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Voter IDSaying that the right to vote is fundamental, the 4th U.S. Circuit Court of Appeals today ordered the federal district court in Greensboro to stay provisions of the state’s recently enacted voting changes which eliminated same-day registration and prohibited the counting of out-of-precinct provisional ballots.

In a  2-1 decision joined by U.S. Judge Henry Floyd, U.S. District Judge James A. Wynn, Jr. wrote:

Courts routinely deem restrictions on fundamental voting rights irreparable injury.And discriminatory voting procedures in particular are “the kind of serious violation of  the Constitution and the Voting Rights Act for which courts have granted immediate relief.” This makes sense generally and here specifically because whether the number is thirty or thirty-thousand, surely some North Carolina minority voters will be disproportionately adversely affected in the upcoming election. And once the election occurs, there can be no do-over and no redress. The injury to these voters is real and completely irreparable if nothing is done to enjoin this law.

So ruling, the court left intact other provisions of the so-called “monster voting law,” including these: the reduction of early-voting days; the expansion of allowable voter challengers; the elimination of the discretion of county boards of elections to keep the polls open an additional hour on Election Day in “extraordinary circumstances”; the elimination of pre-registration of sixteen- and seventeen-year-olds who will not be eighteen years old by the next general election; and the soft roll-out of voter identification requirements that go into effect in 2016. The judges said that plaintiffs may prevail on these claims later, but did not make enough of a showing to get a preliminary injunction.

Critical to the majority’s decision was the finding that the state’s elimination of same-day registration and its prohibition against counting out-of-precinct ballots likely violated Section 2 of the Voting Rights Act:

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 pointed to 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.”

U.S. District Judge Diana Gribbon Motz issued a dissenting opinion, noting that while she was troubled by portions of the lower court’s ruling she did not believe that ruling met the “clearly erroneous” standard needed for reversal.  Motz also agreed with the state that changes to current voting law should not be made this close to the election.

Attorneys for the challengers praised the court’s decision to block key parts of the new voting law.

“The court’s order safeguards the vote for tens of thousands of North Carolinians,” Dale Ho, director of the ACLU’s Voting Rights Project, said in a statement. “It means they will continue to be able to use same-day registration, just as they have during the last three federal elections.”

“This is a victory for voters in the state of North Carolina,” Southern Coalition for Social Justice staff attorney Allison Riggs added. “The court has rebuked attempts to undermine voter participation.”

But Senate President Phil Berger and House Speaker Thom Tillis, while pleased with the court’s refusal to block several provisions of law, said they were troubled by the ruling on same-day registration and out-of-precinct balloting. “We intend to appeal this decision as quickly as possible to the Supreme Court,” they said in a statement.

Read the full decision here.

 

News

Supreme courtThe U.S. Supreme Court doesn’t officially open its new term until Monday October 6, but the justices are already at work, opening this week with two items of interest:  an Ohio-based voting law challenge that’s before Justice Elena Kagan on an emergency petition for a stay, and a conference scheduled for this morning to review several petitions for review on same-sex marriage.

At issue in the Ohio case is a recent law cutting back early in-person voting from thirty-five to twenty-eight days, barring voting on most Sundays in the coming weeks and eliminating voting in the early evening on any day.

A federal district court and the 6th U.S. Circuit Court of Appeals both found those voting changes unconstitutional, and the state is now asking the nation’s highest court to stay those rulings pending a review of the underlying merits — the upshot of which would be curtailed voting under the new law for the upcoming elections there. A decision is expected any time from Justice Kagan, who is the justice assigned for emergency relief in the Sixth Circuit.

A similar path is likely ahead for North Carolina’s challenged voting law, which is under review by the Fourth Circuit.  A decision on whether voting changes here will be in effect for the upcoming election is also expected at any time and then will head on an expedited basis to the Supreme Court, to be reviewed by Chief Justice John Roberts, who presides over requests for emergency relief from the Fourth Circuit.

For more on the Ohio case, read here.

Also before the court in conference today are seven petitions for review of lower court decisions on same-sex marriage — including three from the Fourth Circuit’s decision tossing Virginia’s marriage ban.

To read more about those petitions and the likelihood of the Court taking a same-sex marriage case this term, read here.

Commentary

The good folks at the ACLU have the details on the case which is also being lead by the North Carolina NAACP and civil rights lawyers at the Advancement Project:

The Fourth Circuit Court of Appeals will hear oral arguments on Thursday, September 25, on North Carolina’s restrictive voting law. The American Civil Liberties Union (ACLU) and the Southern Coalition for Social Justice (SCSJ) are challenging provisions of the law that eliminate a week of early voting, end same-day registration, and prohibit out-of-precinct voting. Implementing these provisions would unduly burden the right to vote and discriminate against African-American voters, in violation of the U.S. Constitution’s equal protection clause and the Voting Rights Act.

The ACLU and SCSJ argued the law should be placed on hold until trial next summer —and in time for the midterm elections in November —but a district court judge ruled the law could go into effect; the ACLU and SCSJ appealed.

We are asking the court to protect the integrity of our elections and safeguard the vote for thousands of North Carolinians by not allowing these harmful provisions to go into effect,” said Dale Ho, director of the ACLU’s Voting Rights Project.

WHO: American Civil Liberties Union and Southern Coalition for Social Justice

WHAT: Oral arguments in the Fourth Circuit Court of Appeals on North Carolina’s restrictive voting law

WHERE: The U.S. Courthouse, 401 W. Trade Street, Charlotte, N.C.

WHEN: Thursday, September 25, 1 p.m.

Background: North Carolina passed a restrictive voting law in August 2013. The ACLU and SCSJ challenged provisions of the law Read More

Uncategorized

EARLY VOTINGThe League of Women Voters and other groups and individuals challenging the state’s new voting law in federal court today appealed a lower court ruling rendering the law effective for the November elections.

They’ll ask the 4th U.S. Circuit Court of Appeals to expedite the matter with a view towards a quick ruling.

“We will be seeking expedited review to get a ruling that can be implemented well in advance of the elections,” said the ACLU’s Chris Brook, one of the attorneys in the case.

The league joins the NC-NAACP, which filed its notice of appeal yesterday, and students who joined the cases who appealed earlier in the week.

Together they’re appealing U.S. District Judge Thomas Schroeder’s August 8 ruling allowing voting changes to take effect in November.

For North Carolina voters, that means that there would be no same-day registration, early voting days would be reduced from 17 to 10, and votes cast out-of-precinct would not be counted.

“If one person’s right to vote is denied or abridged this election, this democracy suffers,” NC NAACP president Rev. Dr. William J. Barber, II said yesterday in a statement. “While restoring the rights of North Carolina voters and renewing the integrity of democracy in our state will require a long legal fight, we must start now by doing everything we can to block this law for the November election.”