United States District Court, M.D. North Carolina
NORTH CAROLINA STATE CONFERENCE OF the NAACP, Chapel Hill-Carrboro NAACP, Greensboro NAACP, High Point NAACP, Moore County NAACP, Stokes County Branch of the NAACP, Winston-Salem-Forsyth County NAACP, Plaintiffs,
Roy Asberry COOPER III, in his official capacity as the Governor of North Carolina; Robert Cordle, in his official capacity as Chair of the North Carolina State Board of Elections; Stella Anderson, in her official capacity as Secretary of the North Carolina State Board of Elections; Kenneth Raymond, Jefferson Carmon III, and David C. Black, in their official capacities as members of the North Carolina State Board of Elections, Defendants.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
T. Tutt, James W. Cooper, Jeremy C. Karpatkin, Ralf O. Dunn,
Arnold & Porter Kaye Scholer LLP, Caitlin Swain-McSurely,
Penda Denise Hair, Forward Justice, Washington, DC, John C.
Ulin, Arnold & Porter Kaye Scholer LLP, Los Angeles, CA,
Leah J. Kang, ACLU of North Carolina, Raleigh, NC, Irving L.
Joyner, Irving Joyner, Attorney at Law, Cary, NC, for
Majmundar, Olga E. Vysotskaya De Brito, Paul M. Cox,
Stephanie A. Brennan, N.C. Department of Justice, Raleigh,
NC, for Defendants.
OPINION, ORDER, AND PRELIMINARY INJUNCTION
C. Biggs, United States District Judge.
initiated this lawsuit for declaratory and injunctive relief
against the above-named Defendants in their official
capacities, challenging the validity of specific provisions
of Senate Bill 824, titled "An Act to Implement the
Constitutional Amendment Requiring Photographic
Identification to Vote," ("S.B. 824" or
"the Act"). (See ECF No. 1); 2018 N.C.
Sess. Laws 144. Specifically, Plaintiffs allege that portions
of S.B. 824 violate § 2 of the Voting Rights Act
("VRA"), 52 U.S.C. § 10301, as well as the
Fourteenth and Fifteenth Amendments of the United States
Constitution. (Id. ¶¶ 105-146.) Before the
Court is Plaintiffs' Motion for a Preliminary Injunction.
(ECF No. 72.) The Court heard oral argument on December 3,
2019. For the reasons outlined below, Plaintiffs' motion
will be granted in part and denied in part.
November 2018, North Carolina voters approved a ballot
measure amending the North Carolina State Constitution to
require voters to provide photographic identification before
voting in person (the "voter-ID
amendment"). (ECF No. 1 ¶¶ 62, 64.) As
the voter-ID amendment is
not self-executing, see N.C. Const. art. VI,
§§ 2(4), 3(2), on December 5, 2018, the North
Carolina General Assembly (the "General Assembly"
or the "legislature") passed S.B. 824 as
implementing legislation. (See ECF No. 1 ¶ 1.)
The Governor vetoed S.B. 824 on December 14, 2018.
(Id. ¶ 78.) Nevertheless, the General Assembly
codified S.B. 824 into law—Session Law
2018-144—by an override of the Governor's veto on
December 19, 2018. (Id. ¶ 1); 2018 N.C. Sess.
Laws 144. S.B. 824's central requirement is that every
voter present a qualifying photo ID before casting a ballot.
2018 N.C. Sess. Laws 144 § 1.2.(a).
instant lawsuit was filed in this Court one day after S.B.
824 became law. (ECF No. 1 at 37.) In their Complaint,
Plaintiffs challenge the provisions of S.B. 824 which
"impose voter-identification requirements," as well
as the provisions "that expand the number of poll
observers and the number of people who can challenge
ballots." (Id. ¶¶ 106-07.)
Plaintiffs allege that "[t]hese provisions, separately
and together, will have a disproportionately negative impact
on minority voters," (id. ¶ 80),
ultimately resulting in "the effective denial of the
franchise and dilution of [African American and Latino]
voting strength," (id. ¶ 7).
Plaintiffs' Complaint further alleges that the challenged
provisions "impose discriminatory and unlawful burdens
on the right to vote that are not justified by any legitimate
or compelling state interest." (Id. ¶ 8.)
Plaintiffs seek this preliminary injunction to prevent
Defendants "from implementing, enforcing, or giving
effect to the [challenged] provisions of S.B. 824."
(Id. ¶ 147.)
PRELIMINARY INJUNCTION STANDARD
preliminary injunction is an "extraordinary remedy that
may only be awarded upon a clear showing that the plaintiff
is entitled to such relief." Winter v. Nat. Res.
Def. Council, Inc., 555 U.S. 7, 22, 129 S.Ct. 365, 172
L.Ed.2d 249 (2008). To make a sufficient showing, a plaintiff
must establish: (1) a likelihood of success on the merits;
(2) that irreparable harm will result in the absence of an
injunction; (3) that the balance of equities tips in their
favor; and (4) that an injunction is in the public interest.
Id. at 20, 129 S.Ct. 365. Each factor is considered
independently; even if a plaintiff has shown likelihood of
success on the merits and irreparable harm, the balance of
equities and the public interest can still weigh in favor of
denying a preliminary injunction. See id. at 23-24,
31 n.5, 129 S.Ct. 365.
to grant a preliminary injunction is within the sound
discretion of the district court. Westmoreland Coal Co.,
Inc. v. Int'l Union, United Mine Workers of Am., 910
F.2d 130, 135 (4th Cir. 1990). Traditionally, courts employ
preliminary injunctions for the limited purpose of
maintaining the status quo—the "last uncontested
status between the parties which preceded the
controversy"—and preventing irreparable harm
during the course of litigation, thereby preserving the
possibility of a meaningful judgment on the merits.
Pashby v. Delia, 709 F.3d 307, 320 (4th Cir. 2013)
(quoting Aggarao v. MOL Ship Mgmt. Co., 675 F.3d
355, 378 (4th Cir. 2012)); In re Microsoft Corp.
Antitrust Litig., 333 F.3d 517, 525 (4th Cir. 2003).
Because the issuance of a preliminary injunction "is a
matter of equitable discretion[,] it does not follow from
success on the merits as a matter of course."
Winter, 555 U.S. at 32, 129 S.Ct. 365. Rather,
"[i]n each case, courts `must balance the competing
claims of injury and must consider the effect on each party
of the granting or withholding of the requested
relief.'" Id. at 24, 129 S.Ct. 365 (quoting
Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531,
542, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987)).
the Supreme Court has instructed federal courts to "pay
particular regard for the public consequences in employing
the extraordinary remedy of injunction." Id.
This carefulness is especially warranted in the voting-rights
context, where court orders "can themselves result in
voter confusion" and, where "once [an] election
occurs, there can be no do-over and no redress." See
Purcell v. Gonzalez, 549 U.S. 1, 4-5, 127 S.Ct. 5, 166
L.Ed.2d 1 (2006); League of Women Voters of N.C. v. North
Carolina, 769 F.3d 224, 247 (4th Cir. 2014) [hereinafter
HISTORY OF VOTER-ID LEGISLATION IN NORTH CAROLINA
recent decisions, the Supreme Court and the Fourth Circuit
have set forth the history of voter suppression efforts in
the South generally and North Carolina specifically. See
Shelby Cty. v. Holder, 570 U.S. 529, 552, 133 S.Ct.
2612, 186 L.Ed.2d 651 (2013); North Carolina State Conf.
of NAACP v. McCrory, 831 F.3d 204, 223-24 (4th Cir.
2016). However, to fully understand and contextualize S.B.
824, its mechanics, its proposed implementation, and the
motivations of those who enacted it, a brief review of that
history is necessary here. No one disputes that North
Carolina "has a long history of race discrimination
generally and race-based vote suppression in
particular." McCrory, 831 F.3d at 223. For
"[i]t was in the South that slavery was upheld by law
until uprooted by the Civil War, that the reign of Jim Crow
denied African-Americans the most basic freedoms, and that
state and local governments worked tirelessly to
disenfranchise citizens on the basis of race."
Shelby Cty., 570 U.S. at 552, 133 S.Ct. 2612. North
Carolina was no exception; as discussed further below, the
state has "shameful" chapters—both distant
and contemporary —in its "long and cyclical"
history. See McCrory, 831 F.3d at 223; (ECF No. 91-2
light of this history, Congress subjected forty North
Carolina jurisdictions to "preclearance" under
§ 5 of the VRA. McCrory, 831 F.3d at 215. As a
result, the state was not permitted to make changes to voting
procedures or qualifications without first demonstrating that
the changes "had neither the purpose nor effect of
`diminishing the ability of any citizens' to vote `on
account of race or color.'" Id. (quoting 52
U.S.C. § 10304 (formerly 42 U.S.C. § 1973c)).
Decades of preclearance enabled steady growth in minority
electoral participation, and "by 2013 African American
registration and turnout rates had finally reached
near-parity" with whites'. See id. at 214;
(ECF No. 91-4 at 10 (acknowledging "the recent parity in
black and white turnout" but characterizing it as
"fragile" and sensitive to "new costs imposed
General Assembly first attempted to enact a voter-ID bill in
2011 while the
state was still subject to preclearance. (ECF Nos. 91 at 13;
97 at 20.) The governor at the time vetoed that bill, and an
override attempt failed. (ECF No. 97 at 20.) In the spring of
2013, the legislature again took up voter-ID legislation in
the form of House Bill 589 ("H.B. 589"). See
McCrory, 831 F.3d at 227. In its early form, the
photo-ID requirements outlined in H.B. 589 were limited and,
compared to later iterations, "much less
restrictive." See id. at 216, 227; (ECF No.
91-1 at 44, tbl. 8 (comparing the early version of H.B. 589,
the version ultimately enacted, and S.B. 824)). However, on
June 25, 2013, the Supreme Court issued its opinion in
Shelby County v. Holder invalidating § 5's
coverage formula, after which North Carolina was no longer
subject to preclearance. 570 U.S. at 556-57, 133 S.Ct. 2612.
Following that ruling, the legislature "requested and
received racial data" on the use of various voting
practices in the state before "swiftly expand[ing]"
the single-issue H.B. 589 into "omnibus
legislation." McCrory, 831 F.3d at 216. The
newly expanded bill included "a number of voting
restrictions" that would fall most heavily on minority
voters, including stringent voter-ID requirements that
excluded "many of the alternative photo IDs used by
African Americans." See id. at 216-18. H.B. 589
was passed along strict party lines—Republicans in
favor, Democrats against—and signed into law on August
12, 2013. Id. at 218.
challenges soon followed, and in 2016, the Fourth Circuit
struck down H.B. 589 as unconstitutional. Id. at
215. As the Fourth Circuit recognized, and as Plaintiffs'
experts in this case confirm, voting in North Carolina was
and currently is racially polarized; if you know a
voter's race, you can often predict how that voter will
vote. See id. at 225; (ECF No. 91-1 at 52). This
dynamic, according to the Fourth Circuit, presents a
"political payoff for legislators who seek to dilute or
limit the minority vote." McCrory, 831 F.3d at
222. The legislature enacted H.B. 589 in pursuit of this
payoff; with an "almost surgical precision" it
crafted a voter-ID law that permitted only those forms of
identification which minority voters disproportionately
lacked. Id. at 214, 216. Taken together with North
Carolina's history of state-sponsored discrimination and
the recent rise in minority voting power, H.B. 589
"unmistakably" reflected the legislature's
motivation to "entrench itself ... by targeting voters
who, based on race, were unlikely to vote for the majority
party." Id. at 233. The Fourth Circuit
unequivocally held that this constituted impermissible racial
discrimination "in violation of the Equal Protection
Clause of the Fourteenth Amendment and § 2 of the
[VRA]." McCrory, 831 F.3d at 219.
bill's proponents sought Supreme Court review, but were
denied certiorari. See North Carolina v. N.C. State
Conference of NAACP, ___ U.S. ___, 137 S.Ct. 1399, 198
L.Ed.2d 220 (2017). Hours after that denial, legislative
leaders began "calling for a new law that would
incorporate some of the same ideas in a manner that they
thought could withstand judicial review." (See
ECF No. 91-1 at 15.) Although a Democratic governor was
elected in November 2016, Republicans retained their
supermajorities in both chambers, thanks, in part, to
unconstitutionally gerrymandered legislative maps.
(See ECF No. 91-1 at 73.) And because the North
Carolina Constitution permits the legislature, by
three-fifths vote in each chamber, to propose constitutional
amendments for popular approval, see N.C. Const.
art. XIII, § 4, Republican lawmakers were able to use
their supermajorities in June 2018 to place the voter-ID
amendment on the November ballot. See 2018 N.C.
Sess. Laws 128.
November 8, 2018, the voter-ID amendment was adopted by
popular vote—55% of the electorate voted in
favor. (ECF Nos. 97 at 9; 97-7 at 5.) The
language of the amendment proclaims that all North Carolina
voters "offering to vote in person shall present
photographic identification before voting." N.C. Const.
art. VI §§ 2(4), 3(2). Implementation of the
amendment, however, is left to the legislature, which
"shall enact general laws governing the
requirements of such photographic identification, which
may include exceptions." Id. (emphasis
November 2018 elections brought changes to the composition of
the legislature as well. In August 2016, a three-judge
federal district court panel held that the General Assembly
unjustifiably relied on race to draw state legislative
district lines. See Covington v. North Carolina, 316
F.R.D. 117, 124 (M.D.N.C. 2016), aff'd ___ U.S.
___, 137 S.Ct. 2211, 198 L.Ed.2d 655 (2017). The court
ordered the maps to be redrawn, and, after a delay, new
versions were implemented in time for the 2018
elections. See Covington v. North
Carolina, 267 F.Supp.3d 664, 668 (M.D.N.C. 2017). The
Republican party retained majorities in both chambers under
the new maps, but lost its supermajorities. (See ECF
No. 91-1 at 70-71.)
waning days of the lame-duck 2018 legislative term, the
General Assembly enacted S.B. 824 "to implement the
constitutional amendment requiring photographic
identification to vote." See 2018 N.C. Sess.
Laws 144, Title. The Governor vetoed the bill, expressing his
view that it "was designed to suppress the rights of
minority, poor and elderly voters" and would "trap
honest voters in confusion and discourage them with new
rules." See Governor's Veto Message for
SB824, Dec. 14, 2018. However, as one of its last acts, the
Senate's supermajority voted to override the
Governor's veto on December 18, 2018. The House followed
suit on December 19, 2018, and S.B. 824 became law.
contend that the "the provisions of S.B. 824—both
independently and cumulatively—violate Section 2 of
the [VRA] ... [as well as] the Fourteenth and Fifteenth
Amendments of the United States
Constitution." (ECF No. 1 ¶¶ 7-8.)
Because S.B. 824 is facially race-neutral, Plaintiffs must
"establish that the State... acted with a discriminatory
purpose" in order to demonstrate a likelihood of success
on their constitutional claims. See Reno v. Bossier
Parish Sch. Bd., 520 U.S. 471, 481-82, 117 S.Ct. 1491,
137 L.Ed.2d 730 (1997) (citing City of Mobile v.
Bolden, 446 U.S. 55, 62, 100 S.Ct. 1519, 64 L.Ed.2d 47
(1980) (plurality opinion) (explaining that facially neutral
actions only violate the Fourteenth and Fifteenth Amendments
if motivated by discriminatory purpose). In contrast, "a
violation of § 2 [of the VRA] c[an] be proved by showing
discriminatory effect alone," without having to
show a discriminatory purpose. Thornburg v. Gingles,
478 U.S. 30, 35, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986)
(emphasis added); see also Lee v. Virginia State Bd. of
Elections, 843 F.3d 592, 599 (4th Cir. 2016).
Court will begin its discussion, therefore, with
Plaintiffs' likelihood of success in demonstrating that
discriminatory purpose was a motivating factor behind the
passage of S.B. 824. Afterwards, the Court will consider
whether S.B. 824's likely effects would be independently
sufficient to violate § 2.
Discriminatory Intent Based on Race
neutral laws that are motivated by invidious intent are
"just as abhorrent, and just as unconstitutional, as
laws that expressly discriminate on the basis of race."
McCrory, 831 F.3d at 220 (citing Vill. of
Arlington Heights v. Metro. Housing Dev. Corp., 429 U.S.
252, 264-66, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977);
Washington v. Davis, 426 U.S. 229, 241, 96 S.Ct.
2040, 48 L.Ed.2d 597 (1976)). While "[p]roof of racially
discriminatory intent or purpose is required to show a
violation of the Equal Protection Clause," Arlington
Heights, 429 U.S. at 265, 97 S.Ct. 555, rare is the
modern case in which the government has been candid about its
discriminatory motives. See Hunt v. Cromartie, 526
U.S. 541, 553, 119 S.Ct. 1545, 143 L.Ed.2d 731 (1999)
("Outright admissions of impermissible racial motivation
are infrequent."); Johnson v. De Grandy, 512
U.S. 997, 1018, 114 S.Ct. 2647, 129 L.Ed.2d 775 (1994)
(acknowledging the shift away from "direct, overt
impediments" toward "more sophisticated devices
that dilute minority voting strength"). Thus, when
evaluating a discriminatory intent claim, a court must dig
deeper and make a "sensitive inquiry into such
circumstantial and direct evidence of intent as may be
available." Arlington Heights, 429 U.S. at 266,
97 S.Ct. 555.
Arlington Heights, the Supreme Court set forth a
non-exhaustive list of factors to guide this delicate
investigation. Reviewing courts should consider: (1) the
law's historical background; (2) the specific sequence of
events leading up to the law's enactment, including any
departures from normal legislative procedure; (3) the
law's legislative and administrative history; and (4)
whether the law's effect "bears more heavily on one
race than another." Id. at 266-68, 97 S.Ct.
555. The Court further cautioned that, because legislative
bodies are "[r]arely ... motivated solely by a single
concern," a challenger need only demonstrate that
"invidious discriminatory purpose was a
motivating factor." Id. at 265-66, 97 S.Ct. 555
(emphasis added). "[T]he ultimate question," then,
is whether a law was enacted "because of," and not
"in spite of," the discriminatory effect it would
likely produce. McCrory, 831 F.3d at 220
(quoting Pers. Adm'r of Mass. v.
Feeney, 442 U.S. 256, 279, 99 S.Ct. 2282, 60 L.Ed.2d 870
"racial discrimination is shown to have been a
`substantial' or [a] `motivating' factor behind
enactment of the law, the burden shifts to the law's
defenders to demonstrate that the law would have been enacted
without this factor." Hunter v. Underwood, 471
U.S. 222, 228, 105 S.Ct. 1916, 85 L.Ed.2d 222 (1985). At this
step, the court must "scrutinize the legislature's
actual non-racial motivations to determine whether
they alone can justify the legislature's
choices." McCrory, 831 F.3d at 221 (citing
Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle,
429 U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977)).
Further, because "racial discrimination is not just
another competing consideration," the typical judicial
deference accorded to legislators' "competing
considerations" is "no longer justified."
Id. at 221 (quoting Arlington Heights, 429
U.S. at 265-66, 97 S.Ct. 555). Put another way, "the
state's proffered non-racial interest" must be
"sufficiently strong to cancel out" any
discriminatory motive. Id. at 234 (quoting Mhany
Mgmt., Inc. v. Cty. of Nassau, 819 F.3d 581, 614 (2d
historical pattern of laws producing discriminatory results
provides important context for determining whether the same
decisionmaking body has also enacted a law with
discriminatory purpose." McCrory, 831 F.3d at
223-24. While "past discrimination cannot, in the manner
of original sin, condemn governmental action that is not
itself unlawful," the historical background against
which the challenged law was enacted is undoubtedly
"relevant to the question of intent." See
Abbott v. Perez, ___ U.S. ___, 138 S.Ct. 2305, 2324-25,
201 L.Ed.2d 714 (2018) (quoting Mobile, 446 U.S. at
74, 100 S.Ct. 1519 (plurality opinion)); Arlington
Heights, 429 U.S. at 267, 97 S.Ct. 555).
Fourth Circuit recognized in McCrory, and as earlier
discussed here, North Carolina has a sordid history of racial
discrimination and voter suppression stretching back to the
time of slavery, through the era of Jim Crow, and, crucially,
continuing up to the present day. See 831 F.3d at
223-27. Between 1980 and 2013, the Department of Justice
"issued over fifty objection letters to proposed
election law changes in North Carolina ... because the State
had failed to prove the proposed changes would have no
discriminatory purpose or effect." Id. at 224
(citing U.S. Dep't of Justice, Civil Rights Div., Voting
Determination Letters for North Carolina (Aug. 7, 2015),
During that same time period, "plaintiffs brought
fifty-five successful cases under § 2 of the
[VRA]," ten of which resulted in "judicial
decisions finding that electoral schemes ... had the effect
of discriminating against minority voters." Id.
(citing Anita S. Earls et al., Voting Rights in North
Carolina: 1982-2006, 17 S. Cal. Rev. L. & Soc. Just.
577 (2008)). And McCrory itself revealed that, in
2013, the state was engaged in the most "targeted"
and "comprehensive" efforts to suppress minority
voting since the 1960s. See id. at 223, 227.
the legislature has continued to violate both the VRA and the
Constitution. In 2016, for instance, federal courts concluded
that North Carolina's legislative and congressional maps
contained intentional racial gerrymanders. See Harris v.
McCrory, 159 F.Supp.3d 600, 605, 627 (M.D.N.C. 2016)
(concluding that "race predominated" in the General
Assembly's drawing of Congressional maps);
Covington, 316 F.R.D. at 178 (invalidating state
legislative maps "primarily [due] to the
explicit and undisputed" racial methodology "that
the General Assembly employed in the[ir] construction").
According to Plaintiffs' expert Barry Burden,
"[t]hese recent cases demonstrate that in the
post-Shelby environment the state legislature has
repeatedly acted—intentionally—to alter the
North Carolina election system in ways that
disproportionately dilute or deny [minority voting
power]." (See ECF No. 91-4 at 15.) Defendants
do not challenge this understanding. (See ECF No. 97
"critical" piece of historical evidence to consider
is the degree to which voting in North Carolina has been, and
remains racially polarized. See McCrory, 831 F.3d at
225. In 2016, the Fourth Circuit noted that, "racially
polarized voting between African Americans and whites remains
prevalent in North Carolina," where "race and party
are inexorably linked." Id. The evidence before
this Court confirms that, three years later, this is still
the case. As Plaintiffs' expert Allan Lichtman reports,
in the 2016 elections, non-white voters supported Republican
candidates for president and state-wide office at a level of
19%, compared to a support level of 63% among white voters.
(ECF No. 91-1 at 57, 60.) African American voters were
particularly hesitant to support Republican candidates
—on average, just 10% cast their ballots for the GOP.
posit that this stark polarization may, in fact, be
diminishing. (See ECF No. 117 at 33 (noting that,
according to Lichtman, a higher percentage of African
American voters supported the Republican presidential
candidate in 2016 than in 2008).) That could be the case.
However, the evidence still shows that the state's
electorate was extremely polarized at the time S.B. 824 was
enacted and will predictably remain so in the near future,
even if the trend is moving slightly toward lesser
polarization. (See ECF No. 91-1 at 52-57
(demonstrating the "substantial racial polarization that
exists in general elections in North Carolina").)
this is to say that "powerful undercurrents" of
racial discrimination and racial polarization have
historically pervaded North Carolina's political
climate—and still do. See McCrory, 831 F.3d
at 226. As the Fourth Circuit found with respect to H.B. 589,
S.B. 824 likewise "cannot be properly understood without
these considerations," as they indicate both a past and
current practice of and incentive to limit certain
groups' access to the franchise. Id.
Accordingly, the historical context weighs in favor of a
finding of discriminatory intent with respect to S.B.
The Sequence of Events Leading to S.B. 824's
"specific sequence of events leading up to the
challenged [law]" may also "spark suspicion"
of impropriety and "shed some light on [lawmakers']
purposes." Arlington Heights, 429 U.S. at 267,
269, 97 S.Ct. 555. Defendants rightly assert that "[t]he
process of SB824's enactment complied with [state]
constitutional and parliamentary requirements."
(See ECF Nos. 97 at 22; 97-18 at 10.) While "a
legislature need not break its own rules to engage in unusual
procedures," McCrory, 831 F.3d at 228, it must
be acknowledged that, here, there appears to have been no
deviation from the procedural letter: the bill passed three
separate readings in each chamber; contains the required
phrase "The General Assembly of North Carolina
enacts:"; was signed by the presiding officers of each
chamber; was submitted to the Governor for approval or veto;
and, after the Governor's veto, was enacted by override.
(ECF No. 97-18 at 3-4, 10.)
do not dispute that the General Assembly followed legislative
protocol. Nonetheless, they insist that the events leading to
S.B. 824's passage were abnormal. (See ECF No.
91 at 26-27.) First,
Plaintiffs contend that S.B. 824 was enacted in a
suspiciously hurried fashion—"the same sort of
`rushed ... legislative process' and lack of debate that
accompanied the passage of HB589." (Id. at 26.)
Indeed, numerous procedural irregularities accompanied the
passage of H.B. 589: a previously slim bill sat for months
before conspicuously swelling in size right after the
Shelby County decision; the newly
"omnibus" bill was pushed through with only
"one day for a public hearing, two days in the Senate,
and two hours in the House"; there was little
opportunity to present amendments to the bill; and the
ultimate vote "proceeded on strict party lines."
See McCrory, 831 F.3d at 227-28. However, if S.B.
824's path resembles this "rushed" process, it
is only to a lesser degree.
824 was given five days of legislative debate. (See
ECF No. 108 at 10); S.B. 824 Legislative History,
have submitted evidence that, while the bill was under
consideration, "[v]ery little time was permitted for
public questions or comments, and what time was given was
provided with insufficient or no notice to the public."
(See ECF No. 91-8 ¶¶ 32-37.) Be that as it
may, some public commentary was allowed, both for or
against the bill. (See ECF No. 97-16.) Moreover, in
contrast to the bulldozer-like process described in