 
finding them a likely violation of Section 2 of the Voting Rights Act. 
(The majority did not reach whether the trial court was correct in 
rejecting the plaintiffs' constitutional claims, as that was not 
necessary for decision.} The majority first explained why vote denial 
claims should be brought under Section 2:

    Everyone in this case agrees that Section 2 has routinely been used
    to address vote dilution---which basically allows all voters to
    'sing' but forces certain groups to do so pianissimo. Vote denial is
    simply a more extreme form of the same pernicious violation---those
    groups are not simply made to sing quietly; instead their voices are
    silenced completely. A fortiori, then, Section 2 must support
    vote-denial claims.

The court then adopted a broad "totality of the circumstances" test for 
judging a section 2 vote denial claim, something very much like the 
trial court and Sixth Circuit adopted in the Ohio early voting case (now 
stayed by the Supreme Court, though the stay gets a bare citation in the 
opinion). And like the Sixth Circuit opinion, the 4th circuit here holds 
that NC's decision to make things harder, a kind of retrogression, is 
relevant to the "totality of the circumstances" test. (This is important 
because it can explain why a cutback in a voting practice could violate 
section 2 of the VRA while a state which always had a less generous 
voting practice is not in violation of section 2.)

4. Looking at the totality of the circumstances, the court concludes the 
history of the rollback after /Shelby County/is very relevant here:

    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.

5. Looking at local factors and history, and and undisputed evidence 
that the changes in same day registration and provisional balloting 
disproportionately fall on minority voters, the 4th circuit majority 
concluded there was likely a section 2 Voting Rights Act violation and 
the district court abused its discretion in concluding otherwise. It 
said that NC's bureaucratic inefficiencies and under-resourcing could 
not justify these rules, even if narrower voting practices exist 
elsewhere:  "At the end of the day, we cannot escape the district 
court's repeated findings that Plaintiffs presented undisputed evidence 
showing that same-day registration and out-of-precinct voting were 
enacted to increase voter participation, that African American voters 
disproportionately used those electoral mechanisms, and that House Bill 
589 restricted those mechanisms and thus disproportionately impacts 
African American voters."

6. Judge Motz, the dissenting judge offered two basic reasons for 
dissenting on the issue of same day voter registration and provisional 
balloting. First, the judge found that the trial court's decisions that 
the laws cumulatively would not hurt minority voters was not clearly 
erroneous. "The [trial] court rejected as unpersuasive evidence offered 
that constricting the early voting period assertedly would create long 
lines at the polls, McCrory, 997 F. Supp. 2d at 372, affect black voters 
disproportionately, id., or cut down on Sunday voting hours in the 
upcoming election. Id. at 373. So too with same-day registration: the 
district court rejected Appellants' assertions that eliminating same-day 
registration would cause registration rates among black North 
Carolinians to drop. Id. at 350. Whatever the wisdom of these factual 
findings, they are not clearly erroneous." The judge said she might have 
reached a different decision in reviewing the record, and that the judge 
should have looked at the laws cumulatively and not piece by piece.

7. Second, and perhaps more importantly, Judge Motz in dissent said that 
the Supreme Court's /Purcell v. Gonzalez/case means that the 4th Circuit 
should not be changing election rules so close to the election. (This is 
the key issue in the Wisconsin voter id appeal which could be heading to 
the Supreme Court at any moment.) The dissent said that this ruling will 
change the status quo, when sate election officials are ill prepared to 
make these changes, and it is being done for a duly enacted statute 
which has not been finally found to be illegal. The majority's response 
is to (a) distinguish Purcell as a case where the Ninth Circuit provided 
no reasons and (b) to argue that these new rules, although risking some 
voter confusion, will err on the side on enfranchising voters and 
thereby serve as a safety net.

[This post has been updated.]

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Posted inelection administration 
<http://electionlawblog.org/?cat=18>,The Voting Wars 
<http://electionlawblog.org/?cat=60>,voting 
<http://electionlawblog.org/?cat=31>,Voting Rights Act 
<http://electionlawblog.org/?cat=15>

    Arkansas Republican AG Candidate Booted from Voter Rolls Because of
    Residency Issues <http://electionlawblog.org/?p=66136>

Posted onOctober 1, 2014 9:15 am 
<http://electionlawblog.org/?p=66136>byRick Hasen 
<http://electionlawblog.org/?author=3>

See here 
<http://www.bluehogreport.com/2014/09/30/breaking-leslie-rutledges-voter-registration-canceled-candidacy-now-in-question/>.

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Posted inresidency <http://electionlawblog.org/?cat=38>

    American Judicature Society Shutting Down After 101 Years
    <http://electionlawblog.org/?p=66134>

Posted onOctober 1, 2014 9:13 am 
<http://electionlawblog.org/?p=66134>byRick Hasen 
<http://electionlawblog.org/?author=3>

Tony Mauro reports. 
<http://www.nationallawjournal.com/legaltimes/home/id=1202671953471/Judicial-Reform-Group-Shutting-Down-After-101-Years?mcode=1202615432600&curindex=0&back=NLJ>

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Posted inUncategorized <http://electionlawblog.org/?cat=1>

    Texas's Highest Criminal Court Affirms Reversal of Tom Delay
    Convictions <http://electionlawblog.org/?p=66130>

Posted onOctober 1, 2014 8:06 am 
<http://electionlawblog.org/?p=66130>byRick Hasen 
<http://electionlawblog.org/?author=3>

You can read the opinionhere 
<http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=9db32996-f1b0-4e30-b605-ee7a33b51111&coa=coscca&DT=OPINION&MediaID=8ffa1473-5657-4448-9782-673f8863e318>. 
Update: Concurrencehere 
<http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=a6721ecb-0fea-4455-84d9-28392388a62f&coa=coscca&DT=OPINION&MediaID=fcf9114f-b00b-422d-866d-6246dec3babd>and 
dissenthere 
<http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=42c564c4-cb22-45a6-bf21-bc405b62e22a&coa=coscca&DT=OPINION&MediaID=331f1fc3-2854-488f-ac87-62812727a689>. 
[The dissenting opinion begins: "You can always tell when an opinion is 
written with the outcome decided before any legal analysis is done 
because it reads like a medical report written by a doctor who has 
never conducted a physical examination of the patient. This is precisely 
how the court of appeals' opinion in this case comes across."]

Back when the intermediate appellate court in Texas reached the same 
conclusion, I wrotea piece for /Slate/ 
<http://www.slate.com/articles/news_and_politics/jurisprudence/2013/09/tom_delay_s_conviction_reversed_on_appeal.html>which 
began:

    Some liberals are no doubt disappointed to hear that a Texas
    appellate court today, on a 2-1 vote, reversed the conviction
    <http://electionlawblog.org/?p=55380> of former U.S. House Majority
    Leader Tom DeLay. They shouldn't be. There were good reasons to
    think
    <http://www.slate.com/articles/news_and_politics/jurisprudence/2012/04/john_edwards_should_not_be_prosecuted_for_campaign_finance_violations_.html> that
    DeLay's prosecution in Texas for violations of state campaign
    finance law, like the federal prosecutions of former presidential
    candidate John Edwards
    <http://www.slate.com/articles/news_and_politics/jurisprudence/2012/04/john_edwards_should_not_be_prosecuted_for_campaign_finance_violations_.html> and
    former Alabama Gov. Don Siegelman, involved politically motivated
    charges brought by overzealous prosecutors. Today's ruling is a
    window into the world of corporate access to elected officials, for
    sure. But it confirms that the big problem is not what's illegal,
    but what's legal. Check this out: The appeals court saved Tom
    DeLay's hide by concluding that corporations were giving money to
    get "face time" with him.

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Posted incampaign finance <http://electionlawblog.org/?cat=10>,chicanery 
<http://electionlawblog.org/?cat=12>

-- 
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org

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