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North Carolina State Conference of NAACP v. Cooper

United States District Court, M.D. North Carolina

December 31, 2019

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,
v.
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.

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          Andrew 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 Plaintiffs.

          Amar Majmundar, Olga E. Vysotskaya De Brito, Paul M. Cox, Stephanie A. Brennan, N.C. Department of Justice, Raleigh, NC, for Defendants.

         MEMORANDUM OPINION, ORDER, AND PRELIMINARY INJUNCTION

         Loretta C. Biggs, United States District Judge.

         Plaintiffs 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.

         I. BACKGROUND

         In 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").[1] (ECF No. 1 ¶¶ 62, 64.) As the voter-ID amendment is

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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.[2] (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).

         The 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."[3] (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.)

         II. PRELIMINARY INJUNCTION STANDARD

         A 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.

         Whether 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

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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)).

         Furthermore, 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 "LWV"].

         III. HISTORY OF VOTER-ID LEGISLATION IN NORTH CAROLINA

         In 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 at 71).

         In 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 on voters")).

         The General Assembly first attempted to enact a voter-ID bill in 2011 while the

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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."[4] 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.

         Legal 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.

         The 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

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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.

         On November 8, 2018, the voter-ID amendment was adopted by popular vote—55% of the electorate voted in favor.[5] (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 added).

         The 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.[6] 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.)

         In the 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.

         IV. DISCUSSION

         Plaintiffs 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."[7] (ECF No. 1 ¶¶ 7-8.)

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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).

         The 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.

         A. Discriminatory Intent Based on Race

         Facially 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.

         In 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

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(quoting Pers. Adm'r of Mass. v. Feeney, 442 U.S. 256, 279, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979)).

         If "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 Cir. 2016)).

         1. Historical Background

         "A 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).

         As the 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), https://www.justice.gov/crt/voting-determination-letters-north-carolina). 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.

         Moreover, 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

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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 at 18.)

         Another "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. (Id.)

         Amici 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").)

         All 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. 824's enactment.

         2. The Sequence of Events Leading to S.B. 824's Enactment

         The "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.)

         Plaintiffs 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,

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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.

         S.B. 824 was given five days of legislative debate. (See ECF No. 108 at 10); S.B. 824 Legislative History, https://www.ncleg.gov/BillLookUp/2017/s%20824. Plaintiffs 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 ...


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