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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.

          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 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 (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. 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.

         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 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. 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 (quoting Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 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 (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 (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. 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 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. 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, 137 S.Ct. 1399 (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.

         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 137 S.Ct. 2211 (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.) 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 (1997) (citing City of Mobile v. Bolden, 446 U.S. 55, 62 (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 (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 (1977); Washington v. Davis, 426 U.S. 229, 241 (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, 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 (1999) (“Outright admissions of impermissible racial motivation are infrequent.”); Johnson v. De Grandy, 512 U.S. 997, 1018 (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.

         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. 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 (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 (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 (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 (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). 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, 138 S.Ct. 2305, 2324-25 (2018) (quoting Mobile, 446 U.S. at 74 (plurality opinion)); Arlington Heights, 429 U.S. at 267).

         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 (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 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. 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, 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 McCrory, a total of twenty-three amendments to S.B. 824 were offered, thirteen of which were adopted before final passage. (See ECF No. 97-18 at 7-8.)

         Defendants also emphasize that, in addition to an open process, S.B. 824 enjoyed allegedly “bipartisan” support. The Fourth Circuit seems to have acknowledged that evidence of bipartisanship can cut against a finding of discriminatory intent. See Lee, 843 F.3d at 603 (“While there was a substantial party split on the vote enacting the law, two non-Republicans (one Democrat and one Independent) voted for [Virginia's photo-ID law].”); McCrory, 831 F.3d at 227 (noting that “[f]ive House Democrats joined all present Republicans” in voting for the pre-Shelby County version of H.B. 589). However, the Court is doubtful that the minimal aisle-crossing that took place during S.B. 824's passage should carry any significant weight. S.B. 824's lone Democratic sponsor, Senator Joel Ford, lost his primary in the 2018 election and admitted at deposition that he considered switching parties around the time the bill was being drafted. (See ECF No. 97-6 at 99-100.) Furthermore, when it came time to override the Governor's veto, only one Democrat in each chamber-Ford in the Senate and Representative Duane Hall in the House-voted to do so. (ECF Nos. 97-23; 97-24.) Defendants' depiction of S.B. 824 as a bill with “bipartisan support . . . through each important stage of the lawmaking process” is, therefore, a bit misleading. (ECF No. 97 at 28.)

         Plaintiffs' more potent sequence-related argument is less about “how” than “who.” In their view, the events which produced S.B. 824 are “part of an unbroken effort . . . to protect partisan gains by disadvantaging Black and Latino voters”-not just by the same party, but by the same individual legislators. (ECF No. 108 at 4-5.) Legislative voting records reveal that, while the composition of the General Assembly had changed somewhat in the time between 2013 and 2018, a majority of the Republican legislators who voted for S.B. 824 had previously voted for H.B. 589. (See ECF Nos. 91-1 at 17, tbl. 1.) Moreover, “many of the same legislative leaders who championed HB589 . . . were instrumental in enacting SB824.”[8] (See ECF No. 91 at 17-18.) This fact is particularly striking in light of Defendants' admission that there were no “changes in legislative policy preferences leading to the enactment of SB824.” (ECF No. 97 at 20.) Of course, views can change. However, “discriminatory intent does tend to persist through time.” United States v. Fordice, 505 U.S. 717, 747 (1992) (Thomas, J., concurring). It therefore seems “eminently reasonable to make the State bear the risk of nonpersuasion with respect to intent” when the very same people who passed the old, unconstitutional law passed the new. See id.

         Finally, Plaintiffs argue that the legislature would not have been able to enact S.B. 824 without supermajorities obtained via an “unlawful racial gerrymander.” (ECF No. 91 at 21.) Based on this Court's research, Defendants are correct that no federal court has held that “a state legislature is barred from legislating before curative map-making periods are completed, ”[9] (ECF No. 97 at 27-28), and Plaintiffs have not asked this Court to wade into that thicket. Nevertheless, the legislature's status as the product of unconstitutional mapmaking must be considered as an integral part of S.B. 824's origins. To paraphrase Plaintiffs: but for the effect of unconstitutional legislative maps, S.B. 824's supporters may not have obtained supermajorities in the House and Senate; may not have had the three-fifths support necessary to place a voter-ID amendment before the public; and may not have been capable of overriding the Governor's veto. (See ECF No. 108 at 7-13.) This argument, while not dispositive, is not without force.

         In sum, the “sequence of events” is mixed. The General Assembly appears to have met all parliamentary requirements, both in placing a constitutional amendment before voters[10] and in passing S.B. 824 as implementing legislation, and, while perhaps more “rushed” than usual, provided for legislative debate. Nevertheless, when viewed with a wider lens, the circumstances surrounding S.B. 824 are unusual: A majority of the Republican legislators who supported H.B. 589 also voted for S.B. 824, and the same legislative leaders spearheaded both bills. Further, those legislators were elected, at least in part, by way of district maps which were declared unconstitutional. And after voters ratified the voter-ID amendment, S.B. 824 was enacted along (virtually) strict party lines and over the Governor's veto. These sequential facts constitute evidence that S.B. 824 was motivated by discriminatory intent, despite the apparent lack of procedural irregularity.

         3. S.B. 824's Legislative History

         A challenged law's legislative history “may be highly relevant” to the question of intent, “especially where there are contemporaneous statements by members of the decisionmaking body, minutes of its meetings, or reports.” Arlington Heights, 429 U.S. at 268. The public statements made by S.B. 824's advocates and opponents reveal three main sentiments. First, Republican legislative leaders strongly disagreed with the Fourth Circuit's decision in McCrory. Immediately after the court's ruling was announced, Senate Leader Phil Berger and House Speaker Tim Moore issued a statement criticizing it as a decision “by three partisan Democrats” with “the intent to reopen the door to voter fraud.” (See ECF No. 91-1 at 14- 15.) Speaker Moore would later opine that the Fourth Circuit “has a more liberal political bent [and] acted outside of what has been upheld by the U.S. Supreme Court in similar matters.” (Id. at 15.) And in expressing his support for a constitutional amendment, Representative David Lewis, Chair of the House Committee on Elections, explained that “[t]he reason we are asking voters if they want to do this or not is, frankly, we think we passed a good law before.” (Id.)

         Second, Republican lawmakers remained “a hundred percent committed to the idea of voter ID” after McCrory and set out to craft a new bill which would “mute future court challenges.” (Id. at 16 (quoting Rep. Lewis).) The choice to put a voter-ID amendment before the public appears to have been motivated, at least in part, by a desire to insulate the future S.B. 824 from “inevitable [legal] challenges that will come from the left.” (Id.) In floor debate, for example, Representative John Blust expressed his belief that a constitutional amendment was needed “so that the North Carolina Supreme Court can't simply get rid of it by saying ‘Oh, the legislature just added an additional qualification to vote.'” (Id.) Defendants assert that these statements are consistent with a desire to “enact legislation that abides by legal precedent.” (ECF No. 97 at 21.) However, given the history and sequence of events discussed above, the fairer interpretation is that these statements reflect a desire to evade precedent, rather than abide by it.

         Third, the legislative history suggests that lawmakers' positions remained virtually unchanged between the time McCrory was issued and the time S.B. 824 was finalized. S.B. 824's opponents continued to voice their concern that, like H.B. 824, the new bill could cause “specific populations['] . . . participation in the vote [to] go down because of [an] additional burden on voting.” (ECF No. 97-16 at 663 (statement of Rep. Meyer); 673 (statement of Rep. Michaux) (“[T]he only reason that you can give is to suppress the vote.”).) One Democratic lawmaker was relieved, however, that S.B. 824 wasn't “as restrictive or burdensome as some [had] feared.” (See Id. at 139 (statement of Sen. Woodard).) At least one other thanked Republicans for an “earnest effort to try to expand [the bill] significantly beyond what it was when the last voter ID bill came before us, ” though concerns about S.B. 824's potential impact still remained. (See Id. at 170 (statement of Sen. McKissick).) Meanwhile, the record shows that supporters of the bill were adamant, as they had been in 2013, that voter fraud was a pressing issue in North Carolina. (See, e.g., id. at 318 (statement of Rep. Speciale) (“There was cheating, there was fraud going on.”); 335 (statement of Rep. Warren) (expressing his belief that “duplicate voting occurs, and it occurs in high enough volume that it can affect the outcome of an election”).)

         In addition to the statements discussed above, two proposed changes to the bill-one adopted, the other rejected-are worth mentioning. In McCrory, the Fourth Circuit questioned H.B. 589's requirement that ID was needed for in-person voting, but not for absentee voting. Absentee voting is disproportionately used by white voters; knowing this, the authors of H.B. 589 “exempted absentee voting from the photo ID requirement” while “drastically restrict[ing] . . . other forms of access to the franchise.” McCrory, 831 F.3d at 230. The lack of a voter-ID requirement for absentee voting also suggested to the court that the legislature's proffered non-racial justifications-combating voter fraud and increasing confidence in elections-were pretextual. See Id. at 235. Whereas the legislature “failed to identify even a single individual who ha[d] ever been charged with committing in-person voter fraud in North Carolina, ” the legislature “did have evidence of alleged cases of mail-in absentee voter fraud, ” but chose not to address the problem. See Id. S.B. 824's legislative history displays an effort to correct this discrepancy, albeit a reluctant one. Until late 2018, voter-ID proponents appeared relatively unconcerned about absentee voter fraud. The first version of what would eventually become S.B. 824 required voter ID for in-person voting only. (See ECF No. 91-1 at 124.) Likewise, the language of the voter-ID amendment, drafted by the legislature, only requires photo ID from voters “offering to vote in person.” N.C. Const. art. VI §§ 2(4), 3(2). However, in November 2018, the State Board of Elections (“SBOE”) declined to certify election results in North Carolina's 9th Congressional District as news swirled about significant absentee ballot fraud in Bladen County. (See ECF No. 91-1 at 124.) A few days later, the legislature introduced a substitute bill which, for the first time, addressed absentee ballots. Id. at 125. Thus, while the final text of S.B. 824 appears to tackle the discrepancy between absentee and in-person voting highlighted in McCrory, the legislative history suggests that its drafters only did so under intensifying public pressure.

         Also noteworthy in the legislative history is the decision not to include public-assistance IDs as an acceptable form of identification. Here again, the Fourth Circuit in McCrory specifically singled out the omission of public-assistance IDs as evidence that H.B. 589 was imbued with discriminatory intent, recognizing, as the district court had, that “the removal of public assistance IDs in particular was suspect because a reasonable legislator . . . could have surmised that African Americans would be more likely to possess this form of ID.” McCrory, 831 F.3d at 227-28 (internal quotations omitted). However, unlike with absentee ballots (and despite urgings from Democratic legislators), the General Assembly did not choose to alter S.B. 824 to permit voters to use public-assistance IDs. An amendment to the bill proposed by Representative Bobbie Richardson-which was rejected-would have permitted voters to use any “identification card issued by a branch, department, agency, or entity of the United States or [North Carolina] for a government program of public assistance, ” so long as that ID contained a photograph. (See ECF No. 108-3 at 16.) The decision not to include this form of identification in S.B. 824, despite the attention given to it in McCrory, is, as it was with H.B. 589, particularly suspect. See 831 F.3d at 227.

         At the end of this discussion of legislative history, there is one final item to address. Central to the Fourth Circuit's discriminatory intent analysis in McCrory-indeed, the smoking gun-was the fact that “prior to and during the limited debate on the expanded omnibus bill, members of the General Assembly requested and received a breakdown” of voter behavior “by race, ” which they then used to target African American voters. Id. at 230. The Fourth Circuit “[could not] ignore the choices the General Assembly made with this data in hand.” Id. As Defendants point out, the legislative record before the Court in this case “features no such evidence.” (ECF No. 97 at 29-30.) However, as explained above, the same key legislators who championed H.B. 589 were the driving force behind S.B. 824's passage just a few years later-they need not have had racial data in hand to still have it in mind.

         To summarize, the legislative history reveals that the General Assembly's goals and motivations went virtually unchanged in the time between H.B. 589 and S.B. 824. Rather than taking steps to purge the taint of discriminatory intent, the bill's supporters expressed their resolve to circumvent McCrory and stave off future legal challenges. While racial data was not explicitly requested during the formal consideration of S.B. 824, as it had been a few years earlier with H.B. 589, the legislators who previously used racial data to target minority voters with “surgical precision” must have understood S.B. 824's potential to affect a disparate impact. Further, the rejection of an amendment which would have permitted the use of public-assistance IDs remains, as it was before in McCrory, particularly suspect here. Each of these aspects of the legislative history supports a finding that the enactment of S.B. 824, like its predecessor, was imbued with discriminatory intent.

         4. Whether S.B. 824 “Bears More Heavily on One Race Than Another”

         The final Arlington Heights consideration is the “impact of the official action”-that is, whether the challenged law “bears more heavily on one race than another.” 429 U.S. at 266 (quoting Washington, 426 U.S. at 242). When a plaintiff contends that a law was motivated by invidious intent, proof of disparate impact is not “the sole touchstone” of the claim. McCrory, 831 F.3d at 231 (citing Washington, 426 U.S. at 242). However, it would seem that at least some showing of disproportionate impact-“even if it is not overwhelming impact”-is required. See id.; cf. Palmer v. Thompson, 403 U.S. 217, 224 (1971) (“[N]o case in this Court has held that a legislative act may violate equal protection solely because of the motivations of the men who voted for it.”).

         In McCrory, the Fourth Circuit concluded that African Americans disproportionately lacked the kinds of photo ID required by H.B. 589. 831 F.3d at 231. This discrepancy was sufficient to establish a disparate impact for the purposes of an Arlington Heights analysis-not just for its standalone effect, but also for its contribution to the greater, cumulative disenfranchisement worked by H.B. 589's various restrictions. See Id. at 230-31 (citing City of Memphis v. Greene, 451 U.S. 100, 110, 126 (1981); Clingman v. Beaver, 544 U.S. 581, 607-08 (2005) (O'Connor, J., concurring)). As explained below, Plaintiffs have presented evidence suggesting that minority voters still disproportionately lack qualifying identification under S.B. 824, despite the fact that more kinds of ID are accepted under this law than under H.B. 589. However, S.B. 824 contains additional provisions not present in H.B. 589-most notably access to free, state-issued IDs and the presence of an expanded reasonable impediment provision-which could significantly limit any ill effects. See Lee 843 F.3d at 603 (noting, with seeming approval, that “the Virginia legislature went out of its way to make [the impact of its voter-ID law] as burden-free as possible.”). Because impact is simply “one of the circumstances evidencing discriminatory intent” under an Arlington Heights, totality-of-the-circumstances analysis, see McCrory, 831 F.3d at 231, the size of the impact-rather than just its existence- matters. Accordingly, the Court cannot simply rely on a combination of disparate ID possession and the McCrory decision to determine S.B. 824's impact. Rather, an independent analysis of S.B. 824's likely effect is necessary in order to give this factor its proper weight.

         a. S.B. 824's Provisions

         Before evaluating S.B. 824's likely impact, an initial summary of the bill's provisions is in order. The core of S.B. 824 is its requirement that all voters, whether voting in person or by absentee ballot, “produce” an acceptable form of identification which “contain[s] a photograph of the registered voter.”[11] 2018 N.C. Sess. Laws 144 § 1.2. (a). Ten different forms of ID are authorized:

1. North Carolina driver's licenses;
2. Other nontemporary IDs issued by the Division of Motor Vehicles ...

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