MEMORANDUM OPINION AND ORDER
TABLE OF CONTENTS
I.FINDINGS OF FACT... 332
A. North Carolina Voting Laws... 332
1. Voter ID... 332
2. Early Voting... 332
3. Out-of-Precinct Provisional Voting... 334
4. SDR... 336
5. Pre-registration... 336
B. Post-2011 Legislation... 337
1. Introduction of HB 589... 337
2. Revision of HB 589... 339
3. Enactment of HB 836... 344
C. Procedural History... 348
D. Evidence of Voter Experience Under Current Law... 351
1. Voter ID... 351
a. Voter Education about the Voter-ID Requirement Prior to the Reasonable Impediment Exception... 351
b. Voter Education After Enactment of the Reasonable Impediment Exception... 353
c. Voters’ Experience in Acquiring Qualifying ID... 358
d. Evidence of North Carolina Voters Without ID... 364
e. Availability of the Reasonable Impediment Exception,., 369
2. Change in the Early-Voting Schedule ... 382
3. Elimination of SDR... 393
4. Elimination of OOP Provisional Voting... 404
5. Elimination of Pre-Registration... 407
6. Other Challenged Provisions... 409
7. 2014 Data... 411
E. Testimony of Other Experts... 412
II. CONCLUSIONS OF LAW... 412
A.Section 2 of the VRA... 412
1. The Law of Vote Denial and Abridgement Claims..,. 412
2. The Totality of the Circumstances & Gingles... 422
a. The Success of the Prior Practices in Fostering Minority Political Participation... 422
b. History of Official Discrimination ... 425
c. Racially-Polarized Voting... 429
d. Enhancing the Opportunity for Discrimination ... 429
e. Candidate Slating Process,.. 430
f. Continuing Effects of Discrimination Hindering Participation... 430
g. Racial Appeals in Campaigning... 438
h. Minority Electoral Success... 438
i. Responsiveness of Elected Officials ... 439
j. Tenuousness of the State’s Justifications ... 440
i. Voter ID... 440
ii. Early Voting... 445
iii. SDR... 445
iv. OOP Voting... 447
v. Pre-Registration... 463
3. Equality of Opportunity and Social and Historical Conditions... 465
a. Voter ID... 466
b. Early Voting... 472
c. SDR... 473
d. OOP Voting... 479
e. Pre-registration... 483
f. Cumulative Effect... 484
4. Discriminatory Result: Conclusion ... 486
5. Discriminatory Intent... 488
6. Additional Problems with the § 2 Results Claim ... 503
B. “Traditional” Fourteenth and Fifteenth Amendment Claims... 509
C. Anderson-Burdick Claim... 509
1. Voter ID... 511
2. Early Voting... 513
3. SDR... 514
4. OOP... 516
5. Pre-registration... 518
6. CBOE Discretion... 520
7. Poll Observers and Challengers... 520
8. Cumulative Effect of Provisions... 521
D. Twenty-Sixth Amendment Claim... 521
E. Remedy... 525
III. CONCLUSION... 526
In these related cases, Plaintiffs seek to permanently enjoin Defendants from implementing various provisions of North Carolina Session Law 2013-381 (“SL 2013-381”), an omnibus election-reform law, as amended by Session Law 2015-103 (“SL 2015-103”).
The record is extensive. The court held a four-day evidentiary hearing and argument beginning July 7, 2014, on Plaintiffs’ motion for preliminary injunction, which evidence is now part of the trial record. Fed. R. Civ. P. 65(a)(2). Fifteen days of trial on the merits- were conducted from July 13 through 31, 2015. An additional six days of trial on the voter photo identification (“ID”) provisions of the law were conducted from January 25 through February 1, 2016, The court has considered testimony of twenty-one expert witnesses and 112 fact witnesses. The record consists of more than 11,000 pages from the preliminary injunction phase, in excess of 12,000 pages from the July trial, and over 2,500 additional pages from the January trial.
This case presents important questions as it tests North Carolina’s newly-enacted voter photo-ID requirement and the State’s modification or elimination of certain voting procedures not contemplated by the State a little more than a decade ago; seventeen days of in-person early voting before Election Day, same-day registration, voting provisionally on Election Day in an unassigned precinct, and preregistering to vote as early as age sixteen. Under both the Elections Clause of, and the Tenth Amendment to, the United States Constitution, such decisions are traditionally reserved to the States, but they are subject to other constitutional and congressional limitations. The principal question in these cases is whether the North
After careful consideration of the complete record and pursuant to Rule 52(a) of the Federal Rules of Civil Procedure, the court enters the following findings of fact—based upon an evaluation of the evidence, including the credibility of witnesses, and the inferences that the court has found reasonable to be drawn therefrom—and conclusions of law. To the extent any factual statement is contained in the conclusions of law, it is deemed a finding of fact as well.
I. FINDINGS OF FACT
A. North Carolina Voting Laws
The provisions of North Carolina SL 2013-381 at issue establish a voter-ID requirement and repeal certain voting and registration mechanisms enacted since 1999. An understanding of the purposes and effect of the current regime requires an understanding of the previous laws, including their origin and history. See League of Women Voters of N.C. v. North Carolina,
1. Voter ID
Prior to 2016, North Carolina relied on a system of signature attestation to prevent voter fraud. Under this system, poll workers—as the primary gatekeepers to voter fraud—would ask the name and address of voters presenting to vote in person. (Doc. 407 at 43.) If the poll worker was able to locate a registration for the name and address provided, the voter was required to sign an authorization to vote (“ATV”) form attesting that he was the person under whose registration he sought to vote and that he currently resided at the address of registration. (Doc. 410 at 83; Plaintiffs’ Exhibit (“PI. Ex.”) 1056.) The ATV form warned voters that “fraudulently or falsely completing this form is a Class I Felony.” (PI. Ex. 1056.) Although the SBOE maintained voters’ signatures as a result of registration forms, (PI. Ex. 212A), poll workers did not have access to the signatures, either during early voting or on Election Day, (Doc. 414 at 123). Accordingly, signatures were not verified at the polling place and, unless the poll worker knew the voter, the poll worker had very limited means of determining whether the voter was the same person as the registrant. (See id.)
2. Early Voting
Prior to 1973, North Carolina required all voters to cast their ballot on Election Day or to apply for an absentee ballot. See N.C. Gen. Stat. § 163-227 (1972). In 1973, the General Assembly passed legislation that permitted voters to participate in “one-stop” “early voting”
In 1979, the General Assembly reduced the one-stop early-voting period from sixty days to thirty days. 1979 N.C.' Sess. Law 799, § 1. But see N.C. Gen. Stat. § 163-227.3 (providing that, unless otherwise authorized, a CBOE shall provide absentee ballots for voting by mail “60 days prior to the statewide general election in even-numbered years”). Then, as now, a voter had to be registered at least twenty-five days before the election for which the absentee ballot was being offered. See N.C. Gen. Stat. § 163-82.6(c); N.C. Gen. Stat. § 163-67 (1979) (making the registration cut-off twenty-one days before Election Day, excluding Saturdays and Sundays). This law provided that a ballot executed at a CBOE be completed in a voting booth or private room. 1979 N.C. Sess. Law 799, § 2.
In 1999 (effective January 1, 2000), on a vote almost entirely along party lines,
In 2000, the General Assembly enacted SL 2000-136, which allowed CBOEs to petition the SBOE for approval when they are unable to reach unanimous agreement as to the location of additional early-voting sites. 2000 N.C. Sess. Law 136, § 2. The law empowered the SBOE, on a simple majority vote, to approve additional sites based on the consideration of the “partisan interests of that county,” among other factors. Id. (not requiring SBOE unanimity). Because the governor controls appointments to the SBOE, which in turn appoints the members of the CBOEs, both boards are effectively controlled by the same political party as the governor. See N.C. Gen. Stat. § 163-19 (giving the governor power to appoint SBOE members but requiring
In 2001, the General Assembly expanded no-excuse early voting to all elections and absentee ballots. 2001 N.C. Sess. Law 337, § 1. With votes split largely along party lines in the North Carolina House of Representatives, but with bi-partisan support in the Senate,
In sum, these 2001 changes, effective January 1, 2002, moved the start of early voting three days closer to Election Day, reduced the number of required days of early voting to twelve and one-half days, but permitted an expansion up to seventeen days upon unanimous CBOE agreement. No one criticized or challenged the reduced minimum or other changes.
3. Out-of-Precinct Provisional Voting
The next voting change, chronologically, was the advent of out-of-precinct (“OOP”) provisional voting, whose origins in North Carolina can be traced to Congress’ passage in 2002 of the Help America Vote Act (“HAVA”), 52 U.S.C. §§ 20901-21145 (formerly 42 U.S.C. §§ 15301-15545), which in turn was passed in the wake of evidence of irregularities in the 2000 presidential election. HAVA, in part, required States to offer provisional ballots to individuals on Election Day who seek to vote and claim to be registered and eligible to vote for federal office, but who do “not appear on the official list of eligible voters for the polling place or an election official asserts that the individual is not eligible to vote.” See 52 U.S.C. § 21082(a). However, HAVA only requires such provisional ballots to be counted “in accordance with State law.” Id. § 21082(a)(4). Thus, a provisional ballot must be counted only if State law authorizes it.
In 2003, a bill was introduced in the General Assembly titled, “Help America Vote Act Compliance.” H.B. 842, 2003 Gen. Assemb., Reg. Sess. (N.C. 2003). Its stated purpose was “to ensure that the State of North Carolina has a system for all North Carolina elections that complies with the requirements for federal elections set forth in” HAVA. See 2003 N.C. Sess. Law 226, § 1. It was approved unanimously. As to
Soon after, the SBOE claimed authority to count provisional ballots cast outside the voter’s correct precinct, and several affected Republican candidates raised a legal challenge. See In re Election Protest of Fletcher,
it caps the number of voters attempting to vote in the same place on election day; it allows each precinct ballot to list all of the votes a citizen may cast for all pertinent federal, state, and local elections, referenda, initiatives, and levies; it allows each precinct ballot to list only those votes.a citizen may cast, making ballots less confusing; it makes it easier for election officials to monitor votes and prevent election fraud; arid it generally puts polling places in closer proximity to voter residences.
Id. at 271,
If voters could simply appear at any precinct to cast their ballot, there would be no way under the present system to conduct elections without overwhelming delays, mass confusion, and the potential for fraud that robs the validity and integrity of our elections process.
Id.-.at 270,
In response to James, the General Assembly—on a purely partisan division— immediately passed SL 2005-2,
4. SDR
The National Voter Registration Act '(“NVRA”), 52 U.S.C. § 20507(a)(1) (formerly 42 U.S.C. § 1973gg-6(a)(l)), permits a State to set a registration cut-off of thirty days before an election. North Carolina extends that deadline by five days such that a person is required to have registered to vote at least twenty-five days before an election in order to cast a ballot. N.C. Gen. Stat. § 163-82.6(c).
In July 2007, the General Assembly— split almost-entirely along party lines— passed legislation permitting voters to register and vote at early-voting sites, which Governor Michael Easley signed into law.
5. Pre-registration
Ever since the ratification of the Twenty-Sixth Amendment in 1971, a person who would be eighteen years-old on the next Election Day could register to vote in North Carolina, which included the primary for that election even if he would not be eighteen on the date of the primary. N.C. Gen. Stat. §§ 163-55(a)(l), 163-59. In 1993, a bill to permit sixteen- and seventeen-year-olds to “preregister” was introduced but failed to gain passage. (PI. Ex. 46 at 23.)
In 2009, a bipartisan General Assembly passed SL 2009-541, which allowed for “pre-registration” of sixteen- and seventeen-year-olds who would not be eighteen before the next general election.
B. Post-2011 Legislation
In 2011, Republicans gained majorities in both houses of the General Assembly, yet the Democrats continued to control the governorship. With that shift, however, efforts to alter several of the recently-enacted election laws began. Those included bills to reduce early voting and end SDR and pre-registration. See e.g., H.B. 658, 2011 Gen. Assemb., Reg. Sess. (N.C. 2011) (reducing early voting by a week);
In 2012, Republicans gained control of the governorship and, in 2013, control of both houses. After more than a century since controlling all offices, they renewed attempts to change North Carolina’s election administration. In 2013, several bills were introduced to reduce the early-voting period, eliminate SDR, and alter other procedures. See, e.g., H.B. 913, 2013 Gen. Assemb., Reg. Sess. (N.C. 2013) (eliminating SDR and enhancing observer rights); S.B. 428, 2013 Gen. Assemb., Reg. Sess. (N.C. 2013) (eliminating a week of early voting and SDR); S.B. 666, 2013 Gen. As-semb., Reg. Sess. (N.C. 2013) (eliminating a week of early voting, weekend voting hours, and SDR); S.B. 721, 2013 Gen. As-semb., Reg. Sess. (N.C, 2013) (implementing voter ID and reducing early voting to six days); H.B. 451, 2013 Gen. Assemb., Reg. Sess. (N.C. 2013) (eliminating a week of early voting, Sunday voting, SDR, and straight-ticket voting).
1. Introduction of HB 589
On March 12, 2013, the legislative process for SL 2013-381 began, with the North Carolina House Committee on Elections, chaired by Republican Representative David R. Lewis, holding public hearings on voter ID. (See PI. Ex. 127.) Over seventy-five citizens from a wide variety of organizations spoke before the committee. (Id. at 2-5.) The next day, the committee met and considered the testimony of five individuals representing a wide variety of organizations, including the Brennan Center for Justice and the Heritage Foundation. (See PI. Ex. 128.) One of the speakers was Allison Riggs, counsel of record for the League Plaintiffs in case 1:13CV660,
On April 4, HB 589 was introduced in the House. (PL Ex. 106.) The bill dealt mostly with the implementation of a voter-ID requirement beginning in 2016 in portions titled the “Voter Information Verification Act.” (Id. at 1-6, 11-12.) The remainder of the bill dealt with the procedure for obtaining and voting mail-in absentee ballots. (Id. at 6-11.)
Under House rules, legislation must pass three readings.
HB 589 advanced, as amended, from the various House committees and was debated on the House floor on April 24. (Id.; PI. Exs. 547, 548.) Three amendments were adopted, six others were rejected, and the bill passed “second reading” on a roll-call vote of 80-36.
HB 589 was received in the North Carolina Senate the next day, passed first reading, and was assigned to the Senate Rules Committee. (Pl. Ex. 121.) The committee took no immediate action on the bill. The parties do not dispute that the Senate believed at this stage that HB 589 would have to be submitted to the DOJ for “pre-clearance” under § 5 of the VRA, 52 U.S.C. § 10304 (formerly 42 U.S.C. § 1973c), because many North Carolina counties were “covered jurisdictions” under that section. At that time, however, the
On June 25, the Supreme Court issued its decision in Shelby County v. Holder,- — U.S.-,
2. Revision of HB 589
A meeting of the Rules Committed' was scheduled for July 23. (See PI. Exs. 121, 135, 202.) The night before the Rules Committee meeting, the revised version of HB 589, now fifty-seven pages in length, was posted for the members on the Rules Committee website.
HB 589’s various unchallenged revisions, which claimed to “reform” North Carolina’s election law, included: (1) standardizing the process for requesting an absentee ballot through an absentee ballot request form created by the SBOE (Part 4); (2) expanding the public agencies offering voter registration to include senior centers and parks and recreation services (Part 5); (3) making it illegal to compensate persons collecting voter registrations based on the number of forms they submitted (Part' 14); (4) requiring biannual efforts by the SBOE to remove ineligible voters from North Carolina’s voter rolls (Part 18); (5) reducing the number of signatures required to become a candidate in a party primary (Part 22); (6) deleting obsolete provisions about the 2000 census (Part 27); (7) mandating that several matters be referred for further study, including requiring the Joint Legislative Oversight Committee to examine whether to maintain the State’s current runoff, system in party primaries (Part 28); (8) eliminating the option of straight-ticket voting (voting for an entire party rather than individual candidates) (Part 32); (9) moving the date of the North Carolina presidential primary earlier in the year (Part 35); (10) eliminating taxpayer funding for appellate judicial elections (Part 38); (11) allowing funeral homes to participate in canceling voter registrations of deceased persons (Part 39); and (12) requiring provisional ballots to be marked as such for later identification (Part 52). (PI. Ex. 107.) The bill also changed the ordering of North Carolina’s ballots. Prior to 2013, while the candidates’ names were listed in random order in primaries, Democratic candidates were always listed first in the general election ballots. (Doc. 341 at 165.)
The provisions challenged in the present lawsuit comprise approximately fifteen of HB 589’s fifty-seven pages.
So, of the fifty-seven-page bill, nine pages related to the voter-ID requirement, much of which was in the original version of the bill, and approximately six pages contained the other challenged provisions in this case. Those are: (1) the reduction of the period of early voting from seventeen to ten days; (2) the elimination of SDR; (3) the prohibition on the counting of ballots cast outside a voter’s correct voting precinct on Election Day (“OOP voting”); (4) the allowance for up to ten at-large poll observers within each county; (5) the ability of any registered voter in the county, as opposed to precinct, to challenge a ballot; (6) the elimination of the discretion of CBOEs to keep the polls open an additional hour on Election Day in “extraordinary circumstances”; and (7) the elimination of “pre-registration” of sixteen- and seventeen-year-olds who will not be eighteen by the next general election.
Several legislators reported they had been caught off guard by these changes. (See, e.g., PI. Ex. 18A at 8 (Sen. Stein); PI. Ex. 21 at 7 (Sen. Blue).) In truth, many of these additions to HB 589 were drawn from or patterned after similar bills then pending in the General Assembly. See H.B. 913, 2013 Gen. Assemb., Reg. Sess. (N.C. 2013) (SDR); S.B. 666, 2013 Gen. Assemb., Reg. Sess. (N.C. 2013) (early voting and SDR); S.B. 721, 2013 Gen. Assemb., Reg. Sess. (N.C. 2013) (early voting); H.B. 451, 2013 Gen. Assemb., Reg. Sess. (N.C. 2013) (early voting and SDR). Moreover, and as discussed below, any assertions of surprise are weakened by the fact that Senator Stein appeared the next day with charts and statistics on early voting and SDR that likely could not have been tabulated overnight. (See PI. Ex. 18A at 18 & Ex. A.)
When the Senate Rules Committee met as scheduled on July 23, Senator Apodaca allowed members of the public in attendance to speak for two minutes.
The Senate Rules Committee debated the recent additions to HB 589. Senator Stein argued that a voter-ID requirement, the reduction in early voting, and the removal of SDR were unneeded changes that would burden voters. (Id. at 32, 37-40.) Senator Robert Rucho, a Republican supporter of HB 589, responded. As to early voting, Senator Rucho cited concerns about inconsistency in the administration of early voting, lack of optimal utilization of early voting during the seventeen-day period, and the then-exiting early-voting system’s potential for “gamesmanship and partisan advantage.” (Id. at 30-32, 74-75.) He also noted the potential for “savings in the sense that by going from seventeen to ten days you actually have more opportunity to open up more sites.” (Id. at 30.) Senator Rucho further cited “integrity and honesty” in North Carolina’s election administration as well as increased public confidence as reasons for the voter-ID provisions. (Id. at 37, 68.) He noted that other States have an ID-requirement but also expressed a belief that most people had one of the required forms of ID or, in combination with the two-year soft roll out, had ample opportunity to obtain a free photo ID, as provided through the bill. (Id. at 36, 39, 67-68.) Senator Rucho also observed that the bill eliminated college IDs from the list of acceptable IDs because of the inconsistency in the issuance of those IDs across the State. (Id. at 68-69.) The elimination of OOP voting was described—apparently by a legislative staffer introducing the bill—as “mov[ing] the law back to the way it was prior to 2005; conforming] to federal law”; no Senator spoke in opposition to its elimination.
The following afternoon, on July 24, HB 589 was introduced on the floor of the full Senate. (PI. Ex. 549 at 1-2.) During several hours of debate after the bill’s second reading,. Democratic senators introduced and discussed several proposed amendments. Plaintiffs argue that amendments “designed to ameliorate burdens on African Americans [proposed during the debate] were defeated with little discussion.” (Doc. 346 at 52.) This is simply untrue. First, many such “amendments” were no more than proposals to remove the key provisions at issue. (See PI. Ex. 549 at. 32-33.) Moreover, the Senate did consider and adopt an early-voting aggregate-hours amendment by Senator Stein, which was substantive and significant. This came after Senator Stein argued that the reduction in early voting would disproportion
During the more than four hours of debate, the Senators exchanged argument on many of the other challenged provisions, including voter ID, SDR, pre-regis-tration, and the increase in allowable poll observers, as well as several provisions not at issue here (including the elimination of straight-ticket voting and reduction of various campaign-finance restrictions). (See PI. Ex. 549 at 66-141.) Senator Stein' presented charts to support his arguments about HB 589’s disparate impact
On July 25, the Senate began its session with the third reading of amended HB 589, (PI. Ex. 550 at 1-2.) Senator Rucho offered a bipartisan amendment to clarify Senator
By the close of debate, a total of fourteen amendments had been raised in the Senate, with five being adopted, and the Senate voted in favor of HB 589 along party lines; the bill then returned to the House for concurrence, as amended. (Id. at 100; Pl. Ex. 121; Pl. Ex. 124.) Senator Nesbitt (Democrat), although a vocal opponent of the bill, noted that “we’ve had a good and thorough debate on this bill over two’ days” and “reviewed the bill in great detail.” (Pl. Ex. 550 at 90-91.)
With the end of the legislative session approaching, the House received the Senate’s version of HB, 589 that night. (Pl. Ex. 121.) At the beginning of a two-hour floor session starting at 7:45 p.m., Representative Henry M. Michaux, Jr. (African American, Democrat) moved that the House form a Committee of the Whole
Two amendments offered by opponents (Sen. Blue’s amendment of the date for electioneering; amendments by Senators Rucho and Stein altering several items, including “expand[ing] and “better de-fin[ing]” the type and number of IDs that can be presented for voting, and requiring
In total, there are over 430 pages of transcript representing several hours of debate on HB 589 after its amended version was introduced in July 2013. There is no evidence that any House or Senate Rule was disregarded or violated at any time during the bill’s legislative process. (Def. Ex. 217 at 3; Doc. 335 at 193.)
The bill was ratified the next day and presented to Governor McCrory on July 29. (PI. Ex. 121.) The governor signed the bill into law on August 12, 2013, over the recommendation of the Attorney General (an elected Democrat), who nevertheless appears in this lawsuit to defend it. (Id.)
3. Enactment of HB 836
On June 18, 2015, less than a month before trial was set to begin in these cases, the General Assembly passed House Bill 836, and the governor signed it into law as SL 2015-103 on June 22, 2015.
First, it expands the category of acceptable photo IDs by permitting driver’s licenses, permits, provisional licenses, and non-operator IDs that have been expired
Second, the law requires poll workers to inform those without an acceptable ID. that they can complete a written request for an absentee ballot at an early-voting site until 5:00 p.m. on the Tuesday before Election Day (i.e., the deadline for requesting absentee ballots). Id. §§ 163—166.13(c)(3), 163-227.2(bl), 163-230.1.
Third, and most importantly, it creates an additional exception that permits in-person voters who do not have an acceptable photo ID to -cast a provisional ballot so long as they complete a declaration stating a reasonable impediment prevented them from acquiring qualifying photo ID. Id. §§ 163—166.13(c)(2), 163-166.15(a)-(b). Such voters must present alternate identification, which can consist of “the voter registration card issued to the voter by the' county board of elections” or “a current utility bill, bank statement, government check, paycheck, or other government document”
Session Law 2015-103 expressly addresses the scope of the reasonable impediment exception. At a minimum, all reasonable impediment declaration forms are required to include separate boxes listing the following reasonable impediments to acquiring a photo ID: (1) “Lack of transportation;' (2) “Disability or illness”; (3) “Lack of birth certificate or other documents needed to obtain photo identification”; (4) “Work Schedule”; (5) “Family responsibilities”; (6) “Lost or stolen photo identification”; and (7) “Photo identification applied for but not received by.the voter voting in person.” Id. § 163— 166.15(e). In addition, the form must list a box for “[o]ther reasonable impediment,” which the voter -can check and provide a “brief written - identification of the reasonable impediment.”
Although a reasonable impediment voter casts a provisional ballot, the ballot must be counted unless one of the following is true: the impediment described in the declaration is “factually false, merely denigrate[s] the photo identification requirement, or [is an] obviously nonsensical statement ]”; the voter fails to provide one of the alternate forms of identification discussed above; the CBOE could not confirm the voter’s registration using the alternate form of identification provided; or the “voter is disqualified for some other reason provided by law.” Id. § 163-182.1B(a). Significantly, if a voter’s reasonable impediment declaration is challenged, the CBOE is required to “construe all evidence presented in the light most favorable to the voter submitting the reasonable impediment declaration” and cannot reject the. impediment on the ground that it is not reasonable. See id. § 163-182.1B(b)(5)-(6).
In summary, as to the major components challenged herein, SL 2013-381 and SL 2015-103 had the following effect: Voter ID:
Beginning in 2016, in-person voters who have a qualifying photo ID “bearing any reasonable resemblance to that voter” must' present it to vote, either at the polling place or at the CBOE after casting a provisional ballot. N.C. Gen. Stat. §§ 163— 166.13, 163-182.1A; 2013 N.C. Sess. Law 381, § 6.2. Acceptable photo IDs are (1) a North Carolina driver’s license, learner’s permit, or provisional license (expired up to four years); (2) a special non-operator’s identification card (expired up to four years); (3) a United States passport; (4) a United States military identification card; (5) a Veterans Identification Card issued by the United States Department of Veterans Affairs; (6) a tribal enrollment card issued by a federally recognized tribe; (7) a tribal enrollment card issued by a tribe recognized by North Carolina, so long as it is signed by an elected official of the tribe and the requirements for obtaining it are equivalent to the requirements for obtaining a special identification card from the North Carolina Department of Motor Vehicles (“DMV”); and (8) a driver’s license or non-operator’s identification card issued by another State or the District of Columbia so long as the voter registered to vote within ninety days of Election Day. N.C. Gen. Stat. § 163-166.13(e). Those who do not have a qualifying photo ID and who can list a reasonable impediment to getting one, can vote in person without photo ID so long as they provide alternative identification and complete a reasonable impediment declaration. Id. §§ 163-166.13(c)(2), 163-166.15. Because the reasonableness of the impediment given cannot be challenged, in practice the reasonable impediment exception is better characterized as an impediment exception. See id. •§ 163-182.1B(b)(6). Only the voter’s subjective belief is relevant to the reasonableness inquiry. See id. In addition, curbside voters, those with religious objections to being photographed, certain victims of natural disasters, and absentee mail voters are exempt from the photo-ID requirement. Id. § 163-166.13(a). Early Voting:
Early voting must now begin “[n]ot earlier than the second Thursday before an election,” a reduction of seven days of permissible early voting. H. § 163-227.2(b). Early voting must end by 1:00 p.m. on the final Saturday before Election Day, eliminating CBOE discretion to keep early-voting sites open until 5:00 p.m. Id. Under the Stein amendment, the decrease in permissible days, however, is coupled with a requirement that the aggregate voting hours offered remain the same. Thus, the law requires that, “[f]or elections which do not include a presidential candidate on the ballot,” CBOEs must “calculate the cumulative total number of scheduled voting hours at all sites during the 2010 ... elections” and “ensure that, at least the same number of hours offered in 2010 is offered for [early voting] ... through a combination of hours and num
' If a county determinés that it cannot meet the aggregate-hours requirement or that additional hours are unnecessary, it may obtain a waiver only “by unanimous vote of the board, with all members present and voting.” Id. § 163-227.2(g3). The waiver request must also be approved by a unanimous vote of the SBOE. Id. Absent a waiver, counties must either open more early-voting sites or keep existing sites open longer to satisfy SL 2013-381’s aggregate-hours requirement.
SDR:
Session Law 2013-381 repealed SDR. To be eligible to vote in any primary or general election, a voter must comply with preexisting law that requires the registration application to be postmarked or delivered in person at least twenty-five days before Election Day. Id. § 163-82.6(c).
OOP:
Session Law 2013-381 prohibits the counting of OOP provisional ballots, thereby reinstating the North Carolina Supreme Court’s interpretation of State law in James. N.C. Gen. Stat. § 163-55(a) now provides,
Every person born in the United States, and every person who has been naturalized, arid who shall have resided in the State of North Carolina and in the precinct in which the person offers to vote for 30 days next preceding an election, shall, if otherwise qualified as prescribed in this Chapter, be qualified to vote in the precinct in which the person resides.
Thus, as a general matter, if a voter appears at the wrong precinct on Election Day, he or she will have to go to the proper precinct before the close of the polls in order to cast a valid vote.
Session Law 2013-381 ends the practice of pre-registration. Voter registration applications now ask only one question regarding the applicant’s age: “Will you be 18 years of age on or before election day?” N.C. Gen. Stat. § 163-82.4(d)(2). Thus, those who are seventeen but will be eighteen before Election Day may still register to vote in that election and in any primary before that election under SL 2013-381,
Under SL 2013-381, the repeal of preregistration took effect in September 2013; the revisions to early voting and the elimination of SDR and OOP voting became effective in January 2014; and the voter-ID requirement took effect in January 2016. 2013 N.C. Sess. Law 381, §§ 6.2, 12.1(3), 60.2.
C. Procedural History
On the same day that Governor McCro-ry signed HB 589 into law, two groups sued to enjoin it. The NAACP filed its complaint in case l:13cv658, later amended, alleging that the voter-ID requirement, elimination of SDR, reduction of early-voting days, prohibition on counting OOP provisional ballots, elimination of pre-reg-istration, and the expansion of poll observers and ballot challenges discriminates against African Americans and Hispanics in violation of the Fourteenth and Fifteenth Amendments of the United States Constitution, as well as § 2 of the VRA. The League Plaintiffs filed their complaint in case l:13cv660, alleging that the elimination of SDR, reduction of early-voting days, prohibition on counting OOP provisional ballots, and elimination of CBOE discretion to extend poll hours one hour on Election Day discriminates against African Americans and imposes an unjustified burden on all North Carolinians, in violation of § 2 of the VRA and the Fourteenth Amendment. On September 30, 2013, the United States filed its complaint in case l:13cv861, alleging that the law’s early voting, SDR, OOP voting, and voter-ID provisions discriminate against African Americans in violation of § 2 of the VRA. These cases were consolidated for discovery and were later consolidated for trial at the parties’ request. (Doc. 252.)
On January 27, 2014, the court permitted a group of “young voters” over the age of eighteen and others to intervene as Plaintiffs in case 1:13CV660 pursuant to Rule 24(b) of the Federal Rules of Civil Procedure. Intervenors allege that the elimination of pre-registration, reduction in early voting, repeal of SDR, prohibition on counting OOP ballots, elimination of CBOE discretion to keep the polls open an extra hour on Election Day, and implementation of a voter-ID requirement violate the. Fourteenth and Twenty-Sixth Amendments.
All Plaintiffs alleged.that the variously challenged provisions of SL 2013-381 have a discriminatory intent and effect, although the United States has since abandoned its discriminatory effect claim to the voter-ID law after passage of the reasonable impediment exception. As relief, they seek to permanently enjoin the challenged provisions. The United States seeks the appointment of federal observers under § 3(a) of the VRA and to subject North Carolina to a pre-clearance requirement under § 3(c).
Several elections have occurred during the pendency of these cases. The first occurred in the fall of 2013, when North Carolina held municipal elections. No plaintiff sought to enjoin enforcement of the law during this election.
In December 2013, after a hearing with all parties and at their request, the Magistrate Judge issued a scheduling order, setting May 5, 2014, as the deadline for the filing of a motion for preliminary injunction and dispositive motions. (Doc. 30.) The
On May 6, 2014, North Carolina held a midterm primary election. No plaintiff sought to enjoin enforcement of SL 2013-381 during this election. Compared to the previous comparable primary midterm election, 2010, turnout increased overall: among registered white voters, it increased from 15.8% to 17.4%; among registered African American voters, it increased from 11.4% to 13.4%; and among registered Hispanic voters, it increased from 2.9% to 3.3%. (Def. Ex. 309 at 66.) Thus, the greatest increase in turnout in the 2014 midterm primary was observed among African American voters, despite the implementation of SL 2013-381.
On May 19, 2014, Defendants moved for judgment on the pleadings. (Doc. 94.) That same day, Plaintiffs filed their motion for preliminary injunction and the United States sought the appointment of federal observers. (Docs. 96, 98.) Collectively, Plaintiffs sought to enjoin the elimination of SDR, OOP voting, pre-registration, CBOE discretion to keep the polls open an extra hour, the reduction of early voting, the expansion of poll observers and ballot challengers, and the “soft rollout” of the voter-ID law (in which voters would be advised that the photo-ID requirement would apply starting in 2016).
Beginning on July 7, 2014, this court held a four-day evidentiary hearing on all motions. On August 8, 2014, after considering the testimony of multiple fact and expert witnesses and a record with over 11,-000 pages of exhibits and materials, this court issued a 125-page opinion denying the motions for preliminary injunction but refusing to dismiss any claims.
On August 18, 2014, Plaintiffs—except for the United States—and Intervenors filed notice of appeal. (Docs. 172,174,175.) Plaintiffs were granted an expedited appeal, a limited briefing schedule was ordered, and on September 25, 2014, the court heard oral argument. Less than a week later, on October 1, 2014, a divided panel issued an opinion affirming in part, reversing in part, and remanding with instructions. League,
On the same day the Fourth Circuit issued its opinion, it also issued its mandate. Defendants immediately requested that the mandate be recalled and stayed pending the filing and disposition of a petition for writ of certiorari with the Supreme Court of the United States. The next day, on October 2, the panel denied the motion, over Judge Motz’s dissent.
Later that day, Defendants applied to the Chief Justice for a stay and recall of the Fourth Circuit’s mandate pending the filing and disposition of a certiorari petition. The Chief Justice referred the application to the full Court. Yet, while the proceedings were pending in the Supreme Court, the League Plaintiffs filed an emergency petition for a writ of mandamus with
The next day, the Supreme Court, over the dissent of two Justices, recalled and stayed the Fourth Circuit’s mandate and this court’s preliminary injunction, pending the filing and disposition of Defendants’ petition for a writ of certiorari. —- U.S. -,
Meanwhile, while the mandate and preliminary injunction were stayed by the Supreme Court, North Carolina held its 2014 general election, the third election under SL 2013-381. Compared to the last comparable midterm general election, 2010, voter participation increased: among registered white voters, it increased from 45.7% to 46.8%; among registered African American voters, it increased from 40.4% to 42.2%; and among registered Hispanic voters, it increased from 19.9% to 20.5%. (Def. Ex. 309 at 66.) Not only did African American turnout increase more than other groups in 2014 with SL 2013-381 in place, but that general election saw the smallest white-African American turnout disparity in any midterm election from 2002 to 2014. (Id. at 62; PL Ex. 229 at 7.)
Trial was set for July 13, 2015. But as a result of the General Assembly’s June 18, 2015 passage of House Bill 836, the court immediately held a status conference to address how this change in law might affect the pending cases. Plaintiffs pushed for additional time to assess the new law but opposed delaying trial on the remaining claims; Defendants argued that the amendment rendered the challenge to the voter-ID portion of the law moot. The court proposed continuing the trial to September 2015 but, at Plaintiffs’ urging, ultimately carved out the challenge to the voter-ID law from the July 13 trial setting and agreed to proceed to trial on the balance of the consolidated claims. (Doc. 282.) Thereafter, Defendants moved to dismiss the voter-ID challenge as moot (Doc. 299); the court denied the motion, setting trial on those claims for January 25, 2016.
Beginning July 13, 2015, this court held a trial on the merits of all claims except those challenging the voter-ID provisions. Over the course of three weeks, the court took the testimony of over 100 witnesses, both live and through deposition. Following trial, the parties submitted almost 300 pages of proposed findings of fact and conclusions of law. (Docs. 346, 347.)
On November 24, 2015, five months after SL 2015-103 and eight weeks before trial, NAACP Plaintiffs moved to preliminarily enjoin the implementation of the photo-ID provision of SL 2013-381, as amended by the reasonable impediment provision. (Doc. 371.) The United States did not join this motion. Briefing was completed on December 21, 2015. (Doc. 375.) On January 15, 2016, the court issued a fifty-four page memorandum opinion and order denying NAACP Plaintiffs’ motion for preliminary injunction. (Doc. 383.)
' On January 25, 2016, this court held a trial on the merits of Plaintiffs’ .claims challenging the voter-ID law.
Including the evidence from the preliminary injunction hearing, which the parties have stipulated to be considered part of the trial record pursuant to Federal Rule of Civil Procedure 65(a)(2), the record therefore consists of over 25,000 pages of exhibits, reports, and deposition transcripts.
D. Evidence of Voter Experience Under Current Law
Plaintiffs argue that the addition of voter ID and the removal of the challenged provisions of SL 2013-381 creates inequality of opportunity, unlawfully burdens all voters, and results in a disparate, negative burden on African American, Hispanic, and “young”' voters. The evidence as to each of the challenged provisions is addressed below.
1. Voter ID
Due to the soft rollout, a photo ID was not required until the March 2016 primary. Thus, unlike the other provisions at issue in this case, no data were presented from an election where the ID requirement was in place.
a. Voter Education about the Voter-ID Requirement Prior to the Reasonable Impediment Exception
Defendants have engaged in substantial efforts to educate voters about the State’s photo-ID requirement. Three elections were held during the educational effort: municipal elections in November 2013, midterm primary elections in May 2014, and midterm general elections in November 2014.
Session Law 2013-381 contains a mandate to inform and educate voters about the new law. See 2013 N.C. Sess. Law 381, § 5.3. The General Assembly appropriated approximately $2 million to implement this requirement.
One of the SBOE’s efforts was to educate voters at the polls. For the. 2014 general election, the SBOE developed a color poster that depicted the photo IDs that would be accepted in 2016 and advised that voters would need a photo ID to vote beginning in 2016. (Id. at 28.) To accompany the poster, the SBOE developed a “two-
In addition to efforts to educate voters at polling sites, the SBOE created a special website dedicated to the photo-ID requirement and contacted specific voters who potentially lacked qualifying ID. This mailing effort targeted two groups. First, the SBOE- sent a mailing to 10,675 registered voters who claimed they did not have acceptable photo ID while voting in the 2014 elections. (Def. Ex. 535 at 7.) Second, it sent mailings to those who could not be matched to a government database of persons with acceptable IDs. (Id. at 8-11.)
In the lead up to the enactment of North Carolina’s voter-ID law, the SBOE engaged in a series of database matching efforts designed to gauge how many North Carolina registered voters lack qualifying ID. Those registrants who could not be matched to a list of persons with North Carolina DMV-issued ID appeared on a “no-match list.” (See, e.g., PI. Ex. 891 at 3.) The SBOE’s no-match list contained 1,005,581 registrants as of a February 9, 2011 report, 612,955 registrants as of a January 7, 2013 report, 481,109 registrants as of a March 5, 2013 report, and 318,643 registrants as of an April 17, 2013 report. (Id. (tbl. 1).) The SBOE refined the matching criteria in each report. Although none of the SBOE’s reports was “intended to be a comprehensive study on the number of voters who may not have any photo ID, regardless of source,” the SBOE indicated that its April 2013 report was, at that time, the “most accurate estimate on the number of voters for whom [it] c[ould not] determine to have a photo ID issued by the [DMV].” (PL Ex. 534 at 1.) The SBOE’s most recent no-match analysis took place in February 2015 and was based on a November 4, 2014 snapshot of the data. (PI. Ex. 535 at 8.) It identified 254,-391 registered voters who could not be matched to a qualifying ID in the DMVs database. (Id.) Further, as part of this litigation, Plaintiffs’ expert Charles Stewart, Ph.D., Kenan Sahin Distinguished Professor of Political Science at the Massachusetts Institute of Technology,
The SBOE followed up on both its February 2015 report and Dr. Stewart’s report. Specifically, it contacted 218,097
In sum, for nearly two years North Carolina frequently notified voters that, unless they met an exception, they would need photo ID to vote in 2016.
b. Voter Education After Enactment of the Reasonable Impediment Exception
With the advent of SL 2015-103’s reasonable impediment exception on June 22, 2015, the prior information provided to voters was rendered incomplete. Session Law 2015-103 requires the SBOE to educate voters on the availability of the reasonable impediment exception, 2015 N.C. Sess. Law 103, § 8.(g), and the SBOE has engaged in substantial efforts to do so.
Creation and Distribution of Updated Materials
SBOE Executive Director Kim Strach, whom the' court found credible, testified that “[ijmmediately after the enactment of S.L. 2015-103 in June 2015, SBOE staff developed new materials which would inform the public of modifications to the photo identification requirements and the availability of the reasonable impediment declaration option.” (Def. Ex. 535 at 16.)
These new materials “were delivered to every county board of elections for posting and distribution at early voting and Election Day polling locations during the 2015 municipal elections”; “have been distributed. to groups and associations by the SBOE Outreach Team”; “have been made available to candidates filing for the 2016 election contests”; and can be “download[ed] from the SBOE’s dedicated ‘Voter ID’ website.” (Id at 16-17.) As of December 11, 2015, the “SBOE ha[d] distributed over 105,000 copies of these materials,’including Spanish-language materials.” (Id. at 17.) In December 2015, the SBOE received an additional “300,000 flyers and 13,000 full-size posters” and as of that time planned to distribute these materials to CBOEs for
posting in public buildings throughout the State, such as county courthouses and offices, municipal government offices, town or city halls, health departments, public assistance agencies, vo.ca-tional rehabilitation and mental health centers, hospitals, schools, police stations, libraries, chambers of commerce, public transit and bus stations, senior centers, community centers, shelters and temporary/emergency housing, and other facilities open to the public.
(Id.) The SBOE’s plans included dissemination of these materials through outside partners
Further, on or about November 2, 2015, the State mailed a letter to those organizations who received a prior version of educational materials not including the reasonable impediment provision directing “that recipients should provide updated current information to any individuals to whom they disseminated the original materials or information.” (Id. at 17.) The letter also offered the assistance of SBOE staff and included a form to order new materials. (Id.)
Statewide Media Campaign
The State has also implemented a substantial media outreach program for the current version of the photo-ID law.
This election, voters will be asked to show a photo ID at the polls. For most voters, you can simply bring your North Carolina Drivers License or ID card, passport, military or Veterans Affairs ID or certain tribal IDs. And, if there’s something preventing you from getting one, no worries—you’ll still be able to vote. Just come to the polls and we’ll help you cast your ballot.
(Id. at 2-3.) The thirty second version of the ad is substantially the same. (Def. Ex. 472 at 2.) Both versions of the “Be Recognized” ad began airing on television and radio in early. February 2015. (Doc. 414 at 170-72.)
Information Provided on SBOE and CBOE Websites
The State has also used the SBOE’s primary website, CBOE websites, and the SBOE’s stand-alone website dedicated to the photo-ID requirement to educate voters about the reasonable impediment exception, (Id. at 13.) The SBOE’s dedicated photo-ID website appears as the first result of a search on Google® for “North Carolina voter ID.” At the top of that site is the statement, “Most Voters Will Need to Show Acceptable Photo ID at the Polls.” See N.C. State Bd. of Elections, www; voterid.nc.gov (last visited April 4, 2016). To the right of that statement is an image of acceptable forms of photo ID. Id. Below the statement is the sixty second video version of the “Be Recognized” ad, and below the video, in bold, pink letters is the statement, “Reasonable Impediment: .Can’t Get a Photo ID? Click Here.” Id. Clicking on the accompanying link produces the following prominently-displayed statement:
Declaration of Reasonable Impediment Voters who are unable to obtain an acceptable photo ID due to a reasonable impediment may still vote a provisional ballot at the polls. (Examples of a reasonable impediment include but are not limited to the lack of proper documents, family obligations, transportation problems, work schedule, illness or disability, among other reasonable impediments faced by the voter.)
Voters must also:
1. Sign a declaration describing their impediment; and
2. Provide their date of birth and last four digits of their Social Security number, or present their current voter registration card or a copy of an acceptable document bearing their name and address. (Acceptable documents include a current utility bill, bank statement, government check, paycheck, or other government-issued document.)
The provisional ballot will be counted when the information on the declaration is verified and all other eligibility requirements are met.
Id.The website has a “button” at -the top labeled “Español” that allows users to receive voter-ID related information in Spanish. Id.
Judicial Voter Guide
The SBOE also included voter ID-related information as part of the State’s Judicial Voter Guide, which is required by statute to be mailed to “every household in North Carolina not more than twenty-five days prior to the start of early voting in each election in which there is a statewide judicial contest.” (Def. Ex. 535 at 14.) The front of the guide features a prominent statement informing voters that important information about the voter-ID requirement is contained inside. (Def. Ex. 537 at 1.) The -statement also directs those who “can’t obtain an acceptable photo ID” to the page of the guide where the reasonable impediment exception is described. (Id.)
Targeted Mailing of Those Previously Contacted
Most pertinently, the SBOE has taken specific steps to reeducate those individuals that it previously contacted regarding the photo-ID requirement. As noted above, individuals who signed the “Acknowledgment of no Photo ID” form while voting and individuals appearing on no-match lists were mailed information about the need for photo ID in 2016 and how to acquire it. (Def. Ex. 535 at 7-10.) These mailings predated SL 2015-103. (Id. at 11.) After the fall elections in November 2015, the SBOE sent every individual who received a prior mailing (315,755 voters)— except those who had reported they already possess acceptable photo ID and those for whom prior mailings were returned to the SBOE as undeliverable—an additional mailing describing the reasonable impediment exception and other exceptions to the photo-ID requirement. (Id.) In December 2015, the SBOE sent a similar mailing to the 823 voters who indicated they lacked qualifying ID while voting during the 2015 municipal elections. (Id. at 8; Doc. 414 at 163-64; Def. Ex. 484.)
Election Official Training
The SBOE has provided CBOEs with substantial training on implementing the voter-ID requirement and the reasonable impediment exception. According to Director Strach, CBOEs “are responsible for providing in-person training to the local election workers and officials who will staff polling places,” while the SBOE’s role is to “provide[ ] oversight and resources to the counties’ training efforts, including developing training materials and programs for use by [CBOEs].” (Def. Ex. 535 at 5; accord Doc. 414 at 139.) CBOE training of election workers has “historically [been] conducted in the months immediately preceding an election,” and, Director Strach says, there is “no precedent for county boards of elections to train elections workers on new elections procedures before the training they will receive for the 2016 elections.” (Def. Ex. 535 at 5-6.) According to Strach, “[t]raining election officials immediately in advance of an election is preferable to conducting the training at any earlier time ... [as it] allows the training to be fresh in the minds of election workers.” (Id. at 6.) In addition, given that election workers “typically work only a few days each year, ... they receive training only on the procedures which will be in effect during the election for which they are being trained.” (Id.)
As noted above, the SBOE began to develop and disseminate information on the reasonable impediment provision soon after it was enacted. In August 2015, the SBOE began to provide training to CBOE officials on the reasonable impediment exception at the statewide conference for CBOE members and staff. See N.C. State Conference of the NAACP v. McCrory,
In January 2016, the SBOE conducted regional training sessions for the CBOE elections personnel who would conduct the poll worker and election official training for the March 2016 primary. (Def. Ex. 535 at 5.) The SBOE encouraged CBOEs to invite poll workers and election officials to attend regional training. (Doc. 414 at 145.) Training sessions were held in Greenville, Buies Creek, Charlotte, Graham, Asheville, and Raleigh. (Def. Ex. 532.) The SBOE also made its presentation available via webinar so that additional election officials could receive training. (Doc. 414 at 146.) In total, 1,400 election officials and poll workers participated. (Id.)
A primary purpose of regional training was to provide training on how to use the SBOE’s “Station Guide.” (Id. at 145.) The Station Guide is a 123-page document that is placed “on every table or station at each polling site.” (Id. at 183-84; Def. Ex. 531.) It is designed to provide election workers with “step-by-step instructions” for processing voters both with and without acceptable photo ID. (Doc. 414 at 183.) The January 2016 regional training presentation described the purpose and organization of the Station Guide; acceptable photo ID, along with pictures and expiration requirements; check-in procedures and the process for referring those without acceptable ID to the Help Station; the standard for applying the reasonable resemblance requirement; the reasonable impediment exception and the process for implementing it; and the parts of the reasonable impediment paperwork that must be completed by the voter and the parts that must be completed by the election worker, (Def. Ex. 532.)
Although the regional training presentation’s primary reference material was the Station Guide, it also referenced and provided links to on-demand training videos that the SBOE made available to CBOEs in December 2015. (Id.; Def. Ex. 476.) The training videos consist of eleven modules for use by CBOEs in training their election workers. (Doc. 414 at 140.) The tenth module covers the reasonable impediment exception and provides the election worker with a hands-on demonstration of how to process a reasonable impediment voter. (Id. at 140-41; Def. Ex. 476 at 17-20.)
■ Although the Station Guide and training modules are designed to be detailed, the more comprehensive guide to election administration is the Election Official Handbook (“Handbook”). (Doc. 414 at 183-84; see Def. Ex. 475.) The Handbook provides guidance on “every aspect of the voting experience [and] ... step-by-step instructions and scripted language to deal with any potential scenario that an election official may encounter.”
On February 1-2, 2016, the SBOE conducted a statewide educational conference for CBOE elections personnel. (let at 146.) Director Strach gave a presentation dedicated exclusively to voter-ID requirements and exceptions. (Def. Ex. 551.) The presentation described various training tools, including the video modules discussed above,
In sum, the SBOE has engaged in substantial efforts to educate voters and election officials about the requirements of and exceptions to the voter-ID requirement.
c. Voters’ Experience in Acquiring Qualifying ID
To acquire a free voter ID, voters must present at a DMV location providing North Carolina DMV services. Testimony at trial indicated that this process, at least for some, has not been as easy as one might expect.
To acquire a free voter ID, an applicant must do the following: (1) be a registered voter or complete a voter registration application- at the time of applying for a voter ID; (2) sign a declaration stating that the registrant does not have an acceptable ID to vote; (3) provide proof of North Carolina residency, or, in the alternative, sign an affidavit of residency (there is no cost for this. affidavit when applying for free voter ID); (4) provide a valid SSN; and (5) prove age and identity by providing two supporting documents. (Def. Ex. 533 at 2 (tbl. 4).)
There has been some inconsistency within the DMV about which supporting documents are sufficient to prove age and identity. (See Doc. 410 at 180-81.) Historically, the “officially acceptable” list of documents has been published in “Table (1)” of the DMV’s required-documents form, “DL-231”, which appears on its website. (See id.
As a practice, however, DMV examiners did not always limit themselves to documents in Table (1). (Doc. 410 at 181.) Over time this took the form of an alternate document list, which benefitted applicants. (Id.) This list was not publicly available, and it does not appear to have been uniformly followed by examiners. (See id.) But it was used by at least some examiners from January to August 2014. (Id.) In any event, in January 2016, the DMV officially incorporated documents on the alternate list into the list of acceptable supporting documentation and made that list available on its website. (Id at 186-87.) Voters are still encouraged to bring a document from Table (l),.but the DMV will consider the following unexpired forms of alternate identification in an application for a free voter-ID: (1) certificate of adoption; (2) college or student ID; (3) concealed handgun permit; (4) Department of Revenue tax document; (5) employee or Government ID; (6) extended health care facility record; (7) hunting or fishing license; (8) license to carry firearms; (9) life insurance- poliey; (10) Medicaid/Medicare card; (11) medical, clinic, or hospital record; (12) military dependent’s ID card; (13) military draft record; (14) passport card; (15) payment statement or check stub; (16) prison ID or inmate record; (17) retirement benefits record; (18) traffic citation or court record; (19) U.S. Coast Guard merchant ID card; (20) U.S. vital statistics official notification of birth registration. (Def. Ex. 533 at 2 (tbl. 4).) Because this list is not exhaustive, the DMV will review any documents that an applicant has in his possession. (Id.)
Once a voter has all the necessary materials to acquire a free voter ID, he must travel to a DMV office providing driver’s license services. (PI. Ex. 1044 at 142.) The evidence indicated that as of the beginning of January 2016, approximately 2,172 applicants had sought no-fee voter-ID cards across the State, and '2,139 had been' issued. (Doc. 410 at 177-79; Def. Ex. 494.) The DMV currently has 114 brick and mortar sites that provide driver’s license services. (Doc. 410 at 164.) Some have
■ Sixteen of North Carolina’s 100 counties do not have a brick and mortar site. (Pl. Ex. 241 at 13.) Eleven of these counties are serviced by five DMV mobile units, which currently appear at twenty-four mobile sites. (Id.; Doc. 410 at 198-99.) No mobile site offers services more than three .days per month. (Doc. 410 at 204; Pl. Ex. 241 at 13 n.3.) Nevertheless, the DMV estimates that 98% of the its “market population” (those age 15 and older) lives within a thirty-minute drive of a DMV license service station, whether a brick and mortar or mobile site. (Doc. 410 at 168-69.) A December 2013 customer survey indicated that wait time, not DMV accessibility, was a top concern for respondents. (Pl. Ex. 1044 at 82-83; Doc. 410 at 156-57.) While the current DMV sites may be adequate for those-with access to a vehicle, the court has substantial questions about the accessibility of free voter ID for those who lack transportation, especially in rural communities that lack public transportation.
At trial, Plaintiffs presented the video depositions of several witnesses who experienced difficulty in acquiring certain qualifying licenses from the DMV. Their depositions were taken prior to SL 2015-103’s enactment of the reasonable impediment exception.
Alonzo Phillips is a sixty-one year old African American male who lives with his mother in Halifax County, North Carolina. (Pl. Ex. 1048 at 5.) Ten years ago, Mr. Phillips attempted to acquire a non-operator ID card (not a license) from the DMV, available for a nominal fee. (Jd. at 14.) He presented his social security card and birth certificate, but the DMV refused to issue him an ID because his birth certificate listed “Alonz,” while his social security card displayed his correct name, Alonzo. (Id. at 15.) To the extent Mr. Phillips seeks to use his birth certificate as a supporting document in the future, federal law requires him to correct the document.
Rosanell Eaton is a ninety-three year old African American and a lead plaintiff in this case. She is, in every respect the court can imagine, a remarkable person. In January 2015, Ms. Eaton presented to the DMV to renew her driver’s license. (Pl. Ex. 1045 at 18-19, 25.) It is not clear from her testimony, but it appears that she was concerned whether her current license
Ms. Eaton’s testimony does not make clear why her ordeal was so involved, but it is troubling that any individual could be subjected to such a bureaucratic hassle. Here, too, the problems delaying her license renewal stem from a federal law requirement. It is unclear why she did not encounter this problem previously, as her last renewal was in April 2010. (PI. Ex. 300.) But most importantly, the voter-ID law did not require Ms. Eaton to endure this hassle. To the extent Ms. Eaton wanted to continue to drive, which appears to have been the case, she had to renew her license. (PI. Ex. 1045 at 49-50.) Driver’s licenses required renewal long before SL 2013-381. But, to the extent she simply wished to comply with the ID requirement, her expiring license would have been compliant for voting. As a voter over seventy, she can use an expired license indefinitely so long as it expired after her seventieth birthday, which hers did.
Silvia Kent is a caretaker for her three disabled sisters, Katherine, Ester, and Faydeen. (PI. Ex. 1049 at 12-13.) Ms. Kent’s sisters are registered to vote ánd vote regularly. (Id. at 15-16.) While taking her sisters to vote in the November 2014 election, Ms. Kent was informed that voter ID would be required beginning in 2016. (Id. at 16-17.) Ms. Kent then took her sisters to the DMV to acquire ID. (Id. at 19.) Katherine was issued an ID, but Esther and Faydeen were not. (Id.) The birth date on Esther’s supporting ID was incorrect. (Id. at 22-23.) The DMV examiner told Ms. Kent that she would need to go to
. Maria Del Carmen Sanchez is a fifty-eight year-old United States citizen born in Cuba. (PI. Ex. 1051 at 9-11.) She took the name Thorpe when she married her husband. (Id. at 25.) She has lived in North Carolina since 1990 and is registered to vote under the name Maria Sanchez Thorpe. (Id. at 11-12.) Her unexpired passport lists her name as Maria Del Carmen Sanchez.- (PI. Ex. 836.) In 2007, six years before SL 2013-381, Ms. Sanchez went to .the DMV to renew her expiring license, which bore the name (consistent with her voter registration) Maria Sanchez Thorpe. (PI. Ex. 1051 at 23; PI. Ex. 839.) She attempted to use her passport as a supporting document to establish her age and identity. (PL Ex. 1051 at 23.) But, because the name did not match the name listed with the DMV, it would not issue her a license.
While Ms. Sanchez’s testimony demonstrates the ineptitude of government bureaucracy, her difficulty arose from her failure to update her documents after getting married and changing her name. (Id. at 25-26.) Had she updated her passport as she did her other legal documents, she could have used it to renew her license without issue.-The DMV should be faulted for being unaware of the name change affidavit option, but it cannot be faulted for finding Ms. Sanchez’s passport bearing a different name to be insufficient to establish her identity. In any event, Ms. Sanchez’s testimony is not especially probative of the current state of affairs at the DMV, as her incident occurred almost six years before SL 2013-381 and over eight years before trial.
Balanced against these testimonials was evidence of significant improvements at the DMV since the passage of SL 2013-381. In October 2013, retired U.S. Army Brigadier General Kelly J. Thomas took over as the Commissioner of Motor Vehi
The survey said that our DMV employees and our process was not helpful. They said that we were very ugly to customers. They thought that we didn’t like our jobs—our employees didn’t like their jobs. They thought the process was cumbersome. They wanted online access to more DMV access, practices and functions. They wanted credit card and debit card access.
(Id. at 157.) At trial, Commissioner Thomas testified credibly that DMV has addressed sixteen of the eighteen issues identified. (Id. at 156-57.) The two remaining are fingerprinting of customers and electronic identification, which are in study. (W. at 157.)
To address customer service, Commissioner Thomas partnered with Wake Technical Community College to create “customer 101” training for DMV employees. (Id. at 162.) In addition, recognizing that DMV examiners did not have any form of continuing education, he implemented a continuing education program for all 550 examiners. (Id. at 163.) The DMV is also in the process of implementing an online training program for examiners, which is intended to educate examiners on changes as they happen. (Id. at 164.)
The DMV has also implemented several strategies to address customer wait times. It has implemented online license renewal, used by 219,000 North Carolinians since June 2015 and saving over 60,000 wait hours, (id. at 165-66); significantly updated examiner stations to provide each examiner with a “customer-facing computer screen,” vision and sign tester, credit card/debit card machine, and camera for taking ID ■ pictures, (id. at 166-67); and rolled out an extended-hours project (keeping offices open until 6 p.m. at twenty-one sites and every Saturday until noon at eleven others) to “offer hours that citizens didn’t have to take off work,” (id. at 168; PI. Ex. 664 ¶¶ 80-83). When the extended-hours program was offered at nineteen locations (now twenty-one), eighty-six percent of DMVs market population lived within a thirty-minute drive of an extended-hours office. (Doe. 410 at 168.) As a result of these and other changes at the DMV, -the. average customer wait time across the State since April of 2015 has been reduced to nineteen minutes and forty-two seconds. (Id. at 170.)
In an effort to bring DMV locations closer to customers, the DMV has made substantial efforts to expand its mobile unit fleet. When Commissioner Thomas took over, there were five Winnebago mobile units, yet only one was operational. (Id.) Recognizing that the aging and maintenance-prone mobile units were not a productive option, the DMV has developed a “footlocker” mobile unit. (Id. at 170-71, 173.) These approximately 100-pound footlockers are basically a single examiner station in. a box. (Id. at 173-74.) They can be hauled in the back of a truck and can plug into a standard electrical outlet. (Id.) The DMV has a patent pending on the units, and Commissioner Thomas says that other States are interested in them. (Id at 174.) The State plans to have fourteen footlocker units operating across North Carolina. (Id. at 175.) Commissioner Thomas projects that the footlockers will allow the DMV to go from the twenty-four mobile sites it has today to “45 by the end of April ... .[and] 70 by the.summer of 2016.” (Id. at 211.) He sees this development as a key
All told, the DMV was an obvious choice to issue voter IDs, given its experience in issuing driver’s licenses, but it is undisputed that the agency had significant flaws in 2013. There is little persuasive evidence the legislature was aware of them, and the law did contemplate a two-and-one-half-year rollout. The evidence showed that the DMV has made substantial improvements under Commissioner Thomas during this time period. Nevertheless, the DMV has room for continued improvement, and Commissioner Thomas had to concede as much. For example, Plaintiffs’ counsel identified substantive inaccuracies in an April 10, 2015 training presentation on the voter-ID requirement that mistakenly advised, without qualification, that another State’s license was an acceptable photo ID. (See id. at 207-09.)
d. Evidence of North Carolina Voters Without ID
Plaintiffs claim that hundreds of thousands of registered North Carolina voters lack qualifying ID and that African Americans are disproportionately likely to be among them. In light of the adoption of the reasonable impediment exception, the focus of this contention is redirected to include the adequacy of the exception as a legal matter and the burden of its use.
Plaintiffs’ expert, Dr. Stewart, testified as to results of his attempts to match North Carolina registered voters’ names to names in various databases of acceptable IDs.
Dr. Stewart’s first no-match list was based on a July 16, 2014 snapshot of the voter registration files. (PI. Ex. 242 at 11.) He found that at least 397,971 (6.1%) regis
Dr. Stewart updated his no-match analysis in December 2015, after SL 2015-108, to account for its expansion of acceptable IDs, but he continued to rely on his July 16, 2014 snapshot of data. (PI. Ex. 891 at 14 n.26.) Thus, despite relying on data that is over a year and a half old during a period of rolling out notice of the photo-ID requirement, he proffers it as the “best estimate” of current conditions. (Doc. 408 at 52.) Dr. Stewart incorporated at least some of Defendants’ critiques from his pri- or no-match list, which he characterizes as his “refined matching criteria.” (Id, at 19 (tbl. II).)
In sum, Dr. Stewart was able to match 94.3% of African American registrants, 97.5% of white registrants, and 96.5% of all registrants to a qualifying ID. (Id.)
Dr. Stewart’s matching analysis in this case differs materially from his analysis in the DOJ’s attempt to block preclearance of South Carolina’s voter photo-ID law, which also includes a.reasonable impediment exception. (Doc. 408 at 60-61.) First, because South Carolina’s voter registration database contained a unique identifier—the voter’s full ' SSN (“SSN9”)—his results were more precise and were not based on the multiple “sweeps” of the lists that were necessary here. (Id. at 28-29.) Second, he did not include “inactive” voters in his South Carolina no-match analysis because, in his view, they were less “likely to vote in the future” and more likely to “soon ... be moved to ‘archived’ status,” (id. at 21-22), but he did here.
Despite breaking his results down by-active and inactive voters in his first no-match list, Dr. Stewart omitted it from his December 2015 report even though he had apparently done the analysis. (PI. Ex. 891; Doc. 408 at 138.) However, after cross-examination at trial, he produced an additional exhibit with the no-match results. (PI. Ex. 1063.) Dr. Stewart found that 151,-005 (2.6%) active voters could not be matched to a qualifying ID. (Id.) By race, 60,312 (4.8%) African American active voters could not be matched to a qualifying ID, compared to 73,143 (1.8%) whites. (Id.) Thus, Dr. Stewart was able to match 95.2% of African American active voters, 98.2% of white active voters, and 97.4% of all active voters.
The comparison between Dr. Stewart’s North Carolina and South Carolina analy-ses is telling. As noted above, even though Dr. Stewart had a unique identifier in South Carolina, he matched a higher percentage of active and inactive voters in North Carolina than he did active voters in South Carolina (96.5% in NC vs. 93.3% in SC). (PI. Ex. 891 at 19 (tbl. 11); Def. Ex. 504 at 36 (tbl. 4).)
As of December 30, 2015, 45,692 of the SBOE’s mailings had been returned to the SBOE; 38,815 of those were undeliverable, (id. at 17), and 4,992 stated they already had a qualifying ID, (id. at 18 (tbl. 6)). Although these respondents do not reveal how many of the “undeliverable” or “non-responses” lack qualifying ID, the data show that these respondents behave much more like normal voters than the no-match list as a whole. For example, only 30.1% of those who said they have qualifying ID did not vote in the 2012 presidential election. (Id. (tbl. 7).) This is consistent with the turnout of that election, where 67.2% of registered African Americans, 60.4% of registered whites, and 60.9% of all registered voters voted. (PI. Ex. 242 at 161 (App’xU).)
Defendants’ expert, M.V. Hood, III; Ph. D., Professor of Political Science at the University of Georgia,
Further, the characteristics of individuals on Dr. Stewart’s no-match list raise serious questions about its reliability. For example, those on Dr. Stewart’s no-match list were far moré likely not'to have included the last four digits of théir SSN (“SSN4”) on their registration: 59.4% of those on the no-match list were missing their SSN4, compared to 14.6% of registered voters. (Def. Ex. 511 at 12 (tbl. 1).) It may be that those who do not include their SSN4 are less likely to have an ID. But another at least equally plausible explanation is that North, Carolina’s voter registration form did .not ask for a registrant’s SSN4 prior to 2004, and even today the information is not required. (Doc. 408 at 116.) Half of Dr. Stewart’s no-match list registered before 2004. (Doc. 416 at 40.) As Dr. Thornton testified, “the fewer types of information there are to compare, the less likely it is to find potential matches.” (Def. Ex. 511 at 11.) At least nine of Dr. Stewart’s sweeps used SSN4 as a data field. (PI. Ex. 242 at 29 (tbl. 3).)
Dr. Thornton credibly identified several problems affecting the reliability of Dr. Stewart’s methodology. This court will not set forth' every criticism herein, but here are the more significant ones. Most relevant, Dr. Thornton questioned whether Dr. Stewart had done sufficient manual review of his results to ensure accuracy. (Doc. 416 at 64, 86.) Dr. Thornton has done database matching of DMV records for private sector clients in the past and asserted that she and her staff spend hundreds of hours on manual review. (Id. at 64.) Dr. Stewart did not perform a manual review of his December 2015 no-match report, but he did perform an “informal review” of his initial no-match list. (Doc. 408 at 103, 105.) Of the 397,971 individuals on the no-match list, Dr. Stewart extracted fifty for manual review. (Id. at 104.) As part of this review, he looked for common typographical errors and mistakes. (Id. at 103-04.) He identified 10-15% false negatives—where the computer did not match an individual but the voter nevertheless has .an acceptable ID in the databases. (Id. at 27,104.) Dr. Stewart considered this to be an acceptable degree of error. (Id. at 104.) By contrast, in looking for false positives—the computer makes a match even though a voter did not have an acceptable ID in the databases— Dr. Stewart and his research assistant manually reviewed 100 individuals for each sweep. (Id. at 137, 153; PI. Ex. 254 at 15-17.) As a result, Dr. Stewart manually .reviewed 3,600 individuals for false positives, but only fifty individuals for false negatives. (Id. at 153-54.)
Dr. Thornton also criticized the fact that Dr. Stewart did not have actual access to the federal databases he used for matching. (Doc. 416 at 97.) Rather, he was forced to give instructions to the federal agencies and let them run the sweeps. (Doc. 408 at 21.) The federal databases included information on the possession of passports and veteran IDs. (Id.) The problem, according to Dr. Thornton, is that database matching is an iterative process in which you identify criteria for sweeps by working with the database. (Doc. 416 at 96-97.) Without access to the database, she claims, it is difficult to determine what number and type of sweeps should be conducted. (Id.)
In sum, Dr. Stewart’s no-match list is itself only an estimate of how many voters lack qualifying ID in North Carolina.
e. Availability of the Reasonable Impediment Exception
Voters who do not have a qualifying ID retain the opportunity to vote through the reasonable impediment exception. Those so voting must complete the following process.
When voters present to vote, the first election worker they will encounter is the greeter. The greeter’s job is to “[pjrovide preliminary guidance to voters on voting
Voters will next move to the check-in station. The first question election workers will ask the voter at the check-in station is whether the voter has acceptable photo ID. (Doc. 412-2 at 7.) If the voter does not, the election worker completes a “Help Referral Form” and refers the voter to the Help Station. (Id. at 8.) The Help Referral form contains the voter’s name, registration number, address, and reason for referral. (Id.) This permits the person at the Help Desk to understand why the voter is being referred to them. (Id.) The Help Station existed long before the reasonable impediment exception was created, and it serves to assist any voter who has an issue that may prevent him from casting a regular ballot. All provisional voters, including OOP voters, are referred to the Help Station. (See hi.)
Once at the Help Station, the voter lacking photo ID must be informed of all alternative voting options available. (Doc. 412-8 at 12.) Voters who have a qualifying photo ID but forgot it or those who do not have ID but wish to acquire it prior to the canvass can cast a provisional ballot that will be counted so long as the voters present a qualifying ID at their OBOE by noon on the day before the county canvass. (Id.; Doc. 412-4 at 2.) Voters who choose this option do not complete a reasonable impediment declaration. Voters who subjectively believe a reasonable impediment prevented them from acquiring ID are entitled to vote under the reasonable impediment exception. (Doc. 424-4 at 2.) Both of these options are available throughout early voting and on Election Day. (Doc. 412-3 at 14.) Finally, voters can request an absentee ballot at the early-voting site up until the deadline for doing so (a week before Election Day). (Id. at 18-14.)
Voters who elect to vote' under the reasonable impediment exception must complete a two-step process at the Help Station. First, they must complete a provisional voting application (“PVA”). (Def. Ex. 546 at 3.) This form is not unique to reasonable impediment voters and must be completed by all voters casting a provisional ballot. (Id. (Ex. 1).) The top of the PVA is labeled “Voter Registration/Update Form” and in substance asks for the information the voter would have provided when they registered. (Id.) At polling places with electronic poll books (i.e., all early-voting sites), this part of the form will be pre-populated automatically by the electronic equipment and will not need to be completed by the voter. (Id. at 3.) The middle part of the PVA is labeled “Voter’s Affirmation of Eligibility to Vote.” (Id. (Ex. 1).) This section contains in substance the same attestation to vote that every voter casting a ballot, including those casting regular ballots, must complete. (Id. at 3; see, PI. Ex. 1056.) Reasonable impediment voters, like all other voters, will need to sign the attestation that they are otherwise authorized to vote. (Def. Ex. 546 at 3.) The bottom portion of the PVA asks voters to indicate the reason they,are voting provisionally. (Id. (Ex. 1).) For those without photo ID, this part of the PVA will pre-populate “to indicate the provisional voting reason is ‘No Acceptable ID.’” (Id. at 3.) In addition to checking an acknowledgment that they were provided alternative voting options, (Doc. 412-4 at 9), the voter will “only [need] to sign the appli
Second, reasonable impediment voters must complete a reasonable impediment declaration* (“RID”), The RID comes in two forms: the “pre-printed” version and the “SEIMS-gerierated” version. (Id. at 3.) As the names would suggest, the SEIMS-generated form is printed at the Help Desk after certain information from the SBOE’s registration database (“SEIMS”) is pre-populated into the form, whereas the “pre-printed” version is printed before the voter presents. '
With regard to the pre-printed version, the top of the form is to be completed by the election official and includes information such as “[l]ocation voted.” (Id. (Ex. 2).) Moving down the form, the next box is to be completed by the voter and asks for the voter's name, email address, phone number, date of birth, and SSN4. (Id.) The next box is labeled “Voter’s Declaration of Reasonable Impediment.” (Id.) Voters must declare that they “suffer from a reasonable impediment that prevents [them] from obtaining acceptable photo identification.” (Id.) The form then asks the voter to list the impediment(s) he suffers. (Id.) The form contains template boxes for the following impediments: “Lack of transportation”; “Lack of birth certificate or other documents needed to obtain photo ID”; “Work schedule”; “Lost or stolen photo ID”; "Disability or illness”; “Family responsibilities”; “Photo ID applied for but not received”; and “State or federal law prohibits ... listing [the] impediment.” (Id.) If any one of these applies, the voter need only check the appropriate box, although a- voter may check all that apply. (Id. (“My reasonable impediment is due to the following reason(s).”).) No further explanation is required. (Id.) If none of these reasons applies or the voter wishes to be more specific, there is also a box for “other reasonable impediment” followed by a line where the voter can explain the impediment. (Id.)
Below the statement of impediment, the voter is asked to check one of three options indicating which alternative identification document or information he is providing. (Id.) The first box is to be checked if the voter has provided his SSN4 and date of birth, (Id.) If the voter already provided this information in the top of the RID, he need only check the box. (Id.) The second box is to be checked if the voter is presenting a HAVA document showing his name and address. (Id.) The HAVA documents that qualify are. listed, and the voter need only check which applies. (Id.) They include “a current utility bill; bank statement; government check; paycheck; or other government document.” (Id.) The “other government document” option provides a line where the voter can write in the applicable document. (Id.) The third box.is to be checked if the voter has provided his voter registration card. (Id.) Finally, if the voter fails to “provide any alternative identification document or information,” there is a box for the election official to check. (Id.) The final portion of the pre-printed RID requires the voter to attest that it has not been completed “fraudulently or falsely.” (¾)
The SEIMS-generated version of the RID is substantively the same as the pre-printed form, but differs in the following ways. (Id. (Ex. 3).) First, instead of only asking for the voter’s name, email address, phone number, date of birth, and SSN4, the form contains the “Voter Registration/Update Form” box that appeared on the PVA. (Id.) This form contains more voter information than is required on the pre-printed form, but the information is
The final document the voter will receive from the poll worker is the provisional voter instructions. This form, which is provided to all provisional voters, gives the voter the information necessary to determine whether his vote was counted. (Doc. 412-4 at 13.)
Plaintiffs concede, as they must, that the reasonable impediment exception ameliorates the burden of the photo-ID requirement for some voters. Plaintiffs nevertheless claim that the reasonable impediment process places a discriminatory burden upon African Americans and Hispanics. They claim that members of these groups are (1) more likely to lack qualifying photo ID (and thus need the reasonable impediment exception) and (2) more likely to struggle in completing the RID..
African Americans are more likely to lack qualifying ID and thus elect to use the reasonable impediment exception. As noted above, Dr. Stewart’s no-match results do not establish how many North Carolin-ians lack qualifying photo ID. However, regardless of the actual number, it is more likely than not that racial disparities exist in the population that lacks qualifying photo ID. In each of the SBOE’s four no-match analyses, African Americans were less likely to be matched to a qualifying ID. (PI. Ex. 891 at 4, 6.) In addition, African Americans have disproportionately been on the no-match list in each of Dr. Stewart’s no-match analyses. (Id. at 13 (tbl. 7), 19 (tbl. 11).) In fact, the evidence shows that racial disparities grow as the no-match list becomes smaller. (Id.) Similar disparities have been found in Georgia and South Carolina. (Id. at 8-9.) Further corroborating the, results in North Carolina, Dr. Stewart has presented studies showing racial disparities in ID possession nationwide. (Id. at 9.) Dr. Stewart claims that he has yet to find a combination of acceptable IDs that will eliminate the disparities in photo-ID possession. (Doc. 408 at 159-60.) Accordingly, this court finds that, whatever the true number of individuals without qualifying IDs, African Americans are more likely to be among this group than whites.
The second part of Plaintiffs’ argument is less clear and turns on whether the reasonable impediment exception sufficiently ameliorates any alleged burden arising from disparities in photo ID possession. Plaintiffs make several arguments for why this is not the case.
Plaintiffs first express concern over the fact that reasonable impediment declarants will be provided provisional ballots. As Plaintiffs indicate, although HAVA requires provisional ballots to be given to voters in certain circumstances, it only requires those ballots to be counted “in accordance with State law.” 52 U.S.C. § 21082(a)(4). But the problem with Plaintiffs’ argument is two-fold. First, it is in conflict with Plaintiffs’ position at trial in July 2015, where they advocated for OOP provisional ballots on the grounds that
Plaintiffs next claim the State’s educational efforts have not been sufficient to make voters, especially minority voters, aware of its availability. This court addressed the sufficiency of the State’s educational efforts in its denial of Plaintiffs’ motion to preliminarily enjoin implementation of the ID requirement in the March 2016 primary. (Doc. 383.) Defendants have updated those efforts, as noted above, and the State’s educational efforts have continued and increased since the preliminary injunction decision was issued.
Plaintiffs’ primary witness on the sufficiency of the State’s educational efforts was Barry Burden, Ph.D., Professor of Political Science at the University of Wisconsin-Madison.
Plaintiffs next argue that the reasonable impediment process requires a high degree of literacy and is intimidating. Dr. Burden concluded that, even as amended, “the photo ID provision remains burdensome on voters in North Carolina, more so for African Americans and Latinos than for whites.” (Doc. 407 at 42-43.) To reach this conclusion, Dr. Burden relied on what he calls the calculus of voting.
Dr. Burden’s conclusion that the reasonable impediment exception does not sufficiently ameliorate the alleged burden from SL 2013-381 is in part based on his belief that the paperwork and process for the exception will deter low literacy individuals, who are disproportionately African American and Latino. (PI. Ex. 889 at 3, 6.) This opinion is without support. Dr. Burden is not an expert in literacy. Accordingly, he has not offered a review of the applicable forms or an opinion as to what level of literacy would be required to complete the reasonable impediment process. In sum, Dr. Burden’s testimony was of limited practical assistance to the court, as it was heavy on theory- and light on facts.
Plaintiffs also offered the testimony of several fact witnesses who work with low literacy individuals.
Ashley Lasher is the Executive Director of the Literacy Counsel of Buncombe County, North Carolina. (PI. Ex. 1050 at 8.) The Literacy Counsel’s mission is to “increase comprehensive literacy and English language skills through specialized instruction by trained tutors and access to literacy resources.” (Id. at 11.) The group offers two , adult literacy programs to adults in western North Carolina: an English-as-a-second-language course serving about 250 students per year, 85-90% of whom are Spanish-speaking; and an adult education class for low literacy individuals whose first language is English, which serves about fifty students per year split equally between African Americans and whites. (⅞ at 44-46.) Ms. Lasher is not a literacy expert, nor does she work directly with students. (Id. at 11, 14.) Instead, her role is to manage the organization, provide oversight, and participate in fundraising efforts. (Id. at 11.) Plaintiffs sought to have her opine on the ability of the group’s students to navigate a draft of the SEIMS-generated version of the RID. (Id. at 62-65.) Plaintiffs did not tender or qualify Ms. Lasher as an expert, nor did they lay adequate foundation for Ms. Lasher to provide lay opinion testimony based upon her personal knowledge and perception. Fed. R. Evid. 701. In fact, her testimony made clear that her opinions were not based on her personal knowledge and perceptions, but on the personal knowledge and perceptions of her organization’s program directors, who were not available for cross examination.
Michelle Kennedy is the Executive Director of the Interactive Resource Center (“IRC”) in Greensboro, North Carolina. (Doc. 409 at 82.) The IRC provides a series of services to the homeless or likely-to-be-homeless population. (Id. at 82-88.) One such service involves assisting the homeless in document recovery and acquiring ID. (Id. at 83-84.) Ms. Kenney testified that ID is critical to the ability for homeless individuals to transition back to self-sufficiency. (Id. at 85.) Unfortunately, due to the nature of their living circumstances, homeless individuals are more likely to lose their ID once it is acquired. (Id.) Ms. Kennedy estimates that 90% of the individuals the IRC serves are African American. (Id. at 84.) With regard to the RID, Ms. Kennedy was concerned about the form’s request for residential address and its warning that fraudulently or falsely completing it is a felony. (Id. at 100-01.) Even though the IRC’s “guests” use the IRC’s address in applying for ID and in registering to vote, (id. at 109-11), she was concerned that a “vett[ing]” of that address “would, show ... that [it’s] a commercial address and, therefore, not a residence,” (id. at 100). Ms. Kennedy was also concerned that many of the IRC’s guests would not know their SSN4. (Id. at 99.)
Maria Unger Palmer is a plaintiff in this case and has extensive experience in get out the vote (“GOTV”) efforts, .including efforts targeting Hispanics. (Doc. 410 at 7-8.) In her future outreach efforts, Ms. Palmer does not plan to use the reasonable impediment exception because she believes it is intimidating and “requires a high level of literacy.” (Id. at 12.) She is not a literacy expert but “was a schoolteacher and a school principal and trained [individuals] in testing.” (Id. at 25.) Although Ms. Palmer has volunteered as a translator at the polls in the past, she says State-provided interpreters are not available. (Id. at 14.) Without an interpreter, she believes, many low literacy Hispanic voters will not have the literacy skills to complete the reasonable impediment process. (Id. at 14-15.)
Examination of the reasonable impediment voting process and the process of other voting mechanisms reveals that the concerns of these fact witnesses are not well-founded. Every North Carolina county uses electronic poll books during early voting. (Id. at 90; Doc. 414 at 128.) Many, but not all, also use electronic poll books on Election Day. (Doc. 410 at 90.) Where electronic poll books are used, the PVA (step 1) and the SEIMS-generated version of the RID (step 2) will pre-populate with the voter’s registration information, including residential address. (See Doc. 546 at 3.) This means that if an IRC guest were to use the IRC’s address when registering to vote, that address will pre-populate into the residential address field on both forms. (See id.) Those who present at one of the voting locations without electronic poll books can complete the pre-printed version discussed above. (See id. (Ex, 2).) This version features larger print and requires less information from the voter. (See id.) Further, in completing either form, voters can receive assistance from any person of
Further, Plaintiffs have failed to demonstrate that the reasonable impediment voting process is more difficult than other voting mechanisms that Plaintiffs either advocate for or have not challenged.
First, the PVA stage of the reasonable impediment process (step 1) must be completed by all provisional voters, including OOP voters. All such voters must report to the Help Station and complete the PVA, which requires the voter to pi’ovide the same voter registration-related information as required by the RID and attest that it is not provided “fraudulently or falsely.” (Def. Ex. 546 (Ex. 1).) As with most voter-related forms, the PVA contains phrases, such as “attest,” “provisionally,” ■ “affirmation,” and “fraudulently.” (Id.) Residential address is also a required field. (Id.) Nevertheless, as noted below, a disproportionate share of African Americans and Hispanics cast OOP ballots, and thus necessarily completed the provisional voting application, when OOP was in place.
Second, all voters are required to complete a voter registration form. (See PI. Ex. 212A.) Those wishing to use SDR were required to complete a voter registration form at the polling place. Residential address is a required field on the voter registration application. (Id.) In bold, red print next to the signature line, the registrant is warned that “fraudulently or falsely completing” the registration application is a felony. (Id.) Nevertheless, as noted above, African American registration rates exceed
Third, every voter is required to complete an ATV (authorization to vote) form. (Doc. 410 at 91-93.) This was true both before and after the voter-ID law. (Id.) Accordingly, as Plaintiffs’ counsel pointed out, if over 4.3 million North Carolinians voted in the 2008 Presidential election,then over 4.3 million North Carolinians completed an ATV form. (Id. at 93.) To complete the ATV form, the voter must attest that the address he provided is correct and that he has not voted in the election. (PI. Ex. 1056.) Here, too, the voter is warned that “fraudulently or falsely completing” the ATV is a felony. (Id.) Thus, to the extent that the IRC’s guests are concerned about attesting that the IRC’s address is their residential address, this concern predates the voter-ID law and will remain regardless of the method of voting employed. (Id.) In addition, as with many voting related forms, there are phrases such as “fraudulently,” “hereby certify,” and “violation of NC law.” (Id.)
The fact that so many minority voters have successfully navigated these forms over the years strongly suggests that their experience with the RID will not be different. The SEIMS-generated version may have slightly smaller print, (Def. Ex. 546 (Ex. 3)), but the same is true of the forms discussed above. The pre-printed version appears to have larger print than any of these forms. (Id (Ex. 1).) The RID only requires two pieces of information from the voter that are not redundant of other forms. First, the voter must provide alternative identification. (Id. (Ex. 3).) Even assuming Ms, Kennedy is correct that many of the IRC’s guests do not know their SSN4, (Doc. 409 at 99), the SSN4 is just one form of acceptable alternative identification, (Def. Ex. 546 (Ex. 3)). Voters also can provide an acceptable HAVA document or their voter registration card. (Id.) All registered voters receive a voter registration card, and all SDR voters had to present a HAVA document in order to vote. The second piece of non-redundant information is the section where the voter states his impediment to acquiring acceptable ID. (Id.) But even this part of the form is designed for ease of use. Rather than require the voter to write in his own impediment, the form contains a non-exhaustive list of eight qualifying impediments, and the voter need only check one or more that , apply. As noted above, the voter can receive whatever assistance is necessary to make this determination.
Plaintiffs , next argue that the reasonable impediment challenge process is likely to be implemented in a discriminatory and intimidating fashion. As noted above, a provisional ballot cast under the reasonable impediment exception must be counted and can only be rejected on the basis of the impediment provided if the listed impediment is “factually false, merely denigrate[s]” the ID requirement, or is “obviously nonsensical.” N.C. Gen. Stat. § 163— 182.1B(a)(l). A voter’s reasonable impediment declaration can become subject to scrutiny through either a voter’s evidentia-ry challenge or the CBOE’s review of provisional ballots. (See Def. Ex. 547.)
CBOEs are required to “make redacted copies of all Reasonable Impediment Declaration forms available to the public upon request,” (id. at 1), and any voter registered in the same county as the reasonable impediment voter may make an “evidentia-ry challenge” to the reasonable impediment declaration, N.C. Gen. Stat. § 163-182.1B(b)(l). There are significant procedural limitations on the reasonable impediment challenger. Challenges may only be made on the SBOE’s Evidentiary Challenge form, (Def. Ex. 547 at 7), and must be “submitted no later than 5:00 P.M. on the third business day following the elec
Once a challenge has been made to the factual veracity of the reasonable impediment, the CBOE office is instructed to closely inspect the evidentiary' challenge form to “ensure the form has been completed fully, including a signature and contact information for the challenger.” (Id. at 2.) To be complete, the challenge form must be notarized. (Id. at 7.) If the CBOE determines that the challenge form is complete and timely presented, the CBOE must send written notice of the challenge to the voter and the challenger by mail. (Id. at 3.) At a minimum, the notice must contain the following:
Name and address for the voter and the challenger; A statement indicating that an evidentiary challenge has been entered ... disputing the factual truthfulness of the reasonable impediment claimed by the voter; A statement that the county board of elections will hold a hearing at [date, time, and location] during which it will decide whether the challenger has shown by clear and convincing evidence that the claimed impediment merely ■ denigrates the photo identification requirement, is obviously nonsensical, or is factually ' false; A statement that the voter may appear in person or through an authorized representative to present evidence supporting the factual veracity of the impediment; [and] Copies of the Reasonable Impediment Declaration form (redacted) and the completed Evidentiary Challenge Form.
(Id.) CBOEs are directed to provide the “maximum notice possible to the voter,” and in addition to written notice “should make every effort to contact the voter via phone, email, and any other available means of contact.” (Id.) The CBOE office is also directed to notify CBOE board members, the county attorney, and the SBOE of the challenge. (Id.) All Evidentia-ry Challenge forms must be forwarded to the SBOE. (Id.) The SBOE plans to use its legal team to provide oversight of challenges and ensure CBOEs are following proper procedure. (Doc. 414 at 215-16.)
On the day of the canvass, the CBOE “is required to conduct a hearing on the challenge in an open meeting and render 'a determination on the provisional ballot.” (Def. Ex! 547 at 3.) The county attorney’s role at the evidentiary hearing is to provide CBOE board members with guidance on the standard of review. (Id. at 4.) The standard of review to be applied by the CBOE is “[w]hether, having considered all facts in the light most favorable to the voter, the challenger has shown by clear and convincing evidence that the stated impediment (1) merely denigrates the photo identification requirement, (2) is obviously nonsensical, or (3) is factually false.” (Id. (emphasis added).) CBOEs have been trained that “[l]ight most favorable to the voter” means “[i]f you can view a fact in a, way that helps the voter, you must view it that way.” (Def. Ex. 551 at 55.) They have also been trained that “[c]lear and convincing evidence” “is greater than ‘more likely than not’” and means “[e]vidence which should fully convince you.” (Id.) “The challenger bears the burden of proof and persuasion at the hearing.” (Def. Ex. 547 at 4.)
At the challenge hearing, the CBOE is to first provide the challenger the opportunity to speak and present evidence. (Id. at 5.) The challenger’s presentation is to be limited to “substantiating facts already alleged in the Evidentiary Challenge form.”
After giving the parties an opportunity to speak and present evidence, the CBOE must deliberate in open session. (Id. at 5.) Each CBOE is comprised of three members, no more than two of which can be from the same party as the governor. N.C. Gen. Stat. § 163-30. A CBOE cannot “find a challenge valid if it provides only evidence regarding the reasonableness of the impediment.” N.C. Gen. Stat. § 163— 182.1B(b)(6). For example, CBOEs have been trained that if a voter checks the box for “photo ID applied for but not received,” a challenge could not be sustained on the ground that the voter “ ^waited until the last minute’ to apply for a photo ID.” (Def. Ex.. 547 at 2.) If the SBOE has reason to believe that a CBOE has rejected a RID on the basis of the reasonableness of the impediment provided, the SBOE intends to use its supervisory powers to correct this problem. (Doc, 414, at 216.) In sum, the CBOE must reject the challenge unless two of its three méníbers find that, even viewing the evidence in the light most favorable to the voter, the challenger has carried his burden of showing by clear and convincing evidence that the stated impediment is either factually false, merely denigrates the photo-ID requirement, or is obviously nonsensical. (Def. Ex. 547 at 5.)
The second way a RID may become subject to scrutiny is through the CBOE’s review of provisional ballots. (Id. at 6.) The CBOE’s ability to reject a RID on the basis of the impediment provided is very limited. First, the CBOE “may not question the factual veracity of a claimed impediment” without completing the formal hearing process described above. (Id.) Second, if the voter cheeked one of the “template impediments,” such as “lack of transportation” or “work schedule,” the CBOE cannot reject the impediment on the basis that it merely denigrates the ID requirement or is obviously nonsensical. (Id.) This is because the SBOE considers the template impediments to be non-denigrating and ■ not nonsensical as a matter of law. (Id.) Accordingly, the only way the SBOE claims a CBOE can reject a reasonable impediment--declaration without a formal hearing is if the voter has checked the “other reasonable impediment” box and provided a written description that the CBOE has grounds to believe merely denigrates the ID requirement or is obviously nonsensical. (Id.) All facts must still be viewed in the light most favorable to the voter,
[A] voter who writes “baseball player” on the Reasonable Impediment Declaration form could be attempting to more specifically indicate the voter’s profession, which has impeded the voter fromobtaining acceptable photo ID. Such a claim would be equivalent to the “work schedule” impediment already deemed valid as a matter of law. Accordingly, a county board could not disregard the factual question at issue and consider “baseball player” as merely denigrating the photo identification requirement or as nonsensical, and as a result throw out the ballot.
(Id.) Finally, CBOEs have been instructed that, in considering non-template impediments during the canvass, the CBOE must
bear in mind that (1) the voter has declared the impediment under penalty of a Class I felony, (2) the voter could have easily chosen to mark one of the template impediments, and (3) election officials were able to review alternative identification documents or validate the voter’s social security number and date of birth.
(Id.) Even if a voter’s listed impediment is ultimately found to be factually false, merely denigrating, or obviously nonsensical, the SBOE will refer the voter for prosecution only where its investigative team finds that “there was intent to commit a violation.” (Doc. 414 at 137.)
The statute governing challenges to RIDs does not provide an appeal process for reviewing a CBOE’s rejection of a declaration. See N.C. Gen. Stat. § 163-182.1B; (Doc. 410 at 134). However, the SBOE has supervisory authority over-all elections in the State and has “statutory authority to take any petition or complaint of any alleged misconduct of a county board of elections or their failure to carry out their duties in administering the law.” (Doc. 414 at 138); N.C. Gen. Stat. § 163~22(a),(c). Pursuant to this authority, Director Strach asserts that a voter who believes her RID has been erroneously rejected could file a petition or complaint that the SBOE could review. (Id. at 216-17); N.C. Gen. Stat. § 163-22(c) (“[T]he [SBOE] shall have the right to hear and act on complaints arising by petition or otherwise, on the failure or neglect of a [CBOE] to comply with any part of the election laws imposing duties upon such a board. The [SBOE] shall have power to remove from office any member of a [CBOE] for incompetency, neglect or failure to perform duties, fraud, or for any other satisfactory cause.”). If the CBOE’s failure to follow proper procedure affected the outcome of an election in the county, then the complaint could be made in the form of an election protest. (Doc. 414 at 217.) Election protests must be resolved before votes are canvassed and the results certified. (Id.)
At trial, Director Strach answered hypothetical questions, including some extensive questioning from the court, on whether certain challenges would contest factual falsity or the reasonableness of an impediment. She was asked “[i]f someone says, I have [a] lack of transportation, and the challenger says they have access to a car one day a week, can that be demonstrated to be factually false, or is that a question of reasonableness?” (Doc. 414 at 207-08.) She replied that she “think[s] that’s a question of reasonableness.” (Id. at 208.) She was then asked the same question, but the challenger presented evidence that the voter has access to a bicycle. (Id.) Again she x-eplied that she believes that would only go to reasonableness. (Id.) In her view, “[i]f [the challenger] is only able to provide that [the voter] has access to transportation ... that would go to the reasonableness of it, and that would not be able to be deemed not factual.” (Id. at 207.)
With regards to “disability or illness,” Director Strach was asked “if someone checks the box of disability or illness, and somebody comes forward and says they have evidence that they are not ill or not disabled,” could the challenge be sustained as factually false? (Id. at 208.) For the challenge to be sustained, Director Strach
. Director Strach was next asked, “[i]f a voter checks the box [for] lack of birth certifícate or other documents needed to obtain photo ID and the person is challenged, and the challenger comes forward with proof that the person factually has two of the documents [that are sufficient to establish identity and age at the DMV],” then can the challenge be sustained? (Id. at 209.) She replied that the challenge could only be sustained if the challenger could show by clear and convincing evidence that the voter “actually possessed” all of the necessary documents to acquire a qualifying ID. (Id. at 209-10 (emphasis added).) Of course, the voter’s evidence would be considered as well. Thus, if, for example, a challenger were merely to offer evidence from a database that the voter was issued a certain type of supporting document, it would not be sufficient to sustain the challenge under Director Strach’s testimony because it would not prove actual possession. (See id.)
Director Strach was next asked “[i]f somebody comes in and says they are homeless and they’ve had their ID stolen, can they check the box [for] ‘lost or stolen ID’?” (Id at 210.) She replied that this would be a proper use of the RID. (Id.)
Director Strach was also asked “[i]f a voter were to name any family responsibility, and as long as factually there was such a responsibility, can that then be questioned further, or does that then become a question of reasonableness?” (Id.) She replied that so long as any family responsibility existed, any challenge would go to reasonableness. (Id.)
Finally, Director Strach was asked “[w]hat happens if [a voter] check[s] more than one box and it turns out that one of the boxes is factually false but another box is not?” (Id. at 213.) She replied that “in the light most favorable to the voter ... it can still be counted if at least one of them is correct and truthful.”
In light of the reasonable impediment challenge process described above and the testimony of Director Strach, the court finds that Plaintiffs have failed to show that the reasonable impediment challenge process is likely to be applied in an intimidating or discriminatory manner. The law gives every advantage to the voter and places every burden upon the challenger. A challenge cannot be made without the challenger first putting his own neck on the line and swearing before a notary that “all the facts .... alleged in connection with th[e] challenge are true and accurate to the best of [the challenger’s] knowledge.” (Def. Ex. 547 at 7.) Fraudulently or falsely completing the challenge form is punishable as a felony. (Id.) Based on this record and absent actual fraud, reasonable impediment challenges appear to be highly unlikely. Although the United States monitored South Carolina’s implementation of its voter photo ID and reasonable impediment law, neither it nor any other Plaintiff has directed this court to a single challenge there, much less a challenge where the factual falsity provision was used to arbitrarily disenfranchise a voter. This is significant, because South Carolina has been applying effectively the same reasonable impediment exception since 2013.
Over the past two decades, early voting has grown in popularity nationally, while participation in Election Day voting has waned. Absentee mail-in voting, however, remains more popular nationally than early in-person voting. (PL Ex. 40 at 5—6.) Despite the national growth in popularity, sixteen States do hot offer any form of early in-person voting; two ' of these States—Oregon and Washington—conduct elections almost entirely through the mail.
Among the States offering early voting, tremendous variation exists, ranging from three to forty-six days. (Id. at 23.) And even within a State, there can be variation from county-to-county and election-to-election. (Id. at 24.) In 2014, when North Carolina offered ten days of early voting, the national median of all States and the District of Columbia was eleven days of early voting. (Id. at 23.) Twenty-one States offered fewer than ten days of early voting; twenty-six States offered more than ten days of early voting. (Id.) An analysis of the length of the early-voting period
The types of days offered for early voting also varies by State. North Carolina, both before and after SL 2013-381, is in the minority of States that offer any weekend voting. (Id. at 35.) North Carolina is in a super-minority of States that permit voting on-a Sunday. (Id.)
Election law scholars, including Plaintiffs’ own expert witnesses, refer to early voting as a form of “convenience voting.” (See, e.g., PI. Ex. 42 at 59; Def. Ex. 2 (Ex. 11) at 639; Def. Ex. 348 at 95.) A fundamental component of Plaintiffs’ claim is that early voting increases participation. It would seem obvious that the introduction of convenience voting would have the effect of increasing political participation. But there is a somewhat surprising scholarly consensus, created in no small part by Plaintiffs’ own expert witnesses, that not only is this not demonstrated, but that empirically early voting actually tends to depress participation. (See, e.g., Def. Ex. 346 at 92-93; Def. Ex. 348 at 95.)
According to Plaintiffs’ experts, political participation is defined in terms of voter turnout and registration rates. (See, e.g., Doc. 331 at 113.) As Plaintiffs’ expert, Paul Gronke, Ph.D., Professor of Political Science at Redd College,
[W]e remain skeptical of those who advocate in favor of early voting reforms primarily on the basis of increased turnout. Both these results, and prior work in political science, simply do not support these claims. There may be good reasons to adopt early voting—more accurate ballot counting, reduced administrative costs and headaches, and increased voter satisfaction—but boosting turnout is not one of them.
(Def. Ex. 2 (Ex. 11) at 644; see also id. (Ex. 12) at 26 (“The research thus far has already disproved one commonly made assertion, that early voting increases turnout. It does not;”) (emphasis added).) Early voting “mak[es] it more convenient to be sure, but pal[es] in significance to such effects as feelings of citizen empowerment, interest in and concern about the election, and political mobilization by parties, candidates, and other political organizations.” (Id. (Ex. 11) at 644.)
Another of Plaintiffs’ experts, Dr. Burden, has written:
The added convenience of early voting decreases the direct costs of voting, but this effect is more than offset by a reduction in mobilization efforts, resulting in lower net turnout. ... Our unambiguous empirical claims are based, on multiple data sources and methods: despite being a popular election reform, early voting depresses net .voter turnout.
(Def. Ex. 348 at 95-96,108 (emphasis added).)
Given these findings by Plaintiffs’ own experts, it is of little surprise that there is no evidence in this case that North Carolina’s introduction of early voting or use of seventeen days of early voting caused increased political participation either overall or for'any racial subgroup.
That said, following national trends, North Carolinians have begun using early in-person voting with increasing frequency. For example, in 2000, 89.3% of North Carolinian voters voted on Election Day, while only 8.1% voted early. (PL Ex. 42 (Ex. 36).) In 2008, however, early voting saw the greatest increase in use ever and constituted the most popular method of voting, being used- by 48.7% of North Carolinian voters. (Id.) In 2014, only 37.4% of voters used early voting, compared to 60.0% voting on Election Day. (PI. Ex. 242 at 159.) Thus, while early voting has become increasingly popular, its popularity in relation to Election Day voting varies by year and election cycle.
The rates of early voting by racial subgroups also varies. Among voters for North Carolina general elections held from 2000 to 2012, white and African American use was nearly the same, except for three elections.
Results also vary when broken down by the first seven days of early voting removed by SL 2013-381.
Accordingly, the evidence shows that, although African Americans disproportionately used the first seven days in the aggregate, racial disparity turns on whether the election is a midterm or general election. (Id.) Moreover, the last ten days of the seventeen day early-voting period were the ones most heavily used, even by African American voters.
In terms of age, the turnout of registered “young” voters (those aged 18 to 24, by the Plaintiffs’ own definition) increased from 17.5% in 2010 to 18.0% in 2014.
To look at the impact of the change in the early-voting schedule, it is helpful to compare specifically the 2014 midterm general election—the first general election under SL 2013-381—to the prior comparable midterm general election in 2010. If having fewer days of early voting harms political participation, one might expect there to be evidence of decreased turnout between the elections. Plaintiffs’ expert, Dr. Gronke, predicted as much to this court in the run-up to the 2014 general election: .
I conclude from the analyses in this report that the changes to early in-person voting that I have reviewed—eliminating the first seven days of one-stop early voting—will have a differential and negative impact on the ability of African Americans to cast a ballot in North Carolina. I know of no empirical argument by which one could conclude that African-American voters—or any voters for that matter—will successfully adjust to 40% fewer early voting days, regardless of the possibility of longer hours on those days.
(PI. Ex. 40 at 39.) Dr. Stewart made similar predictions of adverse impact. (PI. Ex. 42 at 56-59, 89 (“Provisions in HB 589 intended to ameliorate the reduction in early voting days are unlikely to succeed.”) These analyses were cited by Plaintiffs to support their claimed need for a preliminary injunction in this case.
Contrary to these prognostications, however, turnout in the 2014 midterm general election (compared to the 2010 midterm general election), actually increased for both African Americans and whites after SL 2013-381. (Def. Ex. 309 at 59-62.) More pertinent, the 2010 disparity in turnout . rates between white and African American voters decreased in 2014, after SL 2013-381. (Id.) African American use of early in-person voting increased by 7.2%, which exceeded the 1.9% increase observed among whites and the 1.6% increase among Hispanics. (Id. at 68-69.) These turnout numbers are contrary to Plaintiffs’ experts’ predictions and contradict the claim that SL 2013-381 has a negative, disparate impact on African Americans or Hispanics. (See also id. at 62; Def. Ex. 268 at 35.) As an apparent response to this dqta, Plaintiffs articulate their claim that, while they have increased their registration and turnout, it has become harder for them to do so. But this is unpersuasive.
Drs. Gronke and Stewart reached their inaccurate predictions, in part, by extrapolating from Florida’s experience when it reduced early voting from fourteen to eight days.
In Florida’s 2012 general election, after the reduction of six days of early voting, there was significant congestion and a decrease in the number of early voters when compared to 2008. (PL Ex. 42 at 83-87.) In attempting to extrapolate Florida’s experience to North Carolina, however, Plaintiffs’ experts failed to consider several material differences between the two States’ programs, including the type, quantity, and quality of the voting machinery; the capacity or number of the early-voting facilities; the complexity of the ballot; and the number of available poll workers. (Doc. 333 at 73-76.) Importantly, Florida had a fairly complex ballot in 2012, with multiple referenda in multiple languages, which likely affected congestion. (Id. at 75-76; Doc. 335 at 52-54; PI. Ex. 49 at 6 (Plaintiffs’ expert Theodore T. Allen, Ph.D., Professor of Integrated Systems Engineering at Ohio State University, opining that the length of the ballot directly relates to congestion).) Florida also offers fewer early-voting sites than North Carolina. (Def. Ex. 270 at 36-37.) And while “most” counties maintained similar hours as before, not all did or were required to do so, as in North Carolina. (PL Ex. 40 at 28.) Compared to 2008, Floridians’ use of early voting declined by 10.7% in 2012, after eliminating six of its fourteen days of early voting. (Id.
Plaintiffs supported their congestion argument with a “wait-time” analysis of early voters by Dr. Stewart. The analysis was based on his internet survey of persons who claimed to have voted in the 2008 and 2012 general elections (before SL 2013-381). In his April 2014 report, Dr. Stewart concluded that North Carolina’s early-voting lines were already congested in 2008 and 2012, based on his survey data showing that 27.2% of North Carolina’s early voters waited more than thirty minutes, compared to only 15.8% of early voters nationwide.
Dr. Stewart’s wait-time opinion suffers from a number of important flaws, rendering it unpersuasive. .First, his conclusion assumes that North Carolina’s early-voting system in 2010 was operating at full capacity, such that any additional burden would automatically result in greater wait times. Such an assumption is not supported by the record. And to the extent that increased wait times correlate, with persons becoming too frustrated to vote, the actual early-voting figures from 2014 demonstrate an increase in the number of people successfully casting an early ballot.
Second, Dr. Stewart’s surveys were based on very few observations. In 2008, only ninety-five respondents claimed to have been North Carolina early voters; in 2012, only ninety-one, and in 2014, 425.
Fourth, even assuming the respondents truthfully reported whether they voted, the survey design assumes a level of human memory that is unrealistic.
in addition, Defendants’ evidence indicated that long wait times were not common in the 2014 general election.
The SBOE’s survey, however, suffers from its own methodological shortcomings. First, there is no evidence that CBOEs were notified that they would be asked about wait times until after the election. (PL Ex. 817 at 73-74.) Second, it does not appear that CBOEs had any mechanism to measure wait times. (See id.) Nevertheless, if a significant voting problem occurs, CBOEs are likely to learn of it. Accordingly, while the SBOE’s survey has its own reliability problems, it is some evidence that, contrary to Dr. Stewart’s assertions,
For all of these reasons, the court declines to credit Dr. Stewart’s wait-time analysis.
An additional reason Plaintiffs’ experts’ predictions did not come to pass is that they refused to engage in meaningful analysis of SL 2013-381’s same-hours requirement. Before the 2014 general election, Dr. Stewart opined that North Carolinians most frequently early vote in the middle of the day; he believed that any new hours added to satisfy the same-hours requirement would have to be added at less-used times, such as in the evenings. From this, he opined that the same-hours requirement would have little ameliorative effect on the reduction of early-voting days. (PI. Ex. 42 at 75-79.)
This opinion made little sense then and has been further discredited by the results of the 2014 general election. Dr. Stewart examined figures from 2012, which showed that most early voters went to the polls between 11:00 a.m. and 4:00 p.m. (Id. at 77.) From this use data, he concluded that voters prefer to vote in the middle of the day and will be neither able nor willing to vote at other times of the day. (Id. at 76-79.) However, before SL 2013-381, relatively few evening or weekend hours were offered. (See PI. Ex. 242 at 80 (fig. 12).) Therefore, while patterns of early-voting use could have been a function of voter preference, it appears more likely they were a function of early-voting availability.
A simple example reveals the false assumptions in Dr. Stewart’s logic. One of Plaintiffs’ challenges to the reduction of early-voting days is that African American voters prefer to vote early on that first Sunday when their church provides transportation to polling sites. However, in 2010, no African American voted on the first Sunday of early voting. (Def. Ex. 268 at 40.) One might conclude, therefore, that African Americans do not prefer to vote on Sundays. But that would be wrong because, in fact, no county elected to offer early voting on the first Sunday during early voting in the 2010 midterm election. (See Doc 126-4 at 45-90.) Therefore, use can be a function of mere availability, not necessarily preference.
Similarly, based on the 2014 data, it is clear that North Carolinians respond to new early-voting opportunities. In 2014, counties complied with the same-hours requirement by expanding evening and weekend hours. (See, e.g., PI. Ex. 242 at 80,167.) Looking at the data, it is apparent that the change in use from 2010 to 2014 followed the change in availability. The number of available weekday evening hours (from 5:00 p.m. to 8:00 p.m.) increased by 75.6%, and the number of votes cast during evening hours increased by 87.6%. (PL Ex. 242 at 167-68.) Likewise, the number of available weekend hours increased by 55.4%, while the number of weekend votes increased by 42.2%. (Id.) Evening hours are more convenient for many voters than midday hours because citizens can vote after leaving work. (See Doc. 335 at 80.)
In addition, SL 2013-381 resulted in more early-voting sites than were available
Even if preferences can be inferred from use, an inference Dr. Stewart consistently tries to draw, then the data suggest that voters “prefer” the early-voting schedule of 2014 over that of 2010 because, in actuality, they heavily used the new hours. Actual 2014 turnout suggests strongly that the new early-voting schedule did not deter voters and that the prior schedule was not necessarily the preferred one.
Plaintiffs have urged that it will be difficult for voters—African Americans in particular—to adjust to the new early-voting schedule. Dr. Gronke supplemented his 2014 report after the 2014 general election to conclude that African American early voters from 2012 were more likely not to vote in 2014 than white voters, thus asking the court to infer that such voters were likely deterred by the new early-voting schedule. He did this through a “voter transition” analysis, explaining:
[Rjather than look at aggregate turnout totals, we can examine the behavior of individual early voters before and after the reductions to early voting were implemented. This transition analysis has the advantage of comparing the same pool of voters across different elections and different legal contexts, and focuses on voter behavior at the individual level, rather than on aggregate vote totals. This is perhaps the best way to try to isolate the impact of the legal changes on an individual’s tendency to cast a one-stop ballot.
(PI. Ex. 234 at 11.)
Dr. Gronke identified white and African American voters who had voted early in 2012 to examine how they voted in the 2014 midterm election. He provided an illustration of his analysis, (id. at 12 (fig. 4)), and pointed to multiple disparities. First, 39.41% of African American 2012 early voters did not vote at all in the 2014 midterm election, which Dr. Gronke denominates a “drop-off rate,” compared to only 31,86% of white early voters. (Id.) White 2012 early voters were also more likely to vote early again in 2014 or to vote on Election Day in 2014 compared to African Americans. (Id.) From these disparities, he concludes, “There are a number of possible, non-mutually exclusive, reasons for these disparities. But they provide some evidence that, contrary to the claim that voters can easily adapt to a shorter period of time for early voting, African American voters may have been less able to adapt than were White voters.” (Id, at 13.)
A more comprehensive analysis, however, reveals that Dr. Gronke’s “disparities” are actually part of a pattern unrelated to, and in fact pre-dating, SL 2013-381.
Overall, Dr. Gronke’s analysis disguises the fact that white turnout levels frequently exceed African American turnout levels in midterms, but that African American turnout levels have exceeded white turnout levels in the 2008 and 2012 presidential elections. (PL Ex. 242 at 161 (App’x U).)
More importantly, Dr. Thornton applied Dr. Gronke’s method of transition analysis of 2012-2014 to 2008-2010, the previous comparable transition (presidential-to-midterm), which was a period not impacted by SL 2013-381. She found similar disparities between whites and African Americans as Dr. Gronke had found for the impacted transition period—except that the disparities were even greater in the 2008-2010 transition. Among African American early voters in 2008, 41.18% did not vote in 2010, compared to only 33.14% of whites. (Def. Ex. 309 at 73.) Thus, the white-African American drop-off disparity from 2008-
Further undermining Plaintiffs’ contention that African Americans are less, able to adjust to the remaining days of early voting is Dr. Thornton’s drop-off transition analysis regarding users of the eliminated seven days of early voting. She identified those who voted early during the first seven days in 2010 and examined whether they voted in 2014. (Def. Ex. 362 at 1.) She found that those who voted in the first seven days of early voting in 2010 were more likely to have voted in 2014 than those who voted in the last ten days. (Id.; Doc. 338 at 134-41.) This conclusion is valid for both African American and white voters. (Def. Ex. 362 at 1.) Dr. Thornton conducted similar analyses for the transition periods of 2008-2010 and 2012T2014. (Id. at 2-3.) She found that those who voted during the first seven days of early voting in 2012 were more likely to vote in 2014 than were the same 2008 early voters transitioning to 2010. (Id.) Importantly, this conclusion is valid for both African American and white voters. (Id.) Accordingly, although Plaintiffs have established that African Americans disproportionately used the first seven days of early voting during general elections, Dr. Thornton’s analysis tells us something about these early voters regardless of their race: they are not the marginal voter, but instead are more motivated and adaptable than other early voters.
Plaintiffs also offered the testimony of several fact witness in support of their claims.
It is unfortunate that Ms. Pitt did not vote, but her difficulties, and the line she experienced, were at least in part due to technological difficulties (fewer computers than in prior years) not attributable to SL 2013-381. Put simply, SL 2013-381 did not change the number of computers available to precincts on Election Day. In addition, Ms. Pitt had not tried to vote early and did not know how long the lines were during early voting. (Id. at 25.)
Finally, Plaintiffs contend that the new early-voting schedule disproportionately burdens African Americans by removing a “souls-to-the-polls”
In sum, the court has evaluated all of the evidence surrounding the impact resulting from the change in the early-voting schedule. In light of the same-hours requirement, the evidence does not demonstrate that the new early-voting schedule results in a reduced opportunity to vote or imposes a burden on voters. Nor does the evidence show that the new schedule disparately and negatively impacts the political participation of African Americans, Hispanics,
Contrary to all of Plaintiffs’ dire predictions, turnout actually increased for all voters under SL 2013-381. In many ways, the new early-voting schedule is an improvement for all North Carolina voters. Comparing 2010 to 2014, the new schedule resulted in 24.32% more early-voting sites, 72.14% more evening hours (with 45 counties newly offering evening hours), 4 counties newly offering Sunday hours, and 26.62% more Sunday hours overall. (Def. Ex. 13.) There was also no persuasive evidence that the new schedule increased lines at early-voting centers or that such lines deterred minority voters. (See Doc.
There was also no persuasive evidence that voters were habituated to the old schedule or had any difficulty adjusting to the new schedule. In fact, voters who testified at trial did not even seem to be aware of how many days were offered under the old or new law without being prompted by Plaintiffs’ counsel. (Kg., Doc. 331 at 167-69, 173 (Nadia Cohen: did no research into voting deadlines, conceding that “voting is not my top priority”); PI. Ex. 721 at 19 (Sherry Durant: “it was basically going from what did you say, 15 to ten” days).)
For these reasons, Plaintiffs have failed to show that it is harder for any voter, including African Americans, to vote under the ten-day early-voting schedule given the same-hours requirement. Plaintiffs’ predictions for the 2016 presidential election are unpersuasive, and the 2014 results demonstrate that the ten-day voting schedule and the same-hours requirement combine to produce more high-convenience voting hours. In addition, the evidence shows that, regardless of race, those who voted, during the first seven days of early voting under the seventeen-day early-voting schedule are more likely to vote under the ten-day schedule than are those who voted in the last ten days of the former seventeen-day schedule. Likewise, the evidence indicates that churches are positioned to take advantage of the new voting sites and hours in their GOTV efforts. For these reasons, while the ten-day early-voting schedule makes early voting different, Plaintiffs have failed to prove that it makes voting harder.
3. Elimination of SDR
During the six years it was permitted, SDR allowed citizens to register and then vote at an early-voting site during the early-voting period. Session Law 2013-381’s elimination of SDR returned North Carolina to the pre-2007 state of affairs, and voters must comply with North Carolina’s twenty-five day registration cut-off in order to be eligible to vote. Even after the repeal of SDR, however, a voter who has moved within his county may update his registration information, including a change of address, during early voting or on Election Day, and vote. See N.C. Gen. Stat. § 163-82.6A(e).
SDR had limitations. It was available only during the early-voting period and not on Election Day (the latter being known as Election Day Registration (“EDR”)). It was also available only at designated early
Plaintiffs’ expert, Dr. Stewart, described the type of person who tended to use SDR:
Some people register in “blackout periods” in the weeks preceding elections. Based on research about voter registration in the political science literature, it is clear that many of the registrations that occur during blackout periods are people who are not normally attentive to public affairs, who have become attuned to politics during the presidential election season—a brief period every four years where matters of politics and elections dominate a wide variety of media channels.
(PL Ex. 42 at 48.)
When it offered SDR, North Carolina was in a small minority of States that did so.
Plaintiffs’ experts claim that SDR boosts turnout. (Doc. 342 at 130-31.) But there is no reliable statistical evidence that this is so. As recently as a January 2014 article, Plaintiffs’ own expert, Dr. Burden, found that while his statistical analyses “suggest” that SDR has the potential of offering a mechanism to enhance the mobilization of certain voters, the results are not statistically significant (i.e., the 95% confidence interval includes the null hypothesis of no effect). (Def. Ex. 348 at 101-02.) Similarly, a 2011 study involving North Carolina’s 2008 general election found it “impossible” to isolate the effect of SDR in turnout. (Def. Ex. 346 at 93' (noting that the varia
The effects of EDR are quite different. The academic consensus is that EDR has a consistent, positive effect on turnout. As Plaintiffs’ own expert, Dr. Burden, explains:
The only consistent way to increase turnout is to permit Election Day registration. Early voting reduces turnout by robbing Election Day of its stimulating effects. This depressant effect is only partially offset if SDR is present or if EDR offers a vehicle for the last-minute mobilization of marginal voters.
(Def. Ex. 348 at 108.) Other researchers have confirmed this finding, while also maintaining the important distinction between EDR and SDR. (See, e.g., Def. Ex. 346 at 78, 80, 89, 93, 96-97.)
Despite this body of scholarship, created in part by Dr. Burden, other Plaintiffs’ experts were unaware of the different effects of SDR and EDR and carelessly comingled the two, scuttling the difference. For example, in his 2014 report, Dr. Stewart references how EDR boosts turnout, (PI. Ex. 42 at 61), a point that has no relevance to the impact of adding or removing SDR in North Carolina. At trial, Dr. Stewart stated that the literature supports the notion that SDR increases turnout. (Doc. 342 at 130.) When pressed to identify this literature, however, he could only point to a chapter in a book dealing with EDR (or combining EDR with SDR). (Id. at 130-31.) Dr. Stewart testified that he was unaware of any study that examined SDR separately from EDR. (Id. at 131.) This was odd, since one of his co-experts, Dr. Burden, had performed just such a study about which Dr. Burden testified at trial.
Dr. Gronke went further than Dr. Stewart. He cited the relevant scholarship distinguishing the effects of SDR from EDR, but totally mischaracterized the articles. In his April 14, 2014 report, Dr. Gronke wrote, “For same-day or Election Day registration, there are essentially no dissents; there is essentially universal agreement among scholars that this is an election reform that has a substantially positivé impact on voter turnout.” (PI. Ex. 40 at 33.) He went on to characterize Dr. Burden’s article (Def. Ex. 348) as finding “a positive effect when early voting was offered in conjunction with EDR, as was the case in North Carolina prior to recent election law changes.” (PI. Ex. 40 at 33-34 (latter emphasis added).) -
Dr. Gronke conceded at trial that his SDR analysis was not at all accurate. First, there is no scholarship finding an overall positive effect on turnout from SDR, since it requires the existence of early in-person voting, a mechanism that depresses turnout. What is troubling is that Dr. Gronke should have known as much, since he had served as a peer reviewer of Dr. Burden’s article prepared prior to this litigation. (Doc. 333 at 50-51.) Second, contrary to Dr. Gronke’s representation, North Carolina has never offered EDR. (Id. at 53.) As a result, the court finds Drs. Stewart and Gronke unreliable on the scholarly literature on SDR.
In 2014, before the preliminary injunction hearing in this case, Dr. Gronke predicted, as he had regarding the reduction of early voting, that the elimination of SDR would certainly reduce African American turnout in the 2014 election:
I conclude from the analysis in this report that, because same-day voter registration has been shown to be a strong and consistent predictor of higher turnout, the elimination of same-day registration during the election process, whether during one-stop voting or onElection Day, 97 will lower turnout over-aU. In particular, I conclude that eliminating same-day registration will have a disparate impact on African-American voters because they take advantage of same-day registration at a significantly higher rate.
(PI. Ex. 40 at 39 (emphasis added).) This turned out to be a poor prediction because, as noted above, African American turnout actually increased in 2014. (Def. Ex. 309 at 66; PI. Ex. 229 at 7.) Plaintiffs have provided no evidence in this case that the African American share of the 2014 vote would have been any higher had SDR (or OOP voting, or the first seven days of early voting) not been eliminated. Against this backdrop, it is not surprising that Dr. Gronke avoided giving any opinions about SDR in his 2015 report. (See PI. Ex. 234.) But he never amended his inaccurate 2014 report, despite reserving the right to do so. (PI. Ex. 40 at 39.)
In examining the use of SDR in North Carolina, it is helpful first to examine the changes in registration rates. SDR was only in place for three general elections: 2008, 2010, and 2012. After 2006, African American registration rates exceeded those of whites, and a disparity favoring the African American electorate has been growing ever since. (PI. Ex. 684.) Plaintiffs assert that, since African American registration rates exceeded white registration rates after SDR was implemented, this was most likely because SDR was implemented. Dr. Stewart has employed this post hoc ergo propter hoc reasoning: “There is no doubt that the same-day registration vehicle has been an important part of the laudable parity in black-white registration rates achieved in North Carolina ....” (PI. Ex. 42 at 23.) Yet Dr. Stewart conceded at trial that he had done no analysis to reach a causal conclusion. (Doc. 332 at 151-52.) Being nothing but his ipse dixit, the court need not, and does not, accept this conclusion. See Gen. Elec. Co. v. Joiner,
A closer examination of the time period at issue reveals something different. Dr. Stewart presented the following findings as to registrations among the voting age population (“VAP”):
[[Image here]]
(PI. Ex. 684.) From 2000 to 2006, when SDR was not in place, the African American/white disparity shrank from 9.1% to 5.1%. (Id.) The disparity further shrank from 2006 to 2008, when SDR was first implemented and President Obama first ran for national office, and in fact resulted in a disparity advantaging the African
Dr. Stewart supported his conclusion by performing a “churn” analysis. The churn refers to the dynamic nature of the voter rolls. The voter rolls are in constant flux: new registrations add voters onto the rolls (e.g., those turning voting age or migrating into the State); list maintenance removes voters from the rolls (e.g., those who have died or migrated out of the State). Dr. Stewart examined two two-year periods to demonstrate the net effects of the churn. For the period from 2010 to 2012 (transitioning from a midterm to a presidential election), when SDR was in place, he found that 663,927 voters were removed from the rolls, but that 1,112,412 voters were added; thus, there was a net gain. (PI. Ex. 686.) But in the period from 2012 to 2014 (from a presidential election to a midterm election), during which SDR was eliminated, 662,306 voters were removed from the rolls, and only 640,417 were added; thus, there was a net loss of 21,888 registrations. (Id.) From this analysis, Plaintiffs argue that the repeal of SDR affects voter churn and will, over the long term, negatively impact registration rates. (Doc. 346 at 67.)
As it turns out, however, Dr. Stewart’s analysis is incomplete, if not misleading. Defendants’ expert, Dr. Thornton, widened the period for Dr. Stewart’s churn analysis to include the period from 2008 to 2010 (from a presidential election to a midterm), another period during which SDR was in place. (Def. Ex. 359.) She found that, during this period, 581,188 voters were removed from the polls and only 517,181 voters were added—a net loss of 64,007. (Id.) The churn for the 2008 to 2010 transition, from a presidential election to a midterm election, was worse (almost three times so) for registration rates than was the analogous 2012 to 2014 transition, when SDR was eliminated. (Id.) So, a more complete churn analysis seems to support, rather than rebut, Defendants’ argument that the elimination of SDR does not harm registration rates.
Plaintiffs point to the timing of the implementation of SDR, arguing that the increase in registration rates in 2008 is strong evidence of the benefit it provided. However, the data show that, before SDR was implemented, African American registration rates were already increasing at a rate higher than those of whites. And, after SDR was eliminated, African American registration rates have continued to grow faster than those of whites. What confounds the inquiry as to 2008 (and 2012) is that the largest increase in African American SDR use coincides with the candidacy of the first African American president of the United States, which Plaintiffs
In total aggregate numbers, it is indisputable that African American voters disproportionately used SDR when it was available. According to Dr. Stewart, African Americans comprised 35.5% of registrants during the SDR period for the 2008 presidential election and 32.0% of registrants during the SDR period for the 2012 presidential election,
Habituation is an individual-level characteristic, not an aggregate one. (Doc. 333 at 64-65.) Plaintiffs’ experts acknowledged this and tracked individuals in their early-voting analysis, but they did not do so for individual voters using SDR, even though the data are available to do so. Such an analysis would be designed to determine whether whites or African Americans were more likely to use SDR more than once.
Second, statistics about SDR use do not demonstrate what these particular voters, of any race, would have done had SDR not been an option, especially given that there are a multitude of easy ways to register in North Carolina apart from SDR. The registration period is open year-round, but to be eligible to vote in an election a regis
, In addition, State law permits any individual, group, or organization—such as the GOTV efforts conducted by some Plaintiffs—to conduct a voter registration drive, without any special training, pursuant to SBOE-published guidelines and with materials the SBOE and CBOEs provide. (Doc. 126-1 at 4.)
Plaintiffs argue that these other methods of registration are not a substitute for SDR and its in-person effectiveness. (Doc. 346 at 74-76.) DMV only offers registration services to those seeking DMV services, and it is true that the poor (which African Americans represent disproportionately) are less likely to use DMV services, as they are less likely to drive or own a vehicle. Also, because of a foul-up at DMV in implementing SL 2013-381, in September 2014 some 2,726 seventeen-year-olds were denied the right to register, and the SBOE had to send them a letter with a voter registration form and the promise to file it for them if completed and returned. (PI. Ex. 726.) As for public assistance, Plaintiffs argue that it, too, is an insufficient substitute for the removal of SDR because it is only offered for those applying for such services and that public assistance registrations declined from 41,-162 in 2012 to 13,340 in 2014. (PI. Ex. 725 at 4.) While Plaintiffs’ statistical evidence correlated African Americans disproportionally with the purpose of such services, suggesting it as an ideal registration opportunity, there was no direct evidence as to why registrations at such services did not occur more frequently. As Defendants pointed out, the reduction in use of these sources may very well be due, in some significant measure, to the fact that voter
Aside from prior use' data, Plaintiffs seek to use data from the’ 2014 election to bolster their claim that African Americans have been disparately impacted by the elimination of SDR.
In his 2015 report, based on data provided by the SBOE, Dr. Stewart notes that in the 2014 midterm 12,983 people registered to vote after the registration deadline but before Election Day. (PI. Ex. 242 at 163.)
Instead of providing the actual number of African American and white registrants included in the 11,993 subtotal (surely a knowable figure), Dr. Stewart provided a percentage (by race) of all registrations during the two-year period preceding the 2014 election that occurred on the indicated day. (PI. Ex. 242 at 164.) Thus, he found that the number of registrations during early voting in 2014 was 1.415% of all registrations for the preceding two-year period. (Id. at 163.) He then broke this figure down by race, calculating that African American registrations during the 2014 early-voting period constituted 1.994% of the registrations for the two-year period. (Id. at 164.) The comparable white registrations were 1.800%.
Defendants have offered a different characterization of the 2014 data. Defendants would have the court first calculate the actual number of African American and white registrations during the 2014 early-voting period. (Doc. 332 at 124-28.) This yields approximately 2,714 African American registrations and 7,507 white registrations. (PI. Ex. 242 at 163-64.) Of the 11,993 registrations during this period, the number of African American registrations thus constituted 22.630%. (Id.) This compares to the African American share of 22.5% of all voters registered as of 2014.
Given the closeness of these percentages, and considering that the data include people registering at sites other than those offering early voting (and thus formerly offering SDR), these data are at best weak evidence that the elimination of SDR caused African Americans to be affected disproportionately.
Turning to “young” voters, Plaintiffs presented the testimony of Dr. Levine, who relies in part on national studies of EDR and SDR but also fails to distinguish between the two. (Doc. 332 at 134.) As noted above, the two mechanisms have
Dr. Levine also analyzed the use of SDR by young voters from 2008 to 2012. He presented the following use statistics, which are percentages of voters in a given election using SDR:
[[Image here]]
(PI. Ex. 50A at 11-12.)
Historically, the effect of a voting mechanism has been measured commonly by turnout. Prior to this case, Plaintiffs’ experts measured SDR’s effect that way. They further acknowledge that such analy-ses are possible here and would be probative. (See Def. Ex. 348 (Dr. Burden analyzing the effect of SDR on turnout); Doc. 332 at 151-52 (Dr. Stewart conceding that he has not conducted any statistical analysis on' the effect of SDR on turnout or registration rates); Doc. 342 at 129-30 (Dr. Stewart conceding that a properly conducted cross-State analysis would be an appropriate way to measure the effect of a voting law on turnout, despite not having done so in this case); Doc. 331 at 88-90 (Dr. Burden conceding that he had done no analysis to determine whether competitiveness of 2014 and 2008 general elections affected turnout); id. at 96 (Dr. Burden conceding that, while he has conducted “many national analyses” of the effect on turnout from SDR and other election changes, he has never, examined whether any election law affected turnout in North Carolina).) The failure of Plaintiffs’ experts to conduct the kind of analyses that were possible, especially where it has been done in their scholarship under more rigorous standards, (e.g., Doc. 331 at 148-49 (Dr. Burden conceding that his North Carolina case study analysis in this case was less rigorous than his academic work)), impairs the persuasiveness of their testimony. See Fed. Rule Evid. 702 advisory committee notes (counseling courts to be wary of an expert who is not “as careful as he would be in his regular professional work outside his paid litigation consulting”) (quoting Sheehan v. Daily Racing Form, Inc.,
There was only one reason given for Plaintiffs’ failure to produce such highly probative evidence in this case. On cross-examination, Defendants had Dr. Stewart perform calculations from the 2014 general election data, and the results tended to negate an inference of disparity. (E.g„
In support of their claim that African Americans disproportionately need in-person assistance, Plaintiffs cited statistics from the SBOE’s database of incomplete registration applications. For those individuals who submitted voter registration applications between 2012 and 2014, 21.25% (136,113) were African American, while 65.12% (417,053) were white. (PI. Ex. 242 at 163-64 (stating that the total number of registrations across the two-year election cycle was 640,417).) As of November 2014, 34.74% of the registration applications in the incomplete queue were submitted by African Americans, while 51.53% were submitted by white applicants. (PI. Ex. 633 at 5.) In addition, 33.40% of applicants placed in the incomplete queue for failure to check the citizenship box were African American, while 28.86% were white. (Id.) Of those submitting applications without a birth date, 59.05% were African American, while 22.28% were white. (Id.)
In addition, Plaintiffs presented evidence that African Americans are more likely to move between counties than white residents. (PI. Ex. 42 at 30 n.37.) Because North Carolina organizes registration at the county level, more action is required by those who move between counties. For example, a voter who has moved within his county may update his registration information, including a change of address, during early voting or on Election Day, and vote. See N.C. Gen. Stat. § 163-82.6A(e); (Doc. 126-1 at 5), By contrast, individuals who move between counties more than thirty days before Election Day must, in the absence of SDR, re-register in their new county prior to the twenty-five day cut-off in order to be eligible to vote. (Doc. 354 at 97-98.) Accordingly, because they are more likely to move between counties, African Americans are more likely to need to re-register.
In sum, Plaintiffs staked their case largely on aggregate disproportionate SDR use over six years.
4. Elimination of OOP Provisional Voting
From 2005 until 2013, OOP voting allowed a registered voter on Election Day to vote in a precinct other than his assigned precinct, so long as he was still voting in his county of residence. OOP voting only applied to Election Day because early voting is offered at centralized sites and not at precincts. In that sense, early voting continues to permit OOP voting for the ten days of early voting.
OOP voting required the poll worker to give the wrong-precinct voter a provisional ballot to cast. However, because the provisional ballot was for a different (wrong) precinct, it often included races for which the voter was not eligible to vote and omitted races for which he was. This contrasts with voters during early voting, where computer voting machines can be programmed to produce the correct ballot even if the centralized location for early voting is a different precinct. Some Election Day precincts do not use electronic voting machines, however. Consequently, after the OOP ballot was cast, the CBOE had to individually review the full ballot to tabulate and record the races for which the voter was eligible to vote and invalidate votes cast in the races for which the voter was not eligible, or the CBOE had to transcribe the appropriate eligible votes onto a separate, proper ballot, which would then be recorded. Therefore, except for national and State-wide races, OOP voters were often effectively disenfranchised for some races. In this regard, to the extent OOP voting included voters who failed to vote in their proper precinct merely by neglect or ignorance (and there was evidence of this at trial), and not due to need, it can be criticized as having encouraged voters to unwittingly forego their full voting rights.
Some form of OOP voting is permitted in sixteen States plus the District of Columbia. (Def. Ex. 270 at 18.) North Carolina is among thirty other States, including many jurisdictions previously covered by YRA § 5, that prohibit the practice removed by SL 2013-381.
The history of North Carolina’s use of OOP voting is measured by the casting of provisional ballots that the SBOE labels as “incorrect precinct.” (See, e.g., PI. Ex. 689.) The counting of OOP provisional ballots began in 2006 and continued for three more general elections, until it was ended by SL 2013-381. Recognizing that every vote is important, it is nevertheless true that even for the years it was in place, OOP ballots constituted only a fraction of a sliver of the total ballots cast. In 2012, when there were more OOP provisional ballots at least partially counted than ever, the total provisional incorrect precinct ballots as a percent of all ballots cast amounted to only .19% of white ballots and .33% of African American ballots.
In 2014, after SL 2013-381, North Carolina stopped counting “incorrect precinct” provisional ballots, though it continued to offer provisional ballots to registered voters, as required by HAVA. In the 2014 general election, the number of “incorrect precinct” provisional ballots cast on Election Day dropped to 1,930. (PI. Ex. 689.) For whatever reason, many of these were counted in whole or in part, leaving only 1,387 not counted. (Id.) Of these, 576 were cast by African American voters and 595 were cast by white voters. (Id.) Accordingly, African American voters disproportionately cast provisional ballots in the wrong precinct in 2014.
Plaintiffs and Defendants dispute the reason why the number of OOP provisional ballots dropped in 2014. Plaintiffs claim that voters were deterred, while Defendants claim the results show that former OOP voters were able to adjust to voting in their correct precincts. The explanations are not mutually exclusive, but Defendants’ explanation is better supported by the evidence. In fact, Plaintiffs’ own evidence indicates that the drop in OOP provisional ballots observed in 2014 was likely due in large part to voters going to their correct precinct in light of the elimination of OOP voting. For example, Plaintiffs presented the testimony of Susan Schaffer to support their assertion that requiring people to vote in the correct precinct results in a significant number of people being deterred from voting. (PI. Ex. 796.) In
At trial, however, Defendants presented persuasive evidence as to what happened to these voters. Of the fifty-nine people, on Ms. Schaffer’s original list, only fifty-two could be identified as registered in North Carolina’s voter database.
This sampling of “affected voters” offered by Plaintiffs’ own witness supports the court’s conclusion that the number of wrong-precinct provisional ballots fell substantially in 2014 because of the ability of wrong-precinct voters to actually go to their correct precinct.
As with the data relating to other voting procedures, the provisional ballot data leaves many questions unanswered. The court could assume that the lack of OOP voting in 2014 disparately affected African American voters because they previously used OOP voting disproportionately. Defendants, however, have offered evidence to suggest that this may not be the case and that the provisional ballot data are missing context. For example, Dr. Thornton found that, among all OOP voters, 45% had voted in the correct precinct in the past. (Def. Ex. 309 at 89.) African Americans were even more likely, at 49%, to have voted at their assigned precinct in the past. (Id.) And, looking only at the 2014 general election, overall and among African American OOP voters, 74% had voted at their correct precinct in the past. (Id.) Further, the provisional data does not explain why any voter voted out of his or her precinct. Plaintiffs assert they did so because of need, but this conclusion is undermined by the fact that so few used the option in relation to the vastly larger number of poor, less educated, and vehicle-less voters. Nor does the use data tell us whether any voter could have easily voted in his or her correct precinct.
Thomas Hofeller, Ph.D., an expert who studies mapping for redistricting,
Finally, Plaintiffs offered the testimony of voters, African American and white, who expressed frustration that they, had cast an OOP provisional ballot in 2014 that was not counted. However, the vast majority had.made no effort whatsoever to determine the location of their assigned precinct. (Kg., Doc. 330 at 40 (William Kittrell, college student: “I figured since I was a resident of North Carolina and. I had registered to vote in North Carolina, that I would be able to vote in any county that I was in.”); id. at 176-76 (Terrilin Cunningham: assumed she could vote anywhere in the county because in a previous county “I just voted down the street from our church, which we didn’t live anywhere near”);' Doc. 334 at 164-57 (Michael Owens: elected not to vote early but tried to vote OOP on Election Day at the precinct where he had previously voted and was unaware he must vote in his home precinct). Only Timothy and Yvonne Washington, a married couple, were unable to walk to their assigned precinct, which was farther away, due to disabilities. (See PI. Ex. 679; PI. Ex. 797); see also infra Part II.A.3.d. Thus, it is far from clear, indeed doubtful, whether the elimination of OOP voting was the cause of most voters’ failure to successfully cast a ballot.
In sum, Plaintiffs have shown that African Americans disproportionately cast OOP provisional ballots both before and after SL 2013-381.
5. Elimination of Pre-Registration
Pre-registration permitted those under the age of eighteen to register earlier than would otherwise be permitted. Currently, seventeen-year-olds who will be eighteen by the time of the general election are able to register sixty days prior to the accompanying primary. N.C. Gen. Stat. § 163— 59. Plaintiffs argue that the elimination of pre-registration disparately impacts African American and Hispanic youth and imposes a severe burden on all youth.
Eight States and the District of Columbia allow pre-registration by those age sixteen or older. (Def. Ex. 270 at 32; Doc. 340 at 18.) North Dakota is included as offering pre-registration because it has no registration system at all.-(Def. Ex. 270 at 32.)
North Carolina’s pre-registration law was in place for only two general elections, 2010 and 2012, before it was repealed by SL 2013-381. (PL Ex. 235 at 18.) When available, about 152,000 adolescents preregistered, (id. at 13), although it is unknown, of course, how many of these adolescents would have eventually registered without pre-registration. When in place,
One of Plaintiffs’, experts, Sunshine Hil-lygus, Ph.D., Professor of Political Science at Duke University,
At trial, Plaintiffs featured Nadia Cohen, who could have pre-registered but was unable to do so because of SL 2018-381. Even without pre-registration, Ms. Cohen could have registered long before the 2014 general election, given that she turned eighteen before that election. She did not register for the 2014 general election because no one told her to do so and because, in- her words, “honestly, voting is not my top priority throughout the year.” (Doc. 331 at 173.) At the time of trial she was enrolled to start college at the University of North Carolina at Chapel Hill in the fall of 2015. The elimination of pre-registration did not cause Ms. Cohen to be unable to vote in 2014.
In addition, Plaintiffs presented the testimony of individuals involved in assisting persons to register to vote. For example, Reverend Maria Palmer, mentioned above, is an Hispanic-American member of “Hot-ties,”—short for “Hispanic Outreach Team”—which assists Hispanics in voting. (Doc. 329 at 145.) She testified that the elimination of pre-registration was “big” because it affected Latino youth, who are often a family’s first-generation voter (presumably because they are the first generation eligible to vote) and “not familiar with how things are done.” (Doc. 329 at 148.)
There is no evidence that a voter can be habituated to pre-registration, since it is usually a one-time event. Moreover, because a segment of pre-registrants are mobile, they have an increased likelihood of facing an additional barrier of re-registering upon turning eighteen. That is either because the pre-registrant and his family change addresses between the time of preregistration and age of majority (in which case he fails statutory mail verification, which is not initiated until the pre-regis-trant is eligible to vote) or because the pre-registrant subsequently moves out of the county (e.g., by going to college). In either case, the pre-registrant who moves will need to re-register in his new county of residence.
In sum, the evidence shows that preregistration increases youth turnout. However, although African Americans used pre-registration disproportionately compared to whites in North Carolina, the evidence also establishes that pre-registration does not disproportionately benefit one race over the other. (PI. Ex. 235 at 24.) In addition, while the evidence explains why pre-registration increases turnout, it does not explain why African Americans are more likely to pre-register or why the other means of registration are less available to African Americans than other groups. As noted below, North Carolina continues to offer substantial opportunity for seventeen-year-olds to register ahead of any election for which they are eligible, including primaries when they are age seventeen.
6. Other Challenged Provisions
In addition to these four mechanisms, Plaintiffs also challenge SL 2013-381’s expansion of poll observers and ballot challenges, as well as the transfer of discretion to extend Election Day poll hours from CBOEs to the SBOE, as either disproportionately impacting minorities or imposing an otherwise unjustified burden on the right to vote.
North Carolina law permits the chair of each political party in every county to “designate two observers to attend each voting place at each primary and election.”
Under North Carolina law, the polls on Election Day are to remain open from 6:30 a.m. until 7:30 p.m. N.C. Gen. Stat. § 163— 166.01. Beginning in 2001, each CBOE had the power to “direct that the polls remain open until 8:30 p.m.” in “extraordinary circumstances.” 2001 N.C. Sess. Law 460, § 3 (codified at N.C. Gen. Stat. § 163-166 (2002)). SL 2013-381 eliminates the discretion of the CBOEs by deleting the “extraordinary circumstances” clause. 2013 N.C. Sess. Law 381, § 33.1. The law now provides:
If the polls are delayed in opening for more than 15 minutes, or are interrupted for more than 15 minutes after opening, the [SBOE] may extend the closing time by an equal number of minutes. As authorized by law, the [SBOE] shall be available either in person or by teleconference on the day of election to approve any such extension.
N.C: Gen. Stat. § 163-166.01. The law thus vests discretion in the SBOE to the exclusion of CBOEs and conditions the exercise of discretion on a delay of fifteen minutes or longer.
Virtually no evidence was offered at trial by either side as to these challenged provisions. At the preliminary injunction hearing, Plaintiffs offered limited testimony about a concern that additional observers might be a basis for intimidation. For example, Senator Dan Blue testified about a concern that African American voters may be intimidated by the presence of a white observer who does not look familiar to them and that bringing in people from outside the precinct may create an intimidating environment. (Doc. 164 at 109—11.) But as he stated, individuals have a First Amendment right to stand outside the polling place, and SL 2013-381 does not address this. (Id. at 108.) Moreover, the intimidation he was most concerned with, he said, occurs outside the polling place, not inside the restricted area where observers from both parties would be present and limited under SL 2013-381. (Id. at 136-37.)
Defendants did not present evidence as to the justification for poll observers and challengers,
With respect to the discretion to extend polling hours, Plaintiffs have not demonstrated how the elimination of the “extraordinary circumstances” clause will cause any burden or lessened opportunity based on race or age. This is especially true because, as former SBOE Director Gary Bartlett testified at the preliminary injunction hearing, the SBOE retains the ability to make up significant losses in time by ordering the polls to remain opén for equal time in the event of a delay.
7. 2014 Data
The data from the 2014 elections seriously undermine Plaintiffs’ claims in these cases. Plaintiffs argue that such data are little or no evidence of the actual effect of eliminating the voting procedures at issue. Their arguments are simply not persuasive. Data from actual implementation of an election law aré precisely the sort of electoral information that courts are encouraged to consider, because they permit an understanding of the effect of the law based on “historical facts rather than speculation.” Purcell v. Gonzalez,
Plaintiffs argue that the court cannot merely compare “aggregate turnout numbers” from 2014 to 2010 to determine the effects of SL 2013-381. (Doc. 346 at 104.) True. But Defendants have not asked the court to take such a myopic view, and this court is examining so much more information to reach its conclusions.
Next, Plaintiffs argue that the 2014 election data were affected by a number of different factors besides SL 2013-381.
First, they argue that 2014 involved a very competitive $110 million North Carolina Senate race, representing the highest spending of its type in the history of the Nation. (Id. at 104-05.) This too is true. Oddly, it came to light at trial that one of Plaintiffs’ experts, Morgan Kousser, Ph.D., a California resident, contributed • to this anomaly- by making a personal campaign contribution to the incumbent Democratic Senator for North Carolina in 2014 even though he was supposedly a neutral expert in this case. (Doc. 330 at 85-86.) Dr. Kous-ser is free to express his political views,
Second, Plaintiffs argue that the contest for the seat of Congressional District 12, which had been held by Congressman Melvin Watt (an African American) skewed the turnout statistics. But in the general election, this race could not be deemed competitive in any sense of the word, with the Democratic candidate taking over 75% of the vote. (See Def. Ex. 364 at 4.)
Third, Plaintiffs point to their own “engagement efforts” and African American “anger about the enactment of HB 589” to increase turnout as skewing the 2014 numbers. (Doc. 346 at 105.) Again, no actual evidence of the effect of the purported skewing was offered, even though Plaintiffs’ experts purport to measure those kinds of things quantitatively. Moreover, if “engaging” “angry” voters meaningfully moves turnout, then turnout is more likely a function of motivation than the availability of the voting mechanisms at issue here.
Finally, Plaintiffs argue that, if 2014 turnout data has any relevance, “the relevant comparison is between actual 2014 turnout and what turnout in 2014 would have been had HB 589 not been in effect.” (Id. at 106.) This would be most probative. But Plaintiffs then fault Defendants’ expert, Dr. Thornton, for not having performed such an analysis. (Id.) This would be more persuasive if this were a VRA § 5 case where Defendants bore the burden of proof, but it is not. Plaintiffs bear the burden in this trial.
In the end, Plaintiffs rely on aggregate turnout data when it is expedient, but eschew it when it is not. Plaintiffs are correct that the 2014 turnout data are not dispositive. But, as the Supreme Court has recognized, it is highly probative, and the court considers it along with all the other data offered into evidence in assessing the totality of the circumstances.
E. Testimony of Other Experts
Plaintiffs introduced the testimony of various other experts who discussed the history of official discrimination in North Carolina and various socioeconomic disparities. The court’s findings as to their opinions and conclusions will be discussed infra where appropriate.
II. CONCLUSIONS OF LAW
A. Section 2 of the VRA
1. The Law of Vote Denial and Abridgement Claims
The right to vote is fundamental and preservative of all others. League,
is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) in that its members have less opportunity than other members of the electorate to participate in the political
Id. § 10301(b). Although the Supreme Court held in 1980 that a § 2 plaintiff had to show discriminatory intent, City of Mobile v. Bolden,
“The essence of a § 2 claim is that a certain electoral law, practice, or structure interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by black and white voters to elect their preferred representatives.” Gingles,
This case, however, involves a vote denial/abridgement claim, for which there is less developed law under § 2. See Simmons v. Galvin,
In Plaintiffs’ appeal of the preliminary injunction decision in this case, the Fourth Circuit articulated the § 2 inquiry as follows:
First, the challenged standard, practice, or procedure must impose a discriminatory burden on members of a protected class, meaning that members of the protected class have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.
Second, that burden must in part be caused by or linked to social and historical conditions that have or currently produce discrimination against members of the protected class.
League,
1. “the extent of any history of official discrimination in the state or political subdivision that touched the right of the members of the minority group to register, to vote, or otherwise to participate in the democratic process”;
2. “the extent to which voting in the elections of the state or political subdivision is racially polarized”;
3. “the extent to which the state or political subdivision has used unusually large election districts, majority vote requirements, anti-single shot provisions, or other voting practices or procedures that may enhance the opportunity for discrimination against the minority group”;
4. “if there is a candidate slating process, whether the members of the minority group have been denied access to that process”;
5. “the extent to which members .’of the minority group in the state or political subdivision bear the effects of discrimination in such areas as education, employment and health, which hinder their ability to participate effectively in the political process”;
6. “whether political campaigns have been characterized by overt or subtle racial appeals”;
7. “the extent to which members of the minority group have been elected to public office in the jurisdiction”;
8. “whether there is a significant lack of responsiveness on the part of elected officials to the particularized needs of the members of the minority group”; and
9. “whether the policy underlying the state or political subdivision’s use of such voting qualification, prerequisite to voting, or standard, practice or procedure is tenuous.”
Gingles,
These factors are drawn from the vote dilution context, where they have more obvious application. See Gingles,
The totality of the ' circumstances analysis is “local in nature.” League,
As noted above, in addition to bearing the burden of demonstrating that the challenged voting practice results in an inequality of opportunity, a § 2 plaintiff also bears the burden of demonstrating that the inequality of opportunity is “caused by or linked to ‘social and historical conditions’ that have [produced] or currently produce discrimination against members of the protected class.” League,
Other courts have made the same observation. See, e.g., Frank v. Walker,
In conducting its analysis, the court is guided by the fact that “Congress intended to give the Voting Rights Act ‘the broadest possible scope.’” League,
Turning to the types of voting changes at issue in the present case, although many courts, including the Supreme Court in Crawford v. Marion County Election Board,
Texas:
In August 2015, the Fifth Circuit applied the two-step test from the Sixth and Fourth Circuits to Texas’s photo-ID requirement and upheld the district court’s finding that it violated § 2 of the VRA. Veasey v. Abbott,
In Frank v. Walker,
Plaintiffs describe registered voters who lack photo ID as “disenfranchised.” If the reason they lack photo ID is that the state has made it impossible, or even hard, for them to get photo ID, then “disfranchised” might be an apt description. But if photo ID is available to people willing to scrounge up a birth certificate and stand in line at the office that issues drivers’ licenses, then all we know from the fact that a particular person lacks a photo ID is that he was unwilling to invest the necessary time. And Crawford tells us that “the inconvenience of making a trip to the [department of motor vehicles], gathering the required documents, and posing for a photograph surely does not qualify as a substantial burden on the right to vote, or even represent a significant increase over the usual burdens of voting.”
Id. at 748 (quoting Crawford,
Photo ID laws promote confidence, or they don’t; there is no way they could promote public confidence in Indiana (as Crawford concluded) and not in Wisconsin. This means that they are valid in every state—holding constant the burden each voter must bear to get a photo ID—or they are valid in no state. Functionally identical laws cannot be valid in Indiana and invalid in Wisconsin (or the reverse), depending on which political scientist testifies, and whether a district judge’s fundamental beliefs (his “priors,” a social scientist would say) are more in line with the majority on the Supreme Court or the dissent.
Id. The court asserted that it was bound by such legislative facts “even if 20 political scientists disagree with the Supreme Court.” Id.
Turning to the § 2 inquiry, the court concurred with the Sixth and Fourth Circuits that a vote denial claim consists of two elements, but expressed skepticism about the second step of the test on the ground that “it does not distinguish discrimination by the [State] from other persons’ discrimination.” Id at 755, This distinction, however, did not prove material, as the court said that even if it were to adopt the test in full, plaintiffs would fail the first step. Id. Despite the district, court’s finding that minorities were less likely to possess qualifying ID, id. at 746, the Seventh Circuit held that Wisconsin’s law nevertheless provided “everyone ,., the same opportunity to get a qualifying photo ID,” id at 755.
Despite the guidance offered by Veasey and Frank, the cases are of limited assistance in deciding Plaintiffs’ § 2 claim in this case because neither Texas nor Wisconsin had a reasonable impediment exception. In fact, this court is not aware of any case where a photo-ID requirement with a reasonable impediment exception has been considered under § 2. This is significant because the reasonable impediment exception provides a fail-safe voting option for the very groups that Veasey and Frank centered on: socioeconomically-disadvantaged individuals without qualifying ID.
Only a small handful of cases have addressed a legislature’s modification under § 2 of the other voting mechanisms in this case. Briefly, they are:
South Dakota:
In Brooks v. Gant, No. 12cv5003,
Florida:
In Jacksonville Coalition for Voter Protection v. Hood,
Separately, in May 2011, Florida decided, as part of some eighty sets of changes to election law in HB 1355, to reduce early voting from a possible 12-14 days to 8 days, thus eliminating the Sunday before Election Day and granting supervisors discretion to allow as few as forty-eight hours of early voting. Florida v. United States,
Thereafter, a group of African American leaders sued to enjoin the law under § 2. Brown,
Moreover, in contrast to the Section 5 case before the Florida court, this Court, as Plaintiffs conceded at the hearing, is not conducting a “retrogression” analysis, meaning, this Court is not comparing the new statute against the old to determine whether these voting changes will “worsen the position of minority voters in comparison to the preexisting voting standard, practice, or procedure.” Rather, the task before this Court under Section 2 of the VRA is to conduct a “practical evaluation of the past and present reality” to determine whether, under the totality of the circumstances, application of the 2011 Early Voting Statute serves to deny African American voters equal access to the political process. The important distinction between a Section 5 and a Section 2 claim plays a significant role in the Court’s decision in this case.
Id. at 1251 (citations and internal quotation marks omitted). Despite accepting the findings of experts (Drs. Gronke and Stewart) that the changes would disproportionately affect African American voters, id., the Brown court found that “[bjecause [the new statute] allows early voting during non-working hours, as well as voting during the weekend, including one Sunday, voting times which are important to African American voters, as well as to GOTV efforts, the Court cannot find that [it] denies equal access to the polls,” id. at 1255. In doing so, the court also found the experience of other States important (noting similar statistics to those presented in the present case) and cautioned that “acceptance of Plaintiffs’ argument that the eight days of early voting allowed by the Florida legislature violates Section 2 could have far-reaching implications,” citing the concerns raised in Hood,
Ohio:
In Ohio State Conference of N.AA.C.P. v. Husted,
On the § 2 claim, the Sixth Circuit articulated the two-part test set forth above. It then explained that “what is distinet between a Section 5 analysis and a Section 2 analysis is the role that prior law plays in the comparison,” stating that “under the Section 2 analysis, the focus is whether minorities enjoy less opportunity to vote as compared to other voters.” Id. at 558. It was in this manner that disproportionate use of the old law was relevant. Id. The court held that plaintiffs presented evidence that the eliminated early-voting times “are those that African Americans disproportionately use, and that racial inequalities in socioeconomic status and other factors make it much more difficult for African Americans to vote at the remaining times or through the other methods now available under the status quo as compared to other groups.” Id. at 558-59.
North Carolina:
In League of Women Voters of N.C. v. North Carolina,
As is plain from the court’s findings above, the trial evidence contradicted many of the factual premises Plaintiffs presented at the preliminary injunction stage that underlay the Fourth Circuit’s decision. For example, the evidence demonstrated that early voting actually de
Accordingly, this court will apply the Fourth Circuit’s articulated legal principles, including the two-prong test, and other relevant case law to the fully-developed, extensive trial record.
2. The Totality of the Circumstances & Gingles
The inquiry under the totality of the circumstances is whether the provisions of SL 2013-381, individually or cumulatively, “impose a discriminatory burden” on Hispanics and African Amfericans, “caused by or linked to social and historical conditions that have or currently produce discrimination,” such that they have “less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” League,
a. The Success of the Prior Practices in Fostering Minority Political Participation
As noted, the Fourth Circuit directed that the “success[ ]” of North Carolina’s “previous voting practices” in “fostering minority participation” is “centrally relevant” under § 2, being a “critical piece of the totality-of-the-circumstances analysis Section 2 requires.” League,
Despite this early appellate guidance, Plaintiffs offered no evidence that the old early-voting schedule, SDR, or OOP voting “foster[ed] minority participation.”
Instead, Plaintiffs’ experts rely on disproportionate use statistics for select elections to argue that African Americans were able to exceed.parity with whites in terms of registration and turnout because of the eliminated procedures. This evidence is certainly relevant, but, as the court’s findings of fact show, it does not justify such an inference. It cannot be that the Fourth Circuit’s directive was too burdensome on Plaintiffs, because their experts admitted that they were capable of analyzing how such procedures affected political participation and have done so in the past. For whatever reason, however, they declined to produce such evidence in this case.
Plaintiffs did present evidence that African Americans used early voting as part of GOTV and “souls-to-the-polls” efforts,
[A] change is not retrogressive simply because it deals with a method of voting or registration that minorities use more frequently, or even because it renders that method marginally more difficult or burdensome. Rather, to be ’ retrogressive, a ballot access change must be sufficiently burdensome that it will likely cause some reasonable minority voters not to register to vote, not to go to the polls, or not to be able to cast an effective ballot once they get to the polls.
Florida,
In Shelby County v. Holder, — U.S. -,
Historically, when courts have found § 2 violations, they have frequently grounded that decision in part on lagging minority turnout and registration rates. See, e.g., Veasey,
The point is not that the 2014 turnout and registration rates are the only or dis-positive evidence of causation in this case; they are not. See Frank,
In sum, when increased minority participation correlates with the availability of so-called convenience voting procedures,
b. History of Official Discrimination
The first Gingles factor has the court examine “the extent of any history of official discrimination in the state or politL cal subdivision that touched the right of the members of the minority group to register, to vote, or otherwise to participate in the democratic process.”
All evidence of discrimination is relevant, and North Carolina has a sordid history dating back well over a century that the court fully considers. But, as with most evidence, “contemporary examples of discrimination are more probative than historical examples.” Veasey,
Finally, the relevant history of official discrimination must be brought “home to this case.” LULAC,
With this in mind, the court turns to the testimony of James L. Leloudis, II, Ph.D., Professor of History at the University of North Carolina at Chapel Hill.
After the close of the Civil War, the government of North Carolina instituted the Black Codes, which sought to reduce the rights, including suffrage, of newly-emancipated slaves. (PI. Ex. 230 at 4-5.) Federal Reconstruction intervened and caused North Carolina to revise its State Constitution, ensuring political liberties regardless of race. (Id. at 5-7.) As a result of the expansion of the franchise, in 1868, the bi-racial Republican Party took control of the governorship, legislature, and congressional delegation. (Id. at 7.) By 1880, just fifteen years after the Civil War, voter participation in North Carolina was 78% for whites but an astounding 90% for African Americans. (PI. Ex. 237 at 13.) An alliance of whites and African Americans continued to field candidates and win elections, despite political violence by the growing Ku Klux Klan, (PI. Ex. 230 at 7-8.)
In 1894, this alliance controlled the General Assembly and enacted legislation with what Dr. Leloudis describes as “the aim of guaranteeing full and fair access to the franchise.” (Id. at 10.) These progressive changes, relevant to this case, included the creation of the precinct system, and a requirement that citizens register and vote in their precinct of residence. Act of Mar. 8, 1895, ch.. 159, §§ 5, 10, 14, 1895 N.C. Sess. Laws 211. Registrars and- election judges for each precinct were to be appointed from “each political party of the state,” rather than the election system being controlled entirely by one political party, as was the previous practice. Id. § 7; (PI. Ex. 230 at 10). Ballot challenges could be made by any voter, without regard to the residence of the challenger. Act of Mar. 8,1895, ch. 159, § 12. There was also introduced one day on which everyone would vote. Id. § 3. On this day, the polls were to open at 7 a.m. and run “until sunset of the same day, and no longer.” Id. § 17. Felons, women, and those below the age of twenty-one were disqualified from voting. Id. §§ 13-14. The voter was also only qualified if he had lived in the State for twelve months and the county for ninety days preceding Election Day. Id. § 14.
Things changed in the run-up to the 1898 election. Democrats engaged in a campaign full of racial violence and racial appeals. (Id. at 13.) For example, one prominent Democratic newspaper published a cartoon bearing the caption “The Vampire that Hovers over North Carolina” that portrayed an African American face with “Negro Rule” on the wings. (Id.) As Election Day 1898 arrived, Klansmen engaged in violence and voter intimidation at the polls. Democrats won the election by a slim margin. (Id. at 16.)
Now in control of the General Assembly, the Democrats enacted a literacy test and other laws that had the effect of suppressing the vote of African Americans and supporters of minority political parties. (Id. at 16.) At this time, the SBOE and CBOEs were created, having control over local registrars and election judges, and all board members were appointed by the party in control of the General Assembly. Act of Mar. 6, 1899, ch. 507, §§ 4-5, 1899 N.C. Sess. Laws 658, 659. The.new laws also required every North Carolinian to re-register, which would clearly make it easier for Klansmen to intimidate African Americans. Id. § 11.
In 1900, the Democrats again succeeded at the polls and would remain in power for over 100 years, until the 2000s. (PI. Ex. 230 at 18.) The following decades saw the introduction of Jim Crow laws and other forms of segregation. (Id. at 19-20.) They also saw new discriminatory laws in the areas of education and labor. (Id.)
The period from 1917 to 1950 saw gains for African American political participation. African Americans engaged in political organization and successfully managed to register, despite the literacy test. (Id. at 20-22.) Around 1950, segregation and the civil rights movement began to move to the forefront of American politics. (Id. at 22-25.) The era saw racial appeals at the center of campaigns. But in the 1960s, Terry Sanford was elected governor, and he began to attack what he called the “poverty-segregation complex” in the State. (Id. at 25.) At the federal level, the Civil Rights Act was passed in 1964 and the VRA in 1965. (Id. at 25-26.) The General Assembly, meanwhile, instituted mul-timember legislative districts that tended to dilute African American voting strength, which continued into the 1980s. (Id, at 27-28.)
During the period from 1992 to 2009, no-excuse early voting, no-excuse absentee voting, SDR, OOP voting, and pre-regis-tration were enacted. (PI. Ex. 230 at 30.) Dr. Leloudis admittedly did not review the legislative record associated with these changes. (Doc. 338 at 39-41.) Nevertheless, he asserts that “the net effect of these reforms was steady improvement in voter turnout.” ,(P1. Ex. 230 at 30.) Neither his report nor his testimony substantiates such a claim. Nor has any of the Plaintiffs’ other experts. In fact, during trial, Dr. Leloudis confessed he was “not comfortable with that kind of speculation.” (Doc. 338 at 45-47.) In short, he was contradictory: he stood by his opinion that 2012 turnout would have been lower absent the election reforms at issue, but he refused to answer whether he would have predicted that the turnout would have gone down in 2014 as being unwarranted speculation. (Id)
Finally, Dr. Leloudis opined on the challenged provisions of SL 2013-381. Here, his opinions lost their moorings in history and became part advocacy. For example, he failed to consider the entirety of SL 2013-381, did not meaningfully consider the justifications for the provisions, and noted that while it was possible that partisans can have policy differences without being racist, his “preponderance of associations” led him to conclude otherwise. (Id. at 36-38)
Overall, the court credits Dr. Leloudis’ historical account up to the introduction of the voting laws at issue. But from there, he carries little credibility because his findings ignore or cursorily discount relevant facts inconsistent with his opinions and are not based on “sufficient facts.” Fed. R. Evid. 702(b). These opinions are less those of a detached expert and more those of an advocate. Va. Elec. & Power Co. v. Sun Shipbuilding & Dry Dock Co.,
In sum, the court has considered the history of official racial discrimination in North Carolina (and unofficial discrimination, to the extent relevant and offered), including the opinions of Charles T. Clot-felter, Ph.D., Professor of Law, Economics, and Public Policy at Duke University, that are discussed below. There is significant, shameful past discrimination. In North Carolina’s recent history, however,
c. Racially-Polarized Voting
The second Gingles factor considers “the extent to which voting in the elections of the state or political subdivision is racially polarized.”
The Supreme Court has noted that while “[s]ome commentators suggest that racially polarized voting is waning—as evidenced by, for example, the election of minority candidates where a majority of voters are white..., [sjtill, racial discrimination and racially polarized voting are not ancient history.” Bartlett v. Strickland,
The court finds that polarized voting between African Americans and whites remains in North Carolina, so this factor favors Plaintiffs. Plaintiffs have not presented any evidence regarding Hispanies and racially polarized voting. (See, e.g., PI. Ex. 231 at 20-26; PI. Ex. 229 at 7-8.)
d. Enhancing the Opportunity for Discrimination
The third Gingles factor has the court consider “the extent to which the state or political subdivision has used unusually large election districts, majority vote requirements, anti-single shot provisions, or other voting practices or procedures that may enhance the opportunity for discrimination against the minority group.”
Plaintiffs do not claim that any of these procedures are currently used in North Carolina. Rather, in support of this factor, Plaintiffs refer to voting restrictions imposed in the late nineteenth century, (PI. Ex. 229 at 9); a poll tax that lasted until 1920, (id.); a literacy test that is currently part of the North Carolina State Constitution, though rendered unenforceable by the VRA since 1965, (id. at 9-10); and various objection letters issued by the DOJ when North Carolina was subject to § 5 preclearance, (id. at 10). Plaintiffs also cite to various legal decisions from the 1980s that collect this history. (Doc. 346 at 128-29.) Yet, no evidence was introduced showing how these discontinued practices have, or could have, interacted with SL 2013-381 to lessen minority opportunity to participate in the political process.
Plaintiffs also argue that SL 2013-381 itself enhances the opportunity for discrimination because the eliminated mechanisms “were effective tools in helping to reverse the persistent disparities in registration and participation.” (Id. at 129.) Plaintiffs offered no such evidence in this case. And, in any event, that would be a rather circular method of employing the Gingles factors. This factor does not favor the Plaintiffs.
The fourth Gingles factor asks, “if there is a candidate slating process, whether the members of the minority group have been denied access to that process.”
f. Continuing Effects of Discrimination Hindering Participation
The fifth Gingles factor, upon which Plaintiffs rely most heavily, examines “the extent to which members of the minority group in the state or political subdivision bear the effects of discrimination in such areas as education, employment and health, which hinder their ability to participate effectively in the political process.”
In essence, this requires Plaintiffs to show both that (1) African Americans and/or Hispanics bear the effects of earlier discrimination, and (2) that those effects presently hinder their ability to participate effectively in the political process. Defendants contest both points. In support of their claim, Plaintiffs presented the following.
The evidence showed that African Americans and Hispanics are more likely to be unemployed and more likely to be poor
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(PI. Ex. 45 at 6-7.)
With regard to transportation, African Americans and Hispanics are less likely than whites to have access to a vehicle. Only 2.4% of whites live in homes without access to a vehicle, compared to 10.7% of African Americans and 6.4% of Hispanics. (Id. at 13-14.) That disparity becomes
As discussed above, African Americans and Hispanics are more likely to move than whites. (Id. at 17 (“For instance, 13.6 % of non-Hispanic whites reside in a different house than they did last year, compared to 18.5% for both non-Hispanic blacks and Hispanics.”); PI. Ex. 46 at 52 (“[A]n average of 17.1% of blacks moved within the state ... compared to only 10.9% of whites.”).) This is consistent with the finding that minorities are disproportionately likely to be poor and the poor are more than twice as likely to move as the non-poor. (PI. Ex. 45 at 17.)
African Americans and Hispanics in North Carolina also fare worse than whites in terms of health outcomes. (PI. Ex. 229 at 11 (stating that 24% of African Americans and 29% of Hispanics have “fair” to “poor” health, compared to 16% of whites in North Carolina).) Further, the poor in North Carolina are moré likely to be disabled, and among the poor, minorities are more likély to be disabled. (PI. Ex. 45 át 2.)
African Americans and Hispanics are more likely to experience disparate educational outcomes than whites. Dr., Burden reported that among the 2011-2012 cohort, high school graduation rates in North Carolina were 85% for whites, 75% for African Americans, and 73% for Hispanics.
At trial, Dr. Clotfelter was tendered as an expert in the history and economics of education in North Carolina. He examined disparities between African American and white students in North Carolina in terms of educational resources and outcomes, past and present. (Doc. 330 at 127-28.) The court finds him to be a credible witness.
Dr. Clotfelter testified that historically North Carolina has contributed to its educational disparities in the following ways: slavery, segregated schooling, and purposeful differences . in funding. favoring whites during segregation.
Nevertheless, disparities continue to the present day in various ways. Dr. Clotfelter found that disparities in education funding have continued after the end of de jure segregation. (Id. at 3-4.) For example, he observes that a child’s educational success correlates - with his parents’ educational levels, which tends to perpetuate historic patterns of official discrimination even after official discrimination has ended. (Id. at 6-12.) An achievement gap still persists in North Carolina, though this gap compares favorably to the majority of other States. (See, e.g., Def. Ex. 268 at 49-50.)
Therefore, Plaintiffs have demonstrated that African Americans and Hispanics in North Carolina are disproportionately likely to move, be poor, less educated, have less access to transportation, and experience poor health. There was no showing that Hispanics suffer these as a result of historical discrimination. However, there was a showing that the socioeconomic disparities experienced by African Americans can be linked to the State’s disgraceful history of discrimination. That history is more distant than it once was, and things have clearly improved, but the effects of historical discrimination against African Americans are assuredly linked by generations, and thus achievement in education and wealth can be tied to the success of one’s parents and grandparents. Accordingly, this court finds that African Americans experience socioeconomic factors that may hinder their political participation generally. This is consistent with the Senate Report itself, which contemplates that socioeconomic disadvantage makes political participation more difficult.
There are, however, questions as to how these ' socioeconomic disadvantages endured by African Americans, which make political participation more difficult as a general matter, make, or are linked to making, it more difficult under SL 2013-381. Is it possible that if a State otherwise makes it easy enough to register and vote, existing socioeconomic disparities in this 21st century will prove immaterial? If not, could African Americans ever have had an equal opportunity prior to SL 2013-381, or in fact under any voting system? In addition, if socioeconomic disparities suggest African Americans will have a more difficult time participating, what is the court to make of the fact that African American participation increased in 2014 under SL 2013-381?
At trial, Plaintiffs presented Cynthia M. Duncan, Ph.D., a sociologist who studies poverty. Her testimony was credible but of limited helpfulness. She analyzed poverty in North Carolina by analyzing Census data for the State,
Plaintiffs presented the video deposition of Lynne Vemon-Feagans, PhJD., a developmental psychologist and linguist tendered as an expert in non-urban poverty in North Carolina. She is the principal investigator for the Family Life Project and analyzed its data to see whether African American families in the data set would face greater obstacles “in meeting the requirements” of SL 2013-381 than non-African American adults in the study. (PL Ex. 240 at 1,4.)
The Family Life Project is a study of families living in three rural North Car-, olina counties. (Id. at 8.) Families were recruited into the project upon the birth of a child (the researchers visited hospitals every day) from fall 2003 to fall 2004. (Id at 8-9.) Data were collected through inter- • views conducted at eleven home visits over a seven-year period. (Id. at 9.)
Based on her analysis of the project’s data, Dr. Vernon-Feagans opined that poor rural African American families were poorer than poor rural non-African American families. (Id. at 11.) She also opined that the African American families she studied were disproportionately likely to experience factors preventing them from participating in “civic life.” (Id. at 5.) These include less access to transportation; less access to computers and internet services; non-standard work hours; racial discrimination; and “a greater number of negative life events (divorce, death in the family, major illness).” (Id. at 5-6.) They possessed demographic factors making participation in civic life more difficult: “single parenthood, lower levels of literacy, or multiple child care arrangements.” (Id. at 6.) They also experienced more instability in living conditions—“more frequent residential moves”—and “less predictability in their daily lives” than non-African American families. (Id.) Ultimately, she concluded: “Together these multiple factors can disproportionately hinder African American adults from participating in community life and create barriers that can also prevent them from meeting the demands of North Carolina House Bill 589.” (Id.) Specifically, she opined on what would be required of the studied women “in order to obtain a valid picture ID, to vote in a correct precinct, to come to a correct polling place during restricted hours, and to register to vote 25 days before an Election.” (Id. at 5.) She opined that the addition of the voter-ID requirement and the elimination of early voting, SDR, OOP, and pre-registration would make it harder for African American families to vote. There are multiple problems with her opinion.
First, her opinion is based on SL 2013-381’s version of the photo-ID requirement, which has been significantly amended by SL 2015-103 and the reasonable impedi
Fifth, Dr. Vernon-Feagans’ definition of “civic life” was vague, meaning “activities that families may want to have access to in their community,” (PI, Ex. 681 at 64.) For her, this would include going to a parent-teacher conference or a doctor’s appointment. (Id. at 16.) It did not appear to focus on how a citizen participates in and contributes to a political or social community’s common welfare. Cf. Webster’s Third New International Dictionary 412 (1986) (defining civic to refer to activities “forming a component of or connected with the function, integration, and development of a civilized community ... involving the common public activities and interests of the body of citizens”).
Finally, Dr. Vernon-Feagans’ opinion was merely predictive, it was not based on the actual registration and voting experiences of any of the subjects of her study under SL 2013-381 or any other voting procedure. In other words, neither she nor Plaintiffs presented any data on voter turnout and registration rates for her project participants or for the studied-counties more generally, although such information is presumably available because the participants are known and Plaintiffs have access to North Carolina’s voter database. It is certainly available for the rural areas studied. In summary, the court finds Dr. Vernon-Feagans’ testimony of limited probative value.
Plaintiffs presented Gerald Webster, Ph. D., Professor of Geography at the University of Wyoming, as an expert in geography, political geography, and spatial analysis. Dr. Webster opined on the effect of the elimination of OOP voting on North Carolina’s two largest counties, Wake and Mecklenburg. (PI. Ex. 241 at 2.) There
Dr. Webster’s opinion is limited. He did not know the racial breakdown of the OOP voters he studied, nor did he study the voting history of any of the OOP voters (even though he was capable of doing so). (Doc. 334 at 190, 198.) Further, he did not consider whether these individuals had voted at the correct precinct in the past, nor did he know why these individuals voted at the incorrect precinct. (Id. at 198-99.) Most critically, he did not know whether any individual’s correct precinct was closer to the voter’s home or workplace, a key question in the burden analysis. (Id. at 198.)
In contrast, Defendants offered the opinion of Dr. Hofeller, who also studied the distance between the precinct where OOP voters cast their ballot and their correct precinct. (Def. Ex. 212A at 18-19.) In contrast to Dr. Webster, Dr. Hofeller examined statewide data and broke them down by race. (Id. at 18-19 & tbl. 23.) He found that 60,3% of African American OOP voters cast a ballot within five miles of their correct precinct. (Id. at 18.) By contrast, only 49.1% of white OOP voters cast a ballot within five miles of their correct precinct. (Id. at 18 & tbl.23.)
The court finds neither expert to provide very persuasive evidence on the issue. But Dr. Webster’s approach was myopic, even relative to Dr. Hofeller’s.
Finally, Plaintiffs presented the testimony of Kathryn Summers, Ph.D., a professor at the University of Baltimore, as an expert in literacy and voter system' usability. She opined that SL 2013-381, especially the elimination of SDR, would burden low literacy voters, of which a disproportionate share are African American.
To reach her conclusion, Dr. Summers designed a usability study in Baltimore, Maryland. (Doc. 331 at 16.) Dr. Summers non-randomly recruited twenty African American, low-literacy participants, all from Baltimore, except for one, who was from Pennsylvania; some she recruited off the streets, others at a train station. (Id. at 38-39.) Each participant was paid $80 per hour and a half. (Id.) The participants were placed in a room with a computer, and Dr. Summers sat with them. (Id. at 39-40.) She then asked them to pretend they had just moved to North Carolina and to pretend there was an upcoming election in which they wished to vote, though no campaign issues were discussed. (Id. at 40.) The participants would then try to figure out how to register and vote. (Id. at 41-42.) Dr. Summers would role play, pretending to be someone at the SBOE, for example. (Id.)
The problems with the study are myriad. The most obvious is that Dr. Summers was studying Marylanders, not North Car-
The details about the participants themselves are most telling. Dr. Summers opined at trial: “Specifically, the thing that would help—absolutely be most helpful above anything else would be an opportunity to do same-day registration.” (⅛ at 31.) But the question for the court is equality of opportunity, and, interestingly, nineteen of the twenty participants in her study were already registered Maryland voters. (Id. at 45.) Seventeen of the twenty had voted in the last midterm. (Id.) That these low-literacy participants were able to register and vote despite the fact that Maryland does not offer SDR significantly undermines her opinion. (Id.) Dr. Summers did not explain whether the other participants had in fact tried and failed to register or vote in Maryland.
Dr. Summers also criticizes North Carolina’s registration system because several of her participants struggled to register to vote in North Carolina or never realized they needed to register. In particular, Dr. Summers criticizes the registration form itself and how it can be accessed. (PI. Ex. 239 at 33-34.) Of course, SL 2013-381 did not change (nor do Plaintiffs challenge) the registration form—which is a simple, seven question, single page document similar to the federal form. (Doc. 341 at 159.) Even after the elimination of SDR, a citizen may still register at the CBOE and enlist the aid of staff. One may also register by mail and have a number of persons assist in completing the form. Finally, one may register after the twenty-five day cut-off; that registrant just cannot simultaneously vote in the upcoming election.
As Dr. Hood observes, it makes little sense for Dr. Summers to assume that low-literacy citizens cannot figure out how to register in time for an election but can figure out how to vote early. (Def. Ex. 268 at 52.) Early-voting sites are less numerous compared to precinct sites on Election Day, when interest in voting peaks. (Id.) A registered voter can determine where to vote because his precinct is listed on his voter registration card. (Id.) By contrast, how would a motivated citizen with low literacy be able to determine when and where to vote early if he cannot figure out how to register on time?
Finally, on the issue of voter ID, Dr. Stewart presented socioeconomic data related to his first no-match list. (Doc. 408 and 53.) He analyzed the socioeconomic conditions of the zip codes and counties in which individuals on the no-match list disproportionately live and found that they were disproportionately in areas with lower socioeconomic conditions. (PI. Ex. 242 at 52-54, 58.) Because Dr. Stewart did not actually have - the wealth, income, or educational attainment of each individual voter, he “imputed” the socioeconomic characteristics of the voter’s ZIP code to each voter. (Id. at 62 n. 76.) Based on this analysis, he found that the median household income for whites on the no-match list was $47,840, compared to $41,766 (- $6,074) for African Americans. (Id. at 62 (tbl. 13).) Per capita income for whites on the no-match list was $25,305, compared to $22,038 (-$3,267) for African Americans. (Id.) Median house value was $114,222 for whites, compared to $99,055 (-$15,167) for African Americans. (Id.) The percentage with at least some college was 57.9% for whites, compared to 54.2% (-3.7%) for African Americans. (Id.)
Dr. Stewart’s data is of limited probative value for several reasons. First, it is based upon his first no-match list, which contained 397,971 individuals. (Id. at 38 (tbl. 7).) His second no-match list, which he relied upon at this court’s January trial and described as his “best estimate,” contains 173,108 fewer individuals. (PI. Ex. 891 at 19 (tbl. 11).) Dr. Stewart did not provide socioeconomic data for the no-match list on which he actually relies. Second, while his analysis shows socioeconomic disparities, Plaintiffs failed to show that these disparities would make it materially more difficult to vote under the reasonable impediment exception. Plaintiffs did not offer expert opinion establishing what level of literacy is necessary to acquire ID at the DMV or to complete the reasonable impediment process. Thus, Dr. Stewart’s finding that 3.7% more whites on the no-match list have “some college” than African Americans is not very helpful. Surely, someone with far less than “some college” could vote under the reasonable impediment exception, particularly in light of the substantial assistance available. Third, and finally, Dr. Stewart did not offer any opinion on the burden that remains after the enactment of the reasonable impediment exception. (Doc. 408 at 59.) Accordingly, his analysis fails to consider whether the reasonable impediment exception ameliorates any alleged burden that may have been imposed by SL 2013-381’s photo-ID requirement, much less proves otherwise.
In sum, Plaintiffs established that some segment of the State’s African Americans endure socioeconomic disparities that can be linked to State discrimination and this may make it more difficult for them generally to participate in any electoral system. Plaintiffs, however, failed to show that such disparities will have materially adverse effects on the ability of minority voters to cast a ballot and effectively exercise the electoral franchise after SL 2013-381 within the multitude of voting and registration options available in the State, especially, given that the 2014 turnout data show increased participation among African Americans under SL 2013-381. See Salas,' 964-F.2d at 1556 (finding that “the high incidence of Hispanic registration in the District is persuasive evidence that Hispanic voters are not deterred from par
g. Racial Appeals in Campaigning
The sixth Gingles factors asks “whether political campaigns have been characterized by overt or subtle racial appeals.”
Even considering the 2010 incident, and even if the acts of Jesse Helms while running for senator in 1990 can be considered recent racial appeals, (PI. Ex. 238 at 10-16), SL 2013-381 does not meaningfully interact with any of the alleged racial appeals to affect minority political participation; This factor and the scant anecdotal evidence offered in support of it are not very probative here. Veasey,
h. Minority Electoral Success
Under § 2, the “extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered” among the totality of the circumstances. 52 U.S.C. § 10301(b); accord Gingles,
Plaintiffs argue that African Americans and Hispanics are underrepresented in elected- offices in North Carolina, compared to their proportion of the population. They acknowledge that African Americans have recently approached parity with whites, though Hispanics remain underrepresented. (PI. Ex. 229 at 14.)
In response, Defendants note that African Americans constitute 62.5% 'of the Democratic Senators and 50% of the Democratic Representatives. (Def. Ex. 268 at 47.) Moreover, after SL 2013-381 was enacted, and under a Republican redistricting plan, the House gained an additional African American member. (Doc. 331 at 127-28,144.)
In sum, while minorities have historically been underrepresented in North Carolina, today African American electoral success,' at least outside of State-wide races, approaches parity with their prevalence in the electorate. Hispanics remain underrepresented, but only slightly so in the Géneral Assembly. Based on this evidence, and given that § 2 does not give minorities any claim to proportional representation, to the extent that this factor favors Plaintiffs, it .does so only weakly.
i. Responsiveness of Elected Officials
The eighth Gingles factor asks “whether there is a significant lack of responsiveness on the part of elected officials to the particularized needs of the members of the minority group.”
Plaintiffs suggest that any lingering socioeconomic disparities between whites and minorities proves a lack of responsiveness: (Doc. 346 at 6-7.) Plaintiffs point to no State policy for this assertion. If a significant lack of responsiveness can be established by pointing to socioeconomic disparities generally, without accounting for specific State policies, then every State would be significantly unresponsive because socioeconomic disparities are unfortunately widespread. • The court finds Plaintiffs’ reliance on other Gingles factors unpersuasive evidence on this factor.
Plaintiffs also assert that the enactment of SL 2013-381 demonstrates a' lack of responsiveness. (Doc. 346 at 129.) Citing Veasey,
The court declines to infer a significant lack of responsiveness on this- record, especially where there is evidence of historical policy disagreements on-several provisions. Moreover, besides this -law, Plaintiffs have failed to point to any specific “particularized” need of African Americans and Hispanics in North Carolina about which the State has been unresponsive. Indeed, Dr. Leloudis, when pressed at.trial, was unable to articulate, anything the General Assembly needed to do to be more responsive to the needs of minorities, other than a generalized statement of “equitable inclusion in the political process.” (Doc. 338 at 47.)
j. Tenuousness of the State’s Justifications
The last Gingles factor requires the court to assess “whether the policy underlying the -state or political subdivision’s use of such voting qualification, prerequisite to voting, or standard, practice or procedure is tenuous.”
i. Voter ID
The stated purpose of North Carolina’s voter-ID law is to ensure , that the in-person voter and the registrant are the same person. 2013 N.C. Sess. Law 381, preamble (“An Act ... to provide photo identification before voting to protect the right of each registered voter to cast a secure vote with reasonable security measures to confirm voter identity as accurately as possible without restriction”). Because North Carolina does not. require the address on a voter’s ID to match the address of registration, the voter-ID law is exclusively designed to prevent in-person voter impersonation fraud.
Nineteen States currently have some form of a photographic identification requirement for voting. (Def. Ex. 270 at 17.) At the time North Carolina enacted its voter-ID requirement, the Supreme Court had upheld a challenge to Indiana’s ID law in Crawford. In Crawford, the Supreme Court found that Indiana’s photo-ID law furthered the State’s legitimate interest in modernizing elections, deterring voter fraud, and safeguarding voter confidence in the integrity and legitimacy of elections.
Plaintiffs argue that there was no evidence of voter impersonation fraud in North Carolina. The same can be said of Indiana—there being no evidence of in-person voter impersonation fraud occurring at any time in its history, yet the Supreme Court recognized in Crawford that voter fraud has occurred in other jurisdictions and that “not only is the risk of voter fraud real but ... it could affect the outcome of a close election.”
In 2005, the Commission on Federal Election Reform, chaired by President Jimmy Carter and former Secretary of State James A. Baker, III, recommended that States implement “a uniform system of voter identification” -as one of its five pillars of “modernizing” and “[bjuilding confidence in U.S. elections.” See Commission on Federal Election Reform, Building Confidence in U.S. Elections iv (Sept. 2005) (hereinafter, “Carter-Baker Report”). Even though the Commission found that there was not “evidence of extensive fraud in U.S. elections or of multiple voting,” it found that such fraud does occur and that “it could affect the outcome of a close election.” Id. at 18. The Commission reasoned that “[t]he electoral system cannot inspire public- confidence if no safeguards exist to deter or detect fraud or to confirm the identity of voters.” Id. Likewise, the Commission recognized that changes in American life require our electoral systems to be modernized.
In the old days and in small towns where everyone knows each other, voters did not need to identify themselves. But in the United States, where 40 million people move each year, and in urban areas where some people do not even know the people living in their own apartment building let alone their precinct, some form of identification is needed.
Id.
Despite the bipartisan Commission’s finding that ID is needed and the Supreme Court’s ruling that photo ID serves legitimate interests, Plaintiffs nevertheless claim that North Carolina’s voter-ID requirement is tenuous. Plaintiffs do not hide the fact that this is in essence a challenge to Crawford itself.
In support, Plaintiffs presented Lorraine Minnite, Ph.D., Associate Professor of Public Policy and Director of the Urban Studies Program in the Department of Public Policy and Administration at Rutgers University, who asserts ’that voter impersonation fraud “has been statistically nonexistent in North Carolina since 2000.” (Doc. 409 at 21.) Between 2000 and 2014, Dr. Minnite found, the SBOE had only referred two cases of voter impersonation to district attorneys. (Id. at 20.) There is no evidence that either of these referrals resulted in a prosecution or conviction. (Id. at 21.) Two additional referrals have been made since 2014. (Doc. 410 at 138-39.) These referrals remain pending, but no charges had been filed at the time of this court’s January trial. (Id.) Even Dr. Min-
But even if there is no evidence of voter impersonation fraud in North Carolina, there are two problems with Plaintiffs’ argument. The first is that the signature attestation process that North Carolina relied on prior to its ID law provided poll workers with limited tools to detect fraud. Dr. Minnite lauded signature attestation as a “very good system because a signature is a biometric identifier.” (Doc. 409 at 37.) The problem is that poll workers did not have access to voter’s signatures so that a comparison could be made, (Doc. 414 at 123-24.) Unless the poll book indicated that someone had already voted under the name provided, (see Doc. 410 at 90), the only way the poll worker could recognize an impersonator was if they either knew the person presenting or knew the person whose name was provided, (see Doc, 414 at 123-24). This of course assumes a small world that, as the bipartisan Commission recognized, no longer exists. Carter-Baker Report, at 18. Back when all voting occurred on Election Day at precincts with small numbers of voters, poll workers’ knowledge of the community may have been sufficient to meaningfully guard against impersonators. See id. But as precincts have become larger and early voting at centralized locations has become more pervasive, the risk that voter fraud may go undetected has increased. (See PI. Ex. 983 at 63 n.91 (Government Accountability Office report, stating that “[l]ike other crimes, instances of in-person voter fraud may occur that are never identified by or reported to officials. This is due, in part, to challenges associated with identifying this type of fraud, as both successful fraud and deterred fraud may go undetected.”).)
Second, and most significantly, Crawford found photo ID to serve legitimate State interests even though there was “no evidence of any [in-person voter impersonation] actually occurring in Indiana at any time in its history.”
It is clear from Dr. Minnite’s testimony that she simply disagrees with the Supreme Court. She did not even reference Crawford in her report, instead citing a Missouri Supreme Court case predating Crawford. (Doc. 337 at 47-48; PI. Ex. 232 at 20.) At the July trial in this case, she testified that the United States Supreme Court’s discussion of fraud “doesn’t constitute an informed opinion or an informed knowledge about voter fraud” because “it doesn’t sort of meet my standards of having a correct understanding about the evidence.” (Doc. 337 at 48.) Further, at trial in January, despite recognizing that Crawford is still good law, Dr. Minnite explained that she views circumstances since Crawford as having cast a “pall over [it] as being something that we would cite to.” (Doc. 409 at 24.) Principally, Dr. Minnite pointed to a change of position by Judge Richard Posner of the Seventh Circuit Court of Appeals, who drafted that court’s majority opinion that was affirmed by the Supreme Court in Crawford. (Id. at 25.) After the Seventh Circuit upheld Wisconsin’s voter-ID law in Frank v. Walker,
There are significant problems with Dr. Minnite’s reliance on Judge Posner’s dissent. First, to the extent that Judge Pos-ner’s views were shaped by the specific stringency of Wisconsin’s ID requirement, North Carolina’s reasonable impediment exception makes its ID requirement less burdensome than either Indiana’s or Wisconsin’s—a fact that Dr. Minnite does not address. See id. at 784-85; (Doc. 409 at 24-26). Although indigent Indiana voters were permitted to vote without an ID so long as they completed an affidavit confirming their identity and indigence, neither Indiana’s nor Wisconsin’s ID laws had a reasonable impediment exception. See Frank,
Plaintiffs next assert tenuousness on the ground that North Carolina’s photo-ID law does not apply to absentee mail voting. According to Dr. Burden, voter fraud is more likely to occur with absentee mail voting than with in-person voting. (Doc. 407 at 54-55.) Dr. Burden thus reasoned that if North Carolina was truly concerned with voter fraud, it would apply its photo-ID requirement to absentee mail ballots rather than in-person voting. (Id. at 100-01.) Dr. Burden’s testimony did not provide clarity on how practical it would be to require photo ID of absentee mail voters. He did, however, claim that his home state of Wisconsin requires absentee mail voters to show photo identification. (Id. at 101.) This is true, but not entirely accurate.
Wisconsin requires individuals requesting absentee ballots to present photo ID by mailing “in a photocopy of an acceptable photo ID .with his or her request.” Frank v. Walker,
States sometimes tread a difficult path, as they balance their interest in secure elections with protecting a voter’s right to participate equally. The balancing act inherent'in determining which requirements to impose and which to omit is why legislatures are given substantial leeway in determining when and how to address and remedy various challenges. Cf. Williamson v. Lee Optical of Okla., Inc.,
Moreover, while certain mechanisms may be more secure than others, SL 2013-381 and SL 2015-103 raised the security of both in-person and absentee mail voting. As noted above, North Carolina relied upon a system of signature attestation for in-person voting prior to SL 2013-381. (Doc. 410 at 83.) For voter impersonation fraud to occur, the impersonator only needed to acquire the voter’s name and address of registration. (Doc. 410 at 89-90.) Both of these pieces of information— plus the voter’s registration status, county of registration, and polling location—can be acquired by using the “NC Public Voter Search” feature on the SBOE’s Website. NC Public Voter Search, N.C. State Bd. of Elections, https://enr.ncsbe.gov/voter_ search_public/ (last visited April 11, 2016). The impostor also had to sign an ATV form attesting to his or her identity and address under penalty of perjury, (Doc, 410 at 83), but poll workers did not have the voter’s registration signature to compare with the impostor’s signature, (Doc. 414 at 123-24).
After SL 2013-381 and SL 2015-103, the at least 96.5% of North Carolinians who have a qualifying photo ID will be required to present it in order to vote in person. (PI. Ex. 891 at 19 (tbl. 11).) Curbside voters, although exempt from the photo-ID requirement, must still present either a qualifying photo ID or a HAVA document bearing the voter’s name and address. N.C. Gen. Stat. §§ 163-166.13(a)(l), 163-166.9, 163-166.12(a). Those who have an impediment to acquiring qualifying ID must, in addition to attesting to their identity and address, provide a HAVA document, their registration card, or their date of birth and SSN4. Id. § 163-166.15(c). Therefore, even if an impostor seeks to use the reasonable impediment exception to commit fraud, he will at least need to acquire an acceptable HAVA document, the voter’s registration card, or two pieces of personal information on the voter: the voter’s date of birth and SSN4. Id.
Session Law 2013-381 also raised the security of absentee mail ballots. To request an absentee ballot today, absentee voters must provide either (1) them driver’s license, learner’s permit, or provisional license number; (2) their special identification card for nonoperators card number; or (3) their SSN4. N.C. Gen. Stat. § 163-230.2(a)(4). This requirement did not exist prior to SL 2013-381.
In sum, despite making significant accommodations for voters, SL 2013-381 and SL 2015-103 nevertheless raised the level of security for both in-person and absentee mail voting. This has provided poll workers and CBOEs with a larger toolset with which to detect and deter voter fraud. Accordingly, North Carolina’s ID law is not tenuous and serves legitimate State interests articulated by the Supreme Court in Crawford.
ii. Early Voting
Plaintiffs contest the General Assembly’s justifications for reducing the number of early-voting days from seventeen to ten.
The General Assembly made a number of alterations to early voting with SL 2013-381. While deciding to reduce the early-voting period to ten days, it still required that CBOEs offer the same number of aggregate hours of early voting as offered in 2010 for future non-presidential elections and as offered in 2012 for presidential elections. N.C. Gen. Stat. § 163-227.2(g2). The General Assembly also permitted counties to seek a waiver from the aggregate-hours requirement but required a unanimous vote in favor of the waiver from a bipartisan CBOE and a bipartisan SBOE. Id. § 163-227.2(g3); Considered together, a reduction in hours can be obtained only if there is agreement among five members of the majority party and three members of the minority party. N.C. Gen. Stat. § 163-19. If there is any dissent, the waiver request is vetoed. (See Doc. 340 at 204-05.) Moreover, while both before and after SL 2013-381, a CBOE could, by unanimous vote of its three members, open additional early-voting satellite sites, N.C. Gen. Stat. § 163-227.2(g), SL 2013-381 ensured greater uniformity, and perhaps fairness, by requiring that every satellite site “provide for the same days of operation and same number of hours of operation oh each day for all [satellite] sites in that county for that election,” id.
Defendants offered multiple justifications for the changes to the early-voting schedule. Proponents of the reduction of days of early voting, even before the same-hours requirement was introduced, stated an intent to free up resources so that CBOEs could offer more early-voting sites across each county. (See, e.g., PL Ex. 202 at 31-32 (“[T]here is some savings in [the removal of the seven days] to open up additional sites ... [y]ou don’t have to go across town if it’s not in your neighborhood.”); PI. Ex. 549 at 2-8.) Proponents expressed a concern that the first seven days of early voting were, the least used days, (PI. Ex. 202 at 31), which was also true. There was also a stated concern that early-voting sites had been located based on political gamesmanship, so that having more sites spread more evenly across counties, open for longer hours, would ne
However, while SL 2013-381 mandated uniformity in the hours of satellite early-voting sites, without the same-hours requirement the increase in the . early-voting sites would have been entirely at the discretion of each OBOE. Senator Stein, a Democrat, proposed the same-hours amendment, which he believed would compel CBOEs to offer more early-voting sites and extended hours. (PI. Ex. 549 at 16-18; PI. Ex. 550 at 11.) He said on the floor of the Senate, “So if you all want to ensure that the citizens of this state have the same access to early voting that they have today with ten days as they have for seventeen days, you will support this amendment and I encourage you to do so.” (PI. Ex. 549 at 17.) The proponents apparently agreed with Senator Stein that they wanted to ensure the same amount of access to early voting, while also increasing the convenience of early voting for each day of the early-voting period, because the amendment passed by a vote of forty-seven to one. (Id. at 49.)
And, in fact, the modified early-voting schedule worked just this way: in 2014, not only were there more early-voting sites than in 2010, the previous midterm, but even more than in 2012, the previous presidential election. (See, e.g., Doc. 340 at 205-06.) There were also new, more convenient hours offered outside the typical 9 a.m. to 5 p.m. window. (See id.; Doc. 335 at 80; Def. Ex. 13; PL Ex. 242 at 167-68.)
Plaintiffs frame the law as no more than a thinly-veiled effort to provide less access to the polls by reducing the number of days of early voting. But this oversimplifies the nature of the changes in the law. Without the same-hours amendment, the court may well have had serious concerns about the change, particularly as early voting appears to have gained growing popularity among the electorate. However, the new law offers the same aggregate hours as before; provides for more polling places rather than fewer, so that different parts of a county are more equally served; establishes longer, more convenient hours of early voting for each day of early voting, to accommodate typical work schedules; and promotes bipartisanship in the placement and hours of early-voting sites. It does this by reallocating the resources devoted to the first seven days of early voting—those farthest from Election Day and the least popular period of early voting. In a world of budgets and limited resources, the General Assembly’s stated concerns and the means chosen to address them had a reasoned basis at the time; and, as history has demonstrated, the elections of 2014 have confirmed the proponents’ contentions and rebutted Plaintiffs’ fears.
Reasonable minds may differ as to the most desirable early-voting system.
Plaintiffs’ arguments otherwise fall short. Plaintiffs describe the aggregate-hours amendment as a “freezing” of the early-voting hours offered in a county. (Doc. 346 at 67.) This is a mischaracterization of the law. As described by its sponsor and Plaintiffs’ own witness, Senator Stein, the law is nothing more than a “floor,” (PI. Ex. 549 at 48), or “baseline minimum,” (ffl. Ex. 550 at 11), on the number of hours counties must offer. Counties, however, “can clearly offer more [hours].” (Id.)
Plaintiffs criticize the cost savings justification originally offered for the reduction in early-voting days. (Doc. 346 at 67-68.) But, by “savings,” the proponents’ reasons included an opportunity to reallocate resources, not just a net monetary savings. (PI. Ex. 202 at 30-31 (“There is probably a savings in the sense that by going from seventeen to the ten days you actually have more opportunity to open up new sites .... ”).) As noted above, the primary justification for the change in the early-voting schedule was more polling, places and greater parity and uniformity-in early-voting site accessibility. (See, e.g„ id.) If ■the proponents’ aim was to decrease overall costs, it is doubtful the General Assembly would have adopted the same-hours requirement by a vote of forty-seven to one. However, given the actual justifications offered by the law’s proponents, it is not surprising that Senator Stem’s amendment was so overwhelmingly approved. When combined with the ten-day schedule, the same-hours requirement furthered the interests of the law’s proponents by de facto requiring more polling places and more convenient hours.
For these reasons, because the ten-day early-voting schedule with the same-hours requirement promotes a significant State interest by making voting hours more convenient and polling locations more numerous and evenly distributed, it is not tenuous.
iii. SDR
Plaintiffs argue that Defendants’ justification for repealing SDR is tenuous because, they say, there was no evidence that SDR caused any significant administrative problem; thus, the attempt to fix a non-existent problem was pretextual. (Doc. 346 at 68.) Defendants argue that the General Assembly had ample evidence before it that SDR created several administrative problems that ultimately resulted in ineligible voters having their votes counted, effectively disenfranchising other eligible voters.
The evidence before both this court, and the General Assembly back in 2013, makes clear that SDR—-which effectively moved the twenty-five day registration cut-off to up to three days before Election Day— brought' with it several administrative problems and increased the likelihood that the State’s verification process could not be implemented. Indeed, Plaintiffs do not seriously dispute this latter point. Rather, at trial they acknowledged that SDR voters failed the State’s verification system,
Under North Carolina law that predates SDR and its repeal, CBOEs are required to verify that only qualified voters are registered to vote. N.C. Gen. Stat. § 163-82.7. To qualify to vote in North Carolina, a person must (1) be born in the United States or a naturalized citizen, (2) be eighteen years old, and (3) “have resided in the State of North Carolina and in the precinct in which the person offers to vote for 30 days next preceding an election.” N.C. Gen. Stat. § 163-55(a).
The mail verification process begins when a CBOE receives a registration application. See N.C. Gen. Stat. § 163-82.6. Upon receipt, the CBOE first makes a preliminary determination whether the applicant is qualified to vote. N.C. Gen. Stat. § 163-82.7(a). North Carolina law does not require a CBOE to make this preliminary determination by a specific time, but SBOE Director Strach testified that it should begin “as soon as [the CBOE] receive[s]” the application. (Doc'. 336 at 104.)
If the CBOE tentatively determines that the applicant is qualified, it initiates the “mail verification notice procedure.” Id. § 163-82.7(a)(2). This begins with the CBOE sending “a notice to the applicant, by nonforwardable mail, at the address the applicant provides on the [voter registration] application form.” Id. § 163-82.7(c). The notice includes the applicant’s assigned precinct and voting place and states that the county will register the applicant “if the [United States] Postal Service does not return the notice as undeliverable to the [CBOE].” Id. If the notice is not returned as undeliverable, the CBOE registers the applicant to vote. Id. § 163— 82.7(d). Under SBOE policy, tlie CBOE must do so if the notice is not returned as undeliverable within fifteen days after mailing. (Doc. 336 at 111, 121-22.)
If the notice is returned as undeliverable, however, the registrant’s status remains unverified, and the statute requires the CBOE to repeat the process by sending a second notice by nonforwardable mail to the same address. N.C. Gen. Stat. § 163-82.7(e). If the second notice is not returned as undeliverable, the applicant is registered to vote. Id. If, however, the second notice is returned as undeliverable, the applicant’s registration is denied. Id. § 163-82.7(f); (Doc. 336 at 126; Doc. 340 at 208). As before, SBOE policy requires the
Voting complicates the mail verification process. Under the statute, “If the [CBOE] has made a tentative determination that an applicant' is qualified to vote ..., then that person shall not be denied the right to vote in person in an election unless the Postal Service has returned two notices as undeliverable.”
Mail verification is admittedly “not a precise verification system” for determining an applicant’s residency. (Doc. 336 at 112 (Director Strach acknowledging that mail verification has imperfections).) For example, just because the postal service delivers a verification does not mean that the applicant lives there. In addition, eligible voters, such as those living in school dormitories and apartments, can fail mail verification because sometimes those institutions fail to properly deliver nonfor-wardable mail to such residents. Though imperfect, however, North Carolina’s mail verification process provides some assurance that the registrant resides where he or she claims. More importantly, it is 'the method the State adopted years before any of the voting changes at issue were introduced.
The North Carolina General Assembly expressed several reasons for eliminating SDR. Generally, SDR caused problems with the processing and verification of voter registrations during early voting. These problems were noted four years earlier in
For one, SDR imposed administrative burdens on CBOEs. During the Senate Rules Committee debate, Senator Rucho contended;
There’s no way and there’s no simple way to validate. What we’re trying to do is give the Board of Elections an opportunity to do their job correctly, validate those individuals and be sure that the election is above board.
(Doc. 134-4 at 45.) Later, during the second reading, he added:
It also allows time for—to verify voters’ information by repealing same day registration and which will ensure accuracy. It’s been a challenge for the Board of Elections to be able to identify and validate everyone that has come there on the basis of one-day registration. ...
(Id. at 87; see also PI. Ex. 56 at 5-6; PL Ex. 202 at 41 (noting that “a lot of [CBOEs] have a very hard time working their way through a system when someone comes up and registers to vote and votes at the same time”); PI. Ex. 549 at 5.) The SBOE’s 2009 memo reported that CBOEs “had to hire additional staff to process [SDR] registrations.” (PI, Ex. 56 at 5.) Moreover, CBOEs also had difficulty making a timely preliminary determination about the qualifications of a registration applicant using SDR within the two business days required. See 2007 N.C. Sess. Law 253, §• 1. According to the SBOE, CBOE staff “worked long hours and workweeks to meet this two-business day requirement. Although staff worked as efficiently as they could, generally, it was not possible to process the number of voter registration applications received during one-stop [early voting] within this two-day period.” (PI. Ex. 56 at 5.) Similarly, “[d]ue to volume issues, [CBOEs] experienced minor [delays] in DMV validations, especially during the last few days of one-stop voting.” (Id.) Thus, these actual administrative burdens on CBOEs, identified by the SBOE Executive Director in 2009, persisted even though CBOEs responded with increased staffing and hours. For a State with ten million residents, these are real-life concerns. Marston v. Lewis,
Further, SDR created additional administrative burdens by requiring CBOEs to process “intersecting registrations.” For example, in the words of former Director Bartlett,
There were issues with some voters who submitted, a voter registration application to one county during the last few days before the registration deadline and then appeared to vote in another' county or actually registered at one-stop in another county and voted. Similarly, there were voters who registered at a one-stop site and voted although they had been issued a mail-in absentee ballot in a previous county of registration.
(PL Ex. 56 at 7.) To address this issue, CBOEs were required to process the newest registration and then cancel and revoke the previous registration. (Id.) Because registrations are timely so long as they are postmarked by the registration deadline, “[m]any mailed-in registrations
The North Carolina General Assembly also articulated that it eliminated SDR to better ensure that the State’s mail verification process could be completed before a registration applicant’s vote was counted. (PI. Ex. 202 at 41; PI. Ex. 549 at 5.)
North Carolina’s mail verification requirement is most effective when a traditional registrant votes on Election Day, thus offering the maximum number of days to run its intended course. Early voting complicates that by' advancing the day a ballot is cast and reducing the ability for the State to remove registrants who fail mail verification before voting. SDR further magnifies this problem. First, by making registration and voting contemporaneous, it further reduces the State’s ability to remove registrants before they vote. Second, by placing registration closer to the point where votes must be challenged or counted, it makes it much more likely that those who fail mail verification will do so after it is too late to challenge their ballot. In this regard, SDR (and the removed seven days of early voting) conflicted with pre-existing law; in a practical sense, they are incompatible.
Ballots cast by same-day registrants, like all other absentee ballots, are. counted on Election Day; under statute, they must be challenged, if ever, on Election Day.
Plaintiffs respond that “SDR registrants [mail-] verified at rates comparable to, and sometimes higher than, non-SDR registrants.” (Doc. 346 at 32.) Defendants counter with evidence that, regardless of whether non-SDR registrants fail mail verification at higher rates, SDR registrants nevertheless vote at higher rates than non-SDR registrants despite failing mail verification.
Plaintiffs have filed several motions to exclude Mr. Neesby as a witness and to strike his testimony, (Docs. 326, 327), to which Defendants have responded, (Doc. 350).
The important fact is that SDR’s proximity to Election Day makes it much more likely that SDR registrants will be able to vote despite failing statutory mail verification.
In League, the Fourth Circuit found the State’s best fact to be “that a thousand votes that had not yet been properly verified had been counted in an election.”
In fact, the evidence before the legislators in 2013 established that in the 2012 general election alone, SDR required CBOEs to count the votes of at least 1,264 (we now know to be 2,361) SDR registrants who failed the State’s mail verification after Election Day and the canvass.
Accordingly, at trial Defendants provided what the Fourth Circuit appears to have sought at the preliminary injunction stage—evidence that suggests an important number of registrants cast improper ballots by voting with an incorrect address.
Plaintiffs nevertheless have made several additional challenges to the State’s provided justification.
Plaintiffs first highlight the problems with North Carolina’s mail verification process. (Doc. 346 at 73, 143.) Their criticisms áre not unjustified. But, as with many of Plaintiffs’ arguments in this case, such criticisms involve State policy considerations that have not been" challenged in this case. Indeed,' while Plaintiffs pointed out the weaknesses of mail verification, they neither challenged it as inappropriate nor demonstrated that other States have abandoned it.
Plaintiffs next contend that the General Assembly’s justifications are tenuous because they refused to take alternative routes to cure the problems, routes proposed by a local voter advocacy and government lobbying organization. According to Plaintiffs, Bob Phillips, the executive director of Plaintiff Common Cause North Carolina, “had shared with legislators three possible ways to change SDR to allow for more time for completion of the mail verification process.” (Doc. 346 at 65; PI. Ex. 12.)
This argument fails for a number of reasons. Most importantly, while relevant, just because the General Assembly chose one policy approach over another to' address a real problem does not render the chosen policy approach tenuous. See, e.g., Askew v. City of Rome,
Moreover, Phillips’ proposals face their own obstacles. Phillips proposed eliminating SDR during the last five days of the early-voting period. (PI. Ex. 12 at 6.) Of course, this conflicts with the relief demanded in this case by Plaintiffs. It also fails to acknowledge that it would still provide an inadequate number of days for the mail verification process to run its course,’ and Plaintiffs offered no evidence otherwise. Phillips’ second proposal was to move the canvass date back six days. This fails to recognize that the canvass date has no bearing on the fact that challenges must be made for SDR ballots on Election Day. See N.C. Gen. Stat. § 163-89(a). It also ignores the fact that, even if the canvass was’ later,
Finally, Plaintiffs contend that the removal of SDR is tenuous because North Carolina law permits the unverified-address-ballots of “unreported movers” (registrants who move to a different precinct within the same county more than thirty days before Election Day but fail to notify the CBOE) to be counted. (D.oc. 346 at 143.) What Plaintiffs do not acknowledge.is that North Carolina’s accommodation of unreported movers is in part required by § 8(e) of the NVRA. 52 U.S.C. § 20507(e). North Carolina provides unreported movers with three voting options on Election Day. First, they may vote a regular ballot in their new precinct, so long as they give an oral or written affirmation of their new address upon presentation to vote. N.C. Gen. Stat. § 163-82.15(e). Second, they may vote a regular ballot at a “central location in the county to be chosen by the [CBOE].” Id. Third, they can cast a provisional ballot at their former precinct, and the CBOE is required to “count, the individual’s provisional ballot for all ballot items on which it determines that the individual was eligible under State or federal law to vote.” Id In each situation, even if the unreported mover is subject. to the mail verification process after voting, see id. § 163-82.15(b) (requiring CBOE that receives notice of change of residence to initiate mail verification),
Under the NVRA, States have in effect two options. First, they can permit an unreported mover to choose between voting at his former precinct, a central location, or his new location.
For all these reasons, the court finds that the trial evidence demonstrates that the State’s basis for removing SDR was not pretextual or tenuous, but instead substantial.
Interestingly enough, at this court’s January trial, Dr. Burden recognized that States have a strong interest in a registration requirement. (Doc. 407 at 53.) In his words, “[mjandating voter registration at one point became a sort of obvious reform for many states. That was a new restriction, but it had a strong motivation behind it.” (Id.) Of course, a registration requirement is diluted where the State is not able to verify the information provided. SDR presents just such an issue; it requires the State to accept the votes of several thousand individuals who failed mail verification.
iv. OOP Voting
When introducing the revised HB 589 to the Senate Rules Committee, the repeal of OOP voting was described as “basically mov[ing] the law back to the way it was prior to 2005.” (See PI. Ex. 202 at 12.) Before 2005, North Carolina law required voters to vote in their assigned precinct.
Not until the 2004 general election did State election officials for the first time begin to count provisional ballots cast 'outside the voter’s precinct. James v. Bartlett,
Less than a month after the Republican challengers won in the North Carolina Supreme Court, however, the Democratically-controlled General Assembly amended the election laws and stated , that it had intended to permit OOP ballots all along, 2005 N.C. Sess. Law 2, § 1(3), even though HAVA does not require that OOP.provisional ballots be counted, see 52 U.S.C. § 21082(a)(4); James,
Plaintiffs claim that the repeal of OOP voting was tenuous. The trial evidence demonstrated otherwise.
Plaintiffs argue that there was no reason given for repealing OOP voting during the legislative process. The Supreme Court has explained that, in the Fourteenth Amendment context, “Although race-based decisionmaking is inherently suspect, until a claimant makes a showing sufficient to support that allegation the good faith of a state legislature must be presumed.” Miller v. Johnson,
Given the controversy in 2005, there was probably little need for a debate. When the Supreme Court unanimously interpreted the election laws to prohibit OOP voting, it provided extensive justifications for requiring voters to cast ballots in the correct precinct. The Court initially noted that the precinct-based “voting system is woven throughout the fabric of our election laws.” James,
statutory residency requirement provides protection against election fraud and permits election officials to conduct elections in a timely and efficient manner. The General Assembly recognized in ratifying N.C.G.S. § 163-55 that without a precinct residency requirement, there would be a generous magnification of the potential for mischief in the form of one person voting in numerous precincts.
Id. at 270,
The Court agreed with the findings of the Sixth Circuit as well, which provided a number of reasons for enforcing a precinct system:
The advantages of the precinct system are significant and numerous: it caps the number of voters attempting to vote in the same place on election day; it allows each precinct ballot to list all of the votes a citizen may cast for all pertinent federal, state, and local elections, refer-enda, initiatives, and levies; it allows each precinct ballot to list only those votes a citizen may cast, making ballots less. confusing; it makes it easier for election officials to monitor votes and prevent election fraud; and it generally puts polling places in closer proximity to voter residences.
Id. at 270-71,
The States long have been primarily responsible for regulating federal, state, and local elections. These regulations have covered a range of issues, from registration requirements to eligibility requirements to ballot requirements to vote-counting requirements. See Storer v. Brown,415 U.S. 724 , 730,94 S.Ct. 1274 ,39 L.Ed.2d 714 (1974) (“[T]he States have evolved comprehensive, and in many respects complex, election codes regulating in most substantial ways, with respect to both federal and state elections, the time, place, and manner of holding primary and general elections,the registration and qualifications of voters, and the selection and qualification of candidates.”)- One aspect common to elections in almost every state is that voters are required to vote in a particular precinct. Indeed, in at least 27 of the states using a precinct voting system, including Ohio, a voter’s ballot will only be counted as a valid ballot if it is cast in the correct precinct.
Sandusky Cty. Democratic Party,
Several of the legislators who voted for SL 2013-381 had also voted against allowing OOP voting in 2005, opting instead for the system recognized in Sandusky County Democratic Party and later in 2005 by the North Carolina Supreme Court in James. (Compare Def. Ex. 168 (House and Senate votes on OOP voting in 2005 by legislator), with PI. Exs. 124-25 (House and Senate votes on removal of OOP voting in 2013 by legislator).)
Defendants note an additional benefit in requiring in-precinct voting, which Plaintiffs fail to acknowledge: OOP voting actually partially disenfranchises voters. That is, when OOP was permitted, although OOP voters were permitted to vote in state-wide races, they were not permitted to vote in precinct-specific contests for which they would otherwise have been eligible had they only appeared at their assigned precinct. (Doc. 336 at 227-28.) This problem is only further aggravated by political organizations intentionally transporting voters to the wrong precinct, which in fact occurred before SL 2013-381 through, for example, the GOTV activities of one of the Plaintiffs in this case. (See, e.g., PI. Ex. 9 at 5; PI. Ex. 811 at 46.) Removing OOP voting thus ensures voters are fully enfranchised to vote in those contests in which they are eligible while also promoting the efficient and organized operation of the State’s election system. (See Def. Ex. 132 at 2-3 (Mecklenburg CBOE director observing that OOP potentially caused a second primary in the County).)
Plaintiffs contend that there is no trial evidence of the administrative burdens caused by OOP voting or the abuse of the preciiict system. (Doc. 346 at 68-69.) Defendants did, however, produce such evidence. First, SBOE Director Strach described the additional procedures required for administering OOP voting:
The county board of elections would determine ... what precinct [the voters] were properly registered in. So then they would have to go and research to see which offices they were eligible to vote for, and if those offices were different than the ballot that had been cast where they voted, then they would have to see which of the offices they voted for on that ballot they were eligible for, which ones they were not. ... [I]f that ballot was counted, it would either have to be hand counted or they would have to complete .a new ballot with those [eligible] races voted for in the way that the voter voted so they could be put through the machine, the voting machine.
(Doc. 336 at 227-28; see also PI. Ex. 817 at 43-46 (CBOE official describing the process of counting OOP provisional ballots under the old law).) Strach also testified that, after the removal of OOP voting, the review of provisional ballots to determine only whether ballots were cast in the correct precinct required minimal effort. (Doc. 336 at 228-29.)
It is true that the State’s accommodation of unreported movers creates administrative burdens that could be avoided without violating the NVRA. See 52 U.S.C. § 20507(e)(2). As noted above, North Carolina provides unreported movers with three Election Day voting sites, one of which is their former precinct. N.C. Gen. Stat. § 163-82.15(e). If an unreported
For 2006 through 2012, unreported movers accounted for 25.4% of provisional ballots,
In any case, permitting unreported movers to cast provisional ballots does not undermine the State’s asserted interest in a precinct-based system. As noted by the North Carolina Supreme Court in James, for voting to be timely and efficient on Election Day, officials need to be able to predict how many voters will vote in each precinct.
For these reasons, the State’s asserted interest in reducing the administrative burdens on OBOE staff is not tenuous, but not strong. The same is true of the State’s interest in fully enfranchising voters. However, the State’s interest in a precinct-based system, as articulated in James, is substantial.
v. Pre-Registration
Defendants offer two rationales for eliminating pre-registration. First, they argue that young people registered through pre-registration may become confused about their eligibility and registration status. (Doc. 347 at 29,' 56.) Second, they contend that the vast majority of States did not offer pre-registration. (Id. at 29.)
The second justification is true, but it is unclear how much weight to give such a generic justification. The court’s assessment under § 2 is local.
The first justification appears to be true to some degree. During the legislative debate, Senator Rucho noted that there was some confusion in his family when his son pre-registered, (PI. Ex. 202 at 22), though the nature of this confusion was not clearly laid out in the legislative debates.
In other ways, however, the legislative debates do tend to highlight some of the confusion that naturally flows from the way pre-registration actually works. Under the old law, when a person under the age of eighteen “pre-registered,” his pre-regis-tration application was sent to the SBOE. 2009 N.C. Sess. Law 541, § 10.(a). When that person reached the age of eligibility, the SBOE would automatically process the registration application. Id. § 7.(a). Thus, based on this system, one who pre-regis-ters was not yet actually registered to vote, and until turning the right age, the pre-registration application sat in an electronic queue, waiting to be processed. (Doc. 336 at 205.) But when the young person became old enough to register, the registration application would be processed, ultimately initiating mail verification. 2009' N.C. Sess. Law 541, § 10.(a) (providing that mail verification of pre-registrants was to begin “[n]o later than 60 days prior to the first election in which the applicant will be legally entitled to vote”). Any pre-registrant who had moved between (or even within) counties since preregistering would likely fail mail verification. Likewise, any pre-registrant who moved to and became a resident in a different county after being successfully registered would nevertheless have to register again.
Further, the former director of the Wake County Board of Elections, Cherie Poucher, testified that her office received calls from pre-registrants who were confused that they had never received a voter registration card. (Def. Ex. 368 at 17-18.) Ordinarily, registrants receive a voter registration card within a few weeks of submitting their registration. However, because, as shown above, pre-registrants are not actually registered until a later time, they will not receive a voter registration card in the usual time frame. (Def. Ex. 368 at 17-18.) Poucher’s testimony does not establish that these type of inquiries were a significant burden on the Wake CBOE, but it does suggest that at least some pre-registrants were confused about the significance of their pre-registration.
Weighing against the justifications offered by Defendants is the fact that, in many ways, pre-registration is. simpler than the current registration process. With pre-registration, an individual became eligible to pre-register on his sixteenth birthday. Without pre-registration, “eligibility to register to vote depends on age relative to Election Day; seventeen-year-olds who will turn 18 by Election Day are eligible to register;.” (PL Ex. 235 at 16.) As described by Dr. Hillygus, this connection between eligibility and Election Day creates the following, complexity, given that the date of Election Day is variable:
[A] 17-year-old with a November 8th birthday was not eligible to register in 2014, while a 17-year-old with the same birthday would be able to register in 2016. More complicated still, each municipality in the state can set its own date for the general election in off-congressional election years, creating variability across the state in the specific eligibility date in odd years.
(Id.) Due to this complexity, for some time the North Carolina SBOE decided “that the best way to resolve these inconsistencies [was] to only offer voter registration to those who are 18 and older.” (Id. at 16 n. 41.)
In sum, Defendants have offered some evidence that pre-registration created voter confusion, and Plaintiffs have offered evidence that the current system is more complicated. The tenuousness of the justification is examined with an eye for finding a pretext for racial discrimination. See, e.g„ LULAC, 999 F,2d at 870-71. But having reviewed all the evidence in the case, this court cannot find that Defendants’ proffered justifications are a tenuous pretext for racial intent. First, given the recent enactment of pre-registration, it is unlikely the General Assembly could have anticipated that pre-registration’s removal would make registration more complex. After all, Plaintiffs have provided no evidence that, prior to pre-registration’s enactment in 2009, the State struggled to register individuals once they reached the age of eligibility. A reasonable legislator could believe that whatever system registered generations of North Carolinians pri- or to 2009 would go back into place when pre-registration was removed. Second, Plaintiffs have not provided evidence that the General Assembly had statistics regarding the use of pre-registration, especially based on a racial breakdown. (Doc. 285 at 47-48 (claiming that the legislature had demographic data on SDR and early voting, but making no claim as to preregistration); Doc. 286 at 48-50 (same).) Third, because pre-registration did not tend to favor one party over another and since most pre-registrants chose to be un
Finally, the State is surely permitted to draw some lines, especially where the age of registration the State chooses is rationally tied to when individuals actually will be eligible to vote in the next general election. If the State does not have a non-tenuous interest in tying registration to when individuals become eligible to vote, then it is difficult to imagine any line that could legitimately be drawn. If sixteen-year-olds cannot be legitimately prohibited from registering, then why can fifteen-year-olds or fourteen-year-olds? Accordingly, while the evidence is mixed and the State’s justifications are weaker than for the other provisions, the court nevertheless cannot find that Defendants’ justifications for the repeal of pre-registration are tenuous.
⅜ ⅝ ⅜
One final consideration regarding tenuousness. The fact that the legislative bodies of a majority of States have not adopted the measures under consideration here is an indication that answers to these questions are far from clear-cut. No one has ever suggested that a legislature’s .debate over whether to adopt them would fail to reflect legitimate concerns and not involve conflicting policy considerations. If a legislature can have a good faith, legitimate debate about the wisdom of a law, then that says something about whether it can have a similar good faith dispute about its repeal.
3. Equality of Opportunity and Social and Historical Conditions
Having examined the practical impact of SL 2013-381, the Gingles factors, and other considerations in the totality of the circumstances, this court must now determine whether Plaintiffs have met the Fourth Circuit’s two-element test: (1) whether the specific election changes, individually and cumulatively, “impose' a discriminatory burden” on African Americans and Hispanics in North Carolina, such that they “have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice”; and (2) whether the “discriminatory burden” is “caused by or linked to social and historical conditions that have or currently produce' discrimination against” African Americans and Hispanics. League,
The question is not whether the voting law could be made more convenient—they virtually always can be. Rather, the question is whether the electoral system as applied treats protected classes the same as everyone else, determined by the totality of the circumstances. League,
a. Voter ID
Plaintiffs’ § 2 challenge of the photo-ID requirement with the reasonable impediment exception presents an issue of first impression. Only South Carolina has such a law, and it was upheld as non-retrogressive under § 5 by the three-judge panel in South Carolina,
Plaintiffs claim South Carolina is distinguishable because voter ID is easier to acquire in South ■Carolina. In South Carolina, voters can acquire qualifying ID “at each county’s election office ... [and] at each county’s DMV office.” South Carolina,
In North Carolina, the DMV is the exclusive provider of a free voter ID. (PI. Ex. 1044 at 142.) The DMV currently has 114 brick and mortar sites that provide drivers’ license services. (Doc. 410 at 164,168-69.) Some brick and mortar sites have limited hours, and sixteen of North Carolina’s 100 counties do not have a brick and mortar site. (Id. at 203-04; PI. Ex. 241 at 13; PI. Ex. 1044 at 143-144, 166-167.) Eleven of these counties are serviced by five DMV mobile units, which currently appear at twenty-four mobile sites. (Doc. 410 at 198-99; PI. Ex. 241 at 13.) No mobile site is serviced more than three days per month. (Doc. 410 at 204; PI. Ex. 241 at 13 n.3.) The DMV plans to increase the number of mobile sites from twenty-four -to seventy by the summer of 2016. (Doc. 410 at 211.) Although a broad number of documents are acceptable, the DMV requires voters to present two supporting documents proving the voter’s age and identity. (Def. Ex. 533 at 2 (tbl. 4).) A document establishing only the voter’s name and address, such as a HAVA document, does not qualify. (Id.) In addition, no-fee voter-ID cards do expire in North Carolina, but as a practical matter they can be used for twelve years for voters under seventy and permanently thereafter.
While at first glance it appears that brick and mortar locations are more evenly distributed among counties in South Carolina, there was no evidence of the average drive time to an ID issuing location for voters in South Carolina, a largely rural State. South Carolina may have at least two ID issuing offices in each county, but it has less than half- as many counties as North Carolina, despite being more than half the size. State Area Measurements and Internal Point Coordinates, United States Census Bureau, https://www.census. gov/geo/reference/state-area.html (last visited April 12, 2016).
Nevertheless, from January 2014 to January 2016, the DMV issued 2,139 no-fee voter IDs, (id. at 177-79; Def. Ex. 494), whereas South Carolina issued 31,156 no-fee IDs during the first two years of its ID law,
The second, and perhaps more reasonable, inference, is that fewer people need to acquire a qualifying ID in North Carolina. As noted above, even though Dr. Stewart had a unique identifier in South Carolina, he matched a higher percentage of active and inactive voters in North Carolina than he did active voters in South Carolina. (PI. Ex. 891 at 19 (tbl. 11); Def. Ex. 504 at 36 (tbl. 4).) This is true when broken down by race, and the magnitude of the difference only becomes more pronounced when the percentage of active voters matched in North Carolina is compared to the percentage of active voters matched in South Carolina, which is the more accurate comparison. (PI. Ex. 1063; Def. Ex. 504 at 36 (tbl. 4).) Most importantly, the estimate provided by Dr. Stewart, which this court finds overestimates the number of North Carolinians without acceptable photo ID, also exceeds the estimates the court ultimately relied upon in South Carolina.
It is difficult to know with any reasonable assurance how many voters still lack a valid photo ID or, among them, those who lack one due to any burden in acquiring it. However, there is little evidence that the latter is so large a group as to overwhelm election officials if those voters seek to vote under the reasonable impediment exception. For example, as shown by Dr. Thornton, of the 172,098 individuals that the SBOE contacted from Dr. Stewart’s most recent no-match list, 72.1% did not vote in the 2012 presidential election and 39.5% had never voted in any election. (Def. Ex. 511 at 18 (tbls. 6, 7).) This is likely because 33% of individuals on Dr.
Any difference in the ease of acquiring photo ID is where material distinctions between North Carolina and South Carolina end. North Carolina’s reasonable impediment exception is materially indistinguishable from South Carolina’s exception that received judicial preclearance in South Carolina,
Upon close examination, North Carolina’s reasonable impediment provision is effectively a codification of the three-judge panel’s holding in South Carolina. As noted above, a voter’s reasonable impediment declaration can only be rejected if it is false, merely denigrating to the photo-ID requirement, or obviously nonsensical. N.C. Gen. Stat. § 163-182.1B(a)(l). The law does not permit a voter’s declaration to be denied on the ground that it is not reasonable. Id. § 163-182.1B(b)(6). Only the voter’s subjective belief is relevant to the issue of reasonableness. See id. Finally, the law requires all reasonable impediment forms to, “at a minimum,” contain
Plaintiffs have failed to show that the reasonable impediment voting process deprives any group of an equality of opportunity to participate in the political process. As noted above, voters need only complete two forms as part of the reasonable impediment voting process. (Def. Ex. 546 at 3.) Most voters will have significant parts of these forms pre-populated for them, and, in any case, voters can receive as much assistance as necessary from either a person of their choosing or a poll worker. (See id. at 3; Doc. 414 at 138-39, 189, 211 (“[T]he precinct official is supposed to do everything they can to try to provide as much explanation to [the reasonable impediment voter] as possible until they do understand it.”).) Poll workers have been trained to provide assistance without inquiring into whether the voter is illiterate. (Doc. 414 at 189.) As with SDR, poll workers are trained to ensure that the declaration is complete before accepting it. (Id. at 211-12.) Moreover, although Plaintiffs failed to provide any expert testimony on the literacy level required to complete the reasonable impediment process, this court is convinced that it is no more demanding or intimidating than other voting forms. See supra Part I.D.l.e. As noted above, the first step of the reasonable impediment voting process—the provisional voting application form—must also be completed by all provisional voters, including OOP voters. (See Def. Ex. 546 (Ex.l),) In addition, all voters must complete a registration form and an ATV form. (Doc. 410 at 91-93.) To complete the ATV form, the voter must attest that the address he provided is correct and that he has not voted in the election. (PI. Ex. 1056.) As noted above, the fact that so many minority voters have completed these forms in the past undermines Plaintiffs’ argument that the reasonable impediment voting process is burdensome, especially in light of the substantial assistance that is available in completing the reasonable impediment declaration. Finally, Plaintiffs cannot claim that the alternative identification requirement of the reasonable impediment exception (HAVA document, registration card, or SSN4 and date of birth) is impermissibly burdensome because SDR, which plaintiffs claim is necessary to avoid a § 2 violation, required voters to present at least a HAVA document.
Plaintiffs have also failed to show that the reasonable impediment challenge process is likely to be applied in an arbitrary or discriminatory manner. The challenge process is designed to place every burden on the challenger and give every benefit to the voter. See supra Part I.D.l.e. The challenger must make a public records request for the declaration he seeks to challenge, (Def. Ex. 547 at 1.), and complete and submit the challenge on the SBOE’s Evi-dentiary Challenge form “no later than 5:00 P.M: on the third business day following the election,” N.C. Gen. Stat. § 163-182.1B(b)(2); (Def. Ex. 547 at 7). The challenge form must be notarized, and fraudulently or falsely completing it is a felony. (Def. Ex. 547 at 7.) At a hearing, the scope of the challenge is “strictly limited” to the facts the challenger alleged in the writtén challenge form, (id.), and the challenger bears the burden of proof and persuasion,
Moreover, Plaintiffs have failed to show that CBOEs are likely to misapply the challenge process. The SBOE has provided clear guidance to CBOE’s on the procedures to be followed. (See Def. Ex. 547.) CBOEs have been trained on the meaning of “clear and convincing evidence” and “in the light most favorable to the voter,” (Def. Ex. 551 at 55), and county attorneys will be present at hearings to assist the CBOE in understanding and properly applying the legal standards, (Def. Ex. 547 at 4). All Evidentiary Challenge forms must be forwarded to the SBOE. (Id at 3.) The SBOE plans to use its legal team to provide oversight of ■ challenges and ensure CBOEs are following proper procedure. (Doc. 414 at 215-16.) The SBOE also has the ability to. exercise its supervisory authority over CBOEs to correct any misapplication that may occur. (Doc. 414 at 138, 216-17.)
, Plaintiffs have also failed to show that giving reasonable impediment declarants a provisional ballot is likely to impose a material burden on the right to vote. This issue was addressed by the panel in South Carolina, which observed:.
[T]he word “provisional”, is a bit of a misnomer in this instance. [Provisional ballots cast due to a reasonable impediment] must be counted and will be counted, at least so long as the voter does not lie when he or she fills out and signs the reasonable impediment affidavit. Counting the reasonable impediment ballots will not differ in substance from the counting of absentee 'ballots. When the provisional ballot process operates in this way, casting a provisional ballot instead of a régular ballot does not burden the right to vote.
Plaintiffs have also failed to show that the State’s education and training efforts have been insufficient. The State has engaged in a substantial multi-media voter education program. See supra Part I.D.l.b. Of central significance, after the fall elections in November 2015, the SBOE sent every individual who received a prior mailing describing the need for voter ID (315,-755 voters)—except those who reported they already possessed acceptable photo ID and those for whom prior mailings were returned as undeliverable—an additional mailing describing the reasonable
Finally, Plaintiffs’ reliance on evidence that voter ID laws depress turnout is misplaced. Not only did Kansas and Tennessee dispute the results of a study reporting a two percent decrease after they adopted their ID laws, (Doc. 407 at 75-77), other reliable evidence demonstrated that Georgia’s ID law depressed turnout by 0.4%, (Doc. 410'at 220). Most importantly, however, noñé of these States had a reasonable impediment exception; South Carolina is the only State to do so, and no data were presented as to its effect on turnout.
In sum, this court reaches the same conclusion as the court in South Carolina: North Carolina’s voter ID law with the reasonable impediment exception does not impose “a material burden” on the right to vote of any group' “for purposes of the Voting Rights Act.” South Carolina,
b. Early Voting
Session Law 2013-381 reduced the number of early-voting days but kept the same number of early-voting hours. The General Assembly intended this change to make early-voting locations more numerous and evenly distributed, and the evidence shows the law achieved these legitimate ends. In 2014, with the ten-day voting schedule in place, there were more voting sites and more high convenience night and weekend hours.
Further, Plaintiffs have failed to link the claimed effect of the removal of the first seven days of early voting to social and historical conditions. While Plaintiffs established that African Americans at times disproportionately used the removed seven days,
Accordingly, for reasons similar to those articulated in Florida,
c. SDR
As noted above, North Carolina’s twenty-five day cut-off for registration existed both before and after SL 2013-381. When SDR existed, the only way an individual could register after the cutoff and vote in the upcoming election was through SDR. After SL 2013-381, all registrations must be submitted by the cut-off.
Plaintiffs established that African Americans disproportionately used SDR.
Other than disproportionate use, the best facts for Plaintiffs were that African Americans are more likely to move between counties, and thus more likely to need -to re-register, and that African Americans are more likely to end up in the incomplete registration queue.
It is easy to see a connection between certain reasons for ending up in the incomplete registration queue and literacy.
The remaining ways for voters to register with assistance are sufficient to provide African Americans with an equal opportunity to participate in the political process. gee Husted,
The ease of registration in North Carolina is perhaps why African American registration rates are so robust. Plaintiffs wish to attribute this to SDR, but the facts do not bear this out. For example, by the court’s calculation, even when SDR registrations are not included African American registration rates nearly approximated white registration rates in 2008 and .exceeded them in 2010 and .2012. (Pl. Ex. 40 at 35 (Ex. 14); Pl. Ex 684 (tbl. 15).)
Registration without SDR
African American turnout in general elections also exceeded white turnout in 2008 and 2012 even when all SDR registrants are considered voters but excluded from the turnout figures. (PL Ex. 40 at 35 (Ex. 14); PI. Ex. 242 at 161 (App’x U).)
Voting without SDR during general elections
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This does not support Plaintiffs’ claims that SDR was necessary for African Americans to have equal opportunity to participate in the electoral process, but rather is strong evidence that the rise in African American participation is attributable to other factors—including President Obama’s candidacy and North Carolina’s rising role as a battleground State.
Further, the proportion of African American registrants during the 2014 early-voting period was virtually identical to the proportion of African American registered voters as of 2014. (Def. Ex. 309 at 76.) This is perhaps why Plaintiffs were not able to show that African Americans are habituated to SDR—the SDR data suggest they are much more adaptable than Plaintiffs claim.
Accordingly, while the inter-county mover and incomplete queue evidence favor Plaintiffs, they fail to carry Plaintiffs’ burden. The evidence seriously undermines Plaintiffs’ argument that SDR is responsible for African Americans’ lead over all races in registration since 2008.
Plaintiffs further attempted to demonstrate a burden from the removal of SDR and link it to social and historical conditions through the use of several fact witnesses. Plaintiffs’ witnesses were variously African American, white, Hispanic, and “youth.” Yet their testimony was mixed. For example, Carnell Brown (African American) who is illiterate, attempted to vote in a county in which he did not reside, rather than his county of residence. (Pl. 680 at 14-15.) SDR would not have permit
Most of the other voters testifying at trial had moved into a new county in North Carolina without updating their voter registrations. But the race of these voters played no role in their failure to vote.
For example, two of the witnesses are enrolled in higher education programs. William Kittrell, a college student and aspiring English teacher, was unable to vote in 2014 because when he moved from Vance County to Guilford County for college, he never updated his voter registration. (Doc. 330 at 37-42.) He had been living in Guilford County for a year before the election, but had never availed himself of the opportunity to update his registration during that time. (Id. at 41-42.) Qui-sha Mallette is a student at the University of North Carolina School of Law. (PI. Ex. 792 at 7.) She has lived in various parts of the United States throughout her life. (Id. at 8-10.) Before starting law school, she worked for AmeriCorps’ Literacy Council, managing a youth academic support program. (Id. at 10.) She may have voted absentee by mail in the past. (Id. at 11.) She testified that, when she moved from Wake County to Orange County, she had attempted to update her voter registration through the United States Postal Service website, but she had not successfully done, so. (Id. at 16-18.)
Plaintiffs also presented the testimony of two African American service personnel. Dale Hicks, a former sergeant in the United States Marine Corps, lived in New York City before joining the Marines as a data technician. (Doc. 329 at 69-70.) Since leaving the Marines and moving to Raleigh, North Carolina, he has been working as an IT professional. (Id. at 70.) He tried to vote early in 2014 but had to cast a provisional ballot because he had not updated his registration since moving from Onslow County. (Id. at 71-72.) He thereafter registered to vote in Wake County, where he resides. (Id. at 75.) Alexander Ealy, a current sergeant in the United States Army, grew up in Tennessee and moved to New York when he turned twenty-one. (PI. Ex. 713 at 6.) When he registered to vote in North Carolina, there was an issue verifying his address because he did not denote his separate mailing and physical addresses, as the form requires when applicable. (Id. at 23-24, 32-37.) The United States Army and the United States Postal Service appear to rely on these addresses being correct in order for servicemen to receive their mail correctly.
Nadia Cohen is an Hispanic high school student from Cary, North Carolina; at the time of trial she was enrolled to start college at the University of North Carolina at Chapel Hill in fall 2015. (Doc. 331 at 161-63.) She turned eighteen in time to qualify to vote in the 2014 general election, but she failed to register in time. (Id. at 163.) In fact, when she testified at trial, she still had not registered to vote. (Id. at 169.) When Plaintiffs’ counsel asked her why not, she answered:
Well, first, I figured I would register when I get to Chapel Hill since I am moving there, but, honestly, I am a little discouraged. It’s not something that I’m, like, running to go do. If I wasn’t raised to believe that voting was so important, I probably wouldn’t. It’s just—it just made things a lot more difficult for me than it has to be.
(Id.) Ms. Cohen learned that she had failed to register in time for the upcoming election from her father, who had looked up the election rules online. (Id. at 166-67.) When asked why she had not registered earlier, on her own, she responded,
I didn’t know there was a registration deadline. I didn’t know I could do—I couldn’t do same-day registration. Andit’s not that -I don’t, like, pay attention to the news , or anything. It is just my two main sources of information, which are my parents and my school, either didn’t know or didn’t tell me, or at least not with enough time,
(Id. at 168.) When asked if she had done any research into registration deadlines at all before the 2014 general election, she testified:
No. It’s not something that particularly interests me. I just assumed that. it would be as it had been for. my .older brother and my older sister and my parents, you know, a convenient location, you know, I wouldn’t have to go out of my way. My parents registered when we moved to North Carolina and they got their North Carolina driver’s license. My brother registered in school. No one had to go out of their way to register, and I thought that, you know, it would be the same for me.
(Id. at 168-69.) Of course, because Ms, Cohen would have been eighteen by the time of the 2014 November general election, she could have registered and voted during the primary earlier that year. N.C. Gen. Stat. § 163-59. But her father never told her that. (Doc. 331 at 172.) Ultimately, Ms. Cohen did not vote anytime during 2014 because, in her words, “honestly, voting is not my top priority throughout the year. I’m busy with high school and work and other after-school activities. It is not— it is not something that I feel like I need to always be invested in order to know.” (Id. at 173.)
These witnesses illustrate the type of testimony received at trial. Mr. Brown tried to vote in the wrong county, an issue that no prior or current election mechanism'in North Carolina could have solved. The college and law school students had all the opportunity needed to update their registrations but failed to do so. In any case, they are not uneducated or socioeconomically disadvantaged. The military servicemen are not originally from North Carolina and could not have been affected by any of the State’s historical discrimination; moreover, it was clear from their testimony that they had significant opportunity to update their registrations. Finally, as a capable individual accepted at one of the top public universities in the country, Ms. Cohen makes clear that, for some, given the myriad of options available in the modern age, failure to register and vote is more a reflection of motivation than ability. (See Doc. 331 at 173.) Historical discrimination is an unpersuasive basis for claiming that any of these people needed or wanted to use SDR. When proving discrimination, plaintiffs need not rely on statistical evidence alone. They may present witnesses who testify about “their personal experiences” in order to bring “the cold numbers convincingly to life.” Int’l Bhd. of Teamsters v. United States,
Finally, the trial evidence showed that the State’s interest in removing SDR was legitimate and certainly not tenuous. The State legitimately aimed to employ an election system that provided meaningful opportunity for election officials to verify residency through the statutory process, and the repeal of SDR served this purpose. SDR’s proximity to Election Day, inside the twenty-five day registration cut-off, simply did not provide a sufficient number of days for the mail verification process to work, and thus effectively nullified North Carolina’s pre-existing statutory process for verifying a voter’s residence. As a result, in 2012 at least 2,361 voters had their ballots counted although they later failed mail verification and were declared ineligible voters. That makes this case quite different from Husted,
For these reasons, this court cannot conclude that the removal .of SDR leaves North Carolina with an election system .that provides an unequal opportunity for African Americans to register and vote compared to other groups. There was. no showing that SDR increases turnout generally or for African Americans; .only disproportionate use. Instead, other, larger influences were more substantially at play. Plaintiffs also did not show that African American turnout in 2014 would have been any higher had SDR been in place.- As such, this court is left with the 2014 data that show that, without SDR, African Americans participated at a higher rate in 2014 than they did in the last comparable 2010 race with SDR in place. On this record, Plaintiffs have failed to prove that by returning North Carolina’s registration system to that of 2007—which had never been claimed to discriminate against African Americans or any minority group, and which is more generous than that of many States—the General Assembly imposed a discriminatory burden on African Americans or any other group.
d. OOP Voting
For approximately 120 years, North Carolina has assigned each registered voter a precinct in which to cast a ballot. OOP voting changed that, however, permitting voters to cast a provisional ballot at any precinct in the voter’s county of residence. Even when OOP voting was available, a voter could east a full ballot only in his correct precinct on Election Day. If an OOP provisional ballot was used, only votes for races that would have appeared on the ballot in the voter’s correct precinct ■were counted. This had the practical effect of disenfranchising OOP voters on- some down-ballot races. After SL 2013-381, voters who do not fall within the unreported mover exception are only permitted to vote at their assigned precinct on Election Day.
Adoption of OOP was politically motivated to the extent the Democratically-controlled legislature made OOP retroactive to legislatively overrule the North Carolina Supreme Court’s decision in James and to secure electoral victory for Democratic candidates in the 2004 election. In doing so, proponents inserted into the amendment a statement of retroactive legislative intent to aid African Americans. Yet, there was never a claim that North Carolina was violating § 2 of the VRA or any other law prior to OOP’s enactment. In fact, the majority of States do not offer it.
Plaintiffs demonstrated that African Americans disproportionately used OOP voting when it was in place.
Plaintiffs, however, failed to show that voters’ assigned precincts are not on average the closest precinct to their residence or work. Instead, Plaintiffs presented evidence on the average distance between the precinct at which OOP voters attempted to cast a provisional ballot and those voters’ assigned precinct. (Pl. Ex. 241 at 43.) This study showed that in Mecklenburg and Wake Counties in 2014, this distance was approximately six miles. (Id.) Defendants rebutted this study with evidence that a larger percentage of African Americans cast a. provisional ballot within five miles of their assigned precinct than whites. (Def. Ex. 212A at 18-19 & tbl. 23.) In any event, as recognized in James, a benefit of the precinct-based system is that it generally “puts polling places in closer proximity to voter residences,”
To be sure, OOP voting was not significant to the parity in political participation achieved by African Americans since 2008. In 2008, African American turnout exceeded white turnout by 5.5%; in 2010, white turnout exceeded African American turnout by 3.4%; and in 2012, African American turnout exceeded white turnout by 6.8%. (Pl. Ex. 242 at 161 (App’x U).) By the court’s estimate, if OOP ballots had not been counted in those years, African American turnout would have exceeded white turnout by 5.4% in 2008; white turnout would have exceeded African American turnout by 3.6% in 2010; and African American turnout would have exceeded white turnout by 6.8% in 2012.
In League, the Fourth Circuit stated that “what matters for purposes of Section 2 is not how many minority voters are being denied equal electoral opportunities but simply that ‘any’ minority voter is being denied equal electoral opportunities.”
Although just one factor under the totality of the circumstances, the data suggest that African Americans have an equal opportunity to participate in the electoral process without OOP. In addition, the relatively small number of individuals who used' OOP have many remaining convenient alternatives: voting during any of the ten days of early voting where they need not vote at their assigned precinct (they can vote at any early-voting center, the number of which SL 2013-381 increased), voting at their assigned precinct on Election Day, or casting an absentee ballot by mail during the forty-five to sixty days available (depending on the election). In addition, a primary benefit of the precinct-based system, as recognized in James, is that it generally places voting locations closer to voters—a fact that Plaintiffs failed to demonstrate was not true.
Beyond statistical data, Plaintiffs presented the testimony of several voters who voted in the wrong precinct in 2014. As with SDR, these witnesses did not provide support for Plaintiffs’ claims.
Gwendolyn Farrington, a middle-aged African American woman, voted a provisional ballot in the wrong precinct. She did not vote in the early-voting period, citing fatigue from her jobs, where she works six days a week. (Doc. 329 at 59.) Yet, she chose not to vote on her day off, a Sunday, because she wanted to spend it resting. (Id. 58-59.) She chose not to vote by mail because she prefers to vote in person. (Id. at 55.) On Election Day 2014, instead of going to her assigned polling location, which she knew, she went to the polling location closest to her work because she did not think she could have made it to her assigned polling location because she chose to provide transportation to her adult children instead. (Id. at 59-60, 66-67.) In addition, her assigned precinct was not as
Terrilin Cunningham moved to North Carolina in 2012; she was born and raised in Missouri, and then had lived in both Baltimore and Pittsburgh before moving to North Carolina. (Doc. 330 at 164.) When Ms. Cunningham lived in Missouri and Pennsylvania, she had to vote in her assigned precinct on Election Day, as those States do not offer OOP or early voting. (Id. at 182-83.) In 2012, she voted early on a Sunday in North Carolina; she was surprised that North Carolina offered Sunday voting because she had never heard of such a thing before. (Id. at 169-71.) In 2014, Ms. Cunningham had intended to vote early again, but she missed her chance because of work and various unexpected doctors’ appointments.
Lue Alice Abercrombie, a disabled African American woman, moved to North Carolina from Connecticut twenty years ago.
Michael Owens, an African American man in his fifties, was unable to vote on Election Day 2014. (Doc. 334 at 148, 160, 163-56.) For a temporary period including Election Day, he was without a vehicle. (Id. at 151-52.) Mr. Owens’ former employer had closed down and, because he lost employment, his vehicle was repossessed in May 2014 when he ran out of savings. (Id. at 149-51.) Later, Mr. Owens found a new job in Lumberton (in Robeson County). (Id. at 150-51.) He lived and worked in Lumberton during the workweek, but returned to Shannon (also in Robeson County) on the weekends to be with his girlfriend and child. (Id. at 151—
Plaintiffs only presented two witness who claimed their correct precinct was further from their residence than the precinct in which they. cast provisional ballots in 2014, Timothy Washington and his wife, Yvonne Washington. The couple’s correct precinct was 1.3 miles from their home, while the incorrect precinct at which they cast a provisional ballot in 2014 was 0,6 miles from their home. (PL Ex. 797 at 43-44.) Both have disabilities that make it difficult for them to walk and rely on others for transportation. (PI. Ex. 679 at 39-40.) Ms. Washington is a cancer surviv- or with asthma and Mr. Washington has suffered from hip disabilities since birth that require him to use crutches. (PI. Ex. 797 at 8, 21.) Ms. Washington testified that she will never be able to walk to her correct precinct. (PI. Ex. 679 at 26.) While OOP would make their burden less, the truth is that even walking to the nearest polling location on Election Day in 2014 (still 0.6 miles) was itself a great difficulty for the couple. (PI. Ex. 797 at 21-22.) In fact, they were not able to make it to the closest precinct without stopping to rest. (Id.) Their situation most persuasively demonstrates a need for a voting mechanism than can be done from home, such as absentee mail voting. If, however, they find mail voting to be inaccessible or unattractive, Ms, Washington testified that; although she did not seek it out in 2014, her church would likely be able to provide the couple with a ride to their correct polling place. (PI. Ex. 679 at 29-30.) In short, walking to any precinct or polling location does not appear to be a long-term solution for the couple. In addition, the link between their difficulties and social and historical conditions was weak. Mr. Washington’s hip disability arose from when his mother “fell down the steps when he was born, and she was carrying him.” (Id. at ,8.) Moreover, Ms. Washington only moved to North Carolina five years ago from Virginia, where she voted five different times, and always in her correct precinct, since Virginia does not permit OOP voting. (Id. at 33, 36-37.)
For these reasons, having considered the totality of the circumstances and in light of the State’s demonstrated substantial interest in its precinct-based system as articulated by the Supreme Court in James, this court cannot conclude that North Carolina’s current electoral system without OOP presents African Americans with an unequal opportunity to vote as compared to other voters.
e. Pre-registration
From 2009 to 2013, sixteen-year-olds were permitted to preregister. Even after SL 2013-38.1, seventeen-year-olds who will be eighteen by the time of the general election are still able to register starting sixty days before the related primary. N.C. Gen. Stat. § 163-59. Plaintiffs argue that the elimination of pre-registration disparately impacts African American and Hispanic youth and imposes a severe burden on all youth. (Doc. 346 at 96-98.)
Plaintiffs demonstrated that pre-regis-tration increases youth turnout. In addition, they demonstrated that African
In addition, Plaintiffs’ own evidence demonstrated that the benefits of pre-reg-istration are race-neutral. In fact, the studies of Plaintiffs’ own expert, Dr. Hillygus, found pre-registration to be “equally effective for various demographic groups, including white versus minorities.” (M. at 24.) It may be tempting to reason that if pre-registration increases turnout and African Americans disproportionately used it, then African Americans disproportionately benefited from it. However, Dr. Hillygus’s own study rebuts this inference. Dr. Hilly-gus did not just study whether those who pre-register are more likely to vote.
Finally, the evidence shows that preregistration did not clearly benefit either Democrats or Republicans. (PI. Ex. 235 at 14.) In some years, Republicans had more pre-registrants than Democrats, and in other years the reverse was true. (Id.) In all years, however, the number of unaffiliated pre-registrants was greatest. (Id.)
Accordingly, having considered the totality of the circumstances, Plaintiffs have failed to establish that the removal of preregistration imposes a discriminatory burden on African Americans or any other racial group.
f. Cumulative Effect
Finally, the court considers the cumulative impact of the challenged provisions,
Plaintiffs argue that voters who “manage to register” with the elimination of SDR “may now find themselves excluded because of the photo ID requirement.” (Doc. 419 at 55.) This ignores the reasonable impediment exception, as it will be applied. For all the reasons noted above, the voter-ID requirement, with a two-year roll out, free ID, and the reasonable impediment exception, does not impose a material burden on minorities’ right to vote. There is no evidence that the current photo-ID requirement will depress turnout or interact with other challenged provisions. Indeed, the United States abandoned this claim.
In addition, the Supreme Court’s stay of the re-instatement of SDR and OOP voting presents this court with a unique set of data not ordinarily available in such cases. Because the 2014 elections were conducted under SL 2013-381, the 2014 data permit the court to see the actual—not merely estimated—cumulative effect of the removal of all of the challenged provisions under current election law. As detailed above, those data show that minority North Caro-linians not only did not backslide under the new law, but rather continued to increase their participation. African Americans continue to hold a commanding lead over whites in registration rates, and their turnout rates continue to increase over comparable elections. This is powerful evidence of the cumulative effect of the law, see Purcell,
The early-voting schedule provides in substance an equivalent to, if not an actual improvement over, the former schedule. North Carolina voters' still have eleven days to vote in person: ten days of early voting, at more convenient hours, and Election Day. They may also vote by absentee ballot from forty-five to up to sixty days before an election (depending upon the election).
Even without SDR, African Americans have substantial opportunities to register to vote, as demonstrated by their growing lead over whites in registration rates.
Further, the evidence showed that the vast majority of the limited number of individuals who voted OQP did so not because they found it difficult to use any of the many other voting options available to them, but either because it was easier (an extra convenience) or because they were inattentive to their assigned precinct (which appears on their voter registration card). Under current law, former OOP voters may east ballots in their correct precinct on Election Day, outside their assigned precinct at any early-voting site during any of the ten days of early voting, from home using a mail-in absentee ballot, and at their old or new precinct on Election Day if they are an unreported mover within the county.
Finally, those who will be eighteen-years-old by Election Day may still register when seventeen-years-old. North Carolina even permits seventeen-year-olds to register sixty days in advance of, and vote in, the primary for that general election. The registration may be accomplished in any of the myriad of ways noted above, and forms remain available at all public high schools, public libraries, CBOEs, and on-line, in addition to many other places.
As a result, the court finds that the cumulative effect of the provisions of SL-2013-381 and SL 2015-103 do not impose a discriminatory burden on African Americans or any other group.
4. Discriminatory Result: Conclusion
Having applied the two-element test from the Fourth Circuit and considered the totality of the circumstances through an “intensely local” analysis, the court finds that there has been no violation of § 2 of the VRA. This court has been careful not to require Plaintiffs to show that African Americans “cannot register or vote under any circumstance” or that voting mechanisms are “practically unavailable” in order to establish a § 2 violation. League,
Rather than establish a § 2 violation, the evidence at this court’s January trial established that North Carolina’s voter-ID law with a reasonable impediment exception will not impose a material burden on minority voters or deprive them of an equal opportunity to participate in the political process. In addition, the evidence from this court’s July trial established that the many convenient registration and voting mechanisms that remain under SL 2013-381 provide African Americans an equal opportunity to participate in the political process. As stated above, there are simply very many easy ways for North Carolinians to register and vote under SL 2013-381. In truth, North Carolina’s registration and voting options were quite generous prior to SL 2013-381—Plaintiffs
That said, a State is not entitled to “make changes for the purpose of curtailing black voting” simply because “blacks register and vote more frequently than whites.” Frank,
Moreover, the data from when the removed mechanisms were in place further bolster the reliability of the 2014 results. As shown above, Plaintiffs were unable to sustain their claim that the removed mechanisms were responsible for the recent parity (much less lead) in political participation-achieved by African Americans. Instead, there was strong evidence that other factors were more substantially at play, such as President Obama’s candidacy and North Carolina’s emergence as a battleground State. In short, the data from when the removed mechanisms were in place suggest that African Americans did not need the mechanisms to have an' equal opportunity, and the 2014 data confirm as much. '
Further, this .court accepts that many variables feed into turnout and registration data. However, despite having the ability to do so, Plaintiffs did not perform the analysis necessary to separate out the causal effect of various factors. Plaintiffs did not do this analysis for the years leading up to SL 2013-381, nor did they provide this court with analysis of what the 2014 data would have been with the removed mechanisms in place. This decision may have been strategic, as the available evidence suggests that the removed mechanisms were not responsible for the parity in political participation achieved by African Americans. Nevertheless, Plaintiffs bear the burden of proof in this case, and Defendants cannot be blamed for this absence.
For these reasons, Plaintiffs have failed to show that SL 2013-381 provides African Americans with “less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice,” 52 U.S.C. § 10301(b), and thus their § 2 claim must fail.
5. Discriminatory Intent
Plaintiffs argue that they can prove a § 2 claim through either the Gin-gles factors, traditional discriminatory intent law, or both. (Doc. 346 at 130-31.) The court has already determined that the Gin-gles factors as a whole do not favor the Plaintiffs. The court’s conclusion regarding those factors would be similar here in the discriminatory intent context, even when considered in combination with the traditional intent principles. Therefore, the court turns to the traditional law of discriminatory intent, developed primarily in the equal-protection context.
Discriminatory purpose “implies more than intent as volition or intent as awareness of consequences. It implies that the decisionmaker, in this case a state legislature, selected or reaffirmed a particular course of action at léast in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.” Pers. Adm’r of Massachusetts v. Feeney,
there is an element of causation that is a necessary part of plaintiffs showing, especially when plaintiff is trying to uncover the motivation of a multi-member de-cisionmaking body, such as a zoning board. While a plaintiff is not required to prove that “the challenged action rested solely on racially discriminatory purposes,” proof that racial discrimination was a motivating factor would not end the matter. Such proof merely shifts the burden to the decisionmaking body to demonstrate that “the same decision would have resulted even had the impermissible purpose not been considered.”
Sylvia Dev. Corp v. Calvert Cty.,
According to the Supreme Court, “Determining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.” Vill. of Arlington Heights v. Metro. Hous. Dev. Corp.,
The first factor to be considered is whether the “impact of the official action ... ‘bears more heavily on one race than another.’ ” Arlington Heights,
With regard to the removed voting mechanisms, Plaintiffs point to their strongest fact: African Americans disproportionately used them. But, for the reasons explained above, this does not mean that the impact of current law bears more heavily on them. Whether a change bears more heavily depends on the options remaining. Florida,
Nevertheless, Plaintiffs claim the legislature was aware of certain disparities in the use of the removed mechanisms and that this evidences discriminatory intent. Specifically, Plaintiffs claim that the General Assembly was aware that African Americans disproportionately used early voting, SDR, and OOP and lacked a qualifying photo ID.
Plaintiffs’ exhibits demonstrate that in January 2012, legislative research staffer, Erika Churchill, requested from the SBOE “a breakdown of the 2008 voter turnout, by race (white and black) and type of vote (early and election day).” (PI. Ex. 437 at 3.) The SBOE appears to have provided the requested data to Ms. Churchill at the end of January. (Id. at 1-2.) In February 2012, she requested the same data for 2010. (Id. at 1.) She also requested “similar information ... on provisional ballots [for] 2008 and 2010.” (Id.) Plaintiffs’ exhibits do not clearly indicate whether the SBOE ever provided the data from Ms. Churchill’s February requests. (See PI. Ex. 436; PL Ex. 437; PI. Ex. 459.) Instead, the last email in the email chain provided by Plaintiffs is from Ms. Churchill to the SBOE clarifying her request on provisional ballot data. (PI. Ex. 436.) Further, even though Plaintiffs’ exhibits indicate that the SBOE provided the information from the January request, the exhibits cited in Plaintiffs proposed findings of fact and conclusions of law do not provide this data. (See Doc. 346 at 59.) Therefore, among the thousands of pages of material the parties have submitted to the court, it is difficult to evaluate the character of any data that may have been received and transmitted to legislators as a result of Ms. Churchill’s requests.
Plaintiffs’ exhibits also indicate that on March 5, 2013, Representative Harry Warren and various other sponsors of HB
While this court accepts that Ms. Churchill and Representative Warren requested demographic data on ID possession, “one-stop voters,” and “provisional voters,” these requests are not necessarily as suspect as Plaintiffs claim. First, at the time of Representative Warren’s request on March 5, 2013, legislators would have been preparing for the first public hearing on voter ID on March 12, 2013. (See PI. Ex, 127.) As noted herein, opponents frequently challenge voter-ID bills on the basis of racial disparities in ID possession. Any responsible legislator would need to know the disparities in order to account for such challenges. In fact, during the preliminary injunction stage of this case, the United States would not tell this court whether it would have been better or worse for the State not to have requested demographic data. (Doc. 166 at 219-20.) Second, given that North Carolina was subject to preclearance under § 5 when the demographic data requests were made, legislators would have needed to know the racial impact of the voting changes in order to evaluate whether they were even feasible. In other words, when § 5 applied to North Carolina, evaluating racial impact was a prerequisite to evaluating the likelihood that any voting change would be precleared by the Attorney General. Accordingly, while Plaintiffs seek the inference that legislators requested demographic information because they sought to discriminate against African Americans, alternative explanations are considerably more persuasive.
Next, Plaintiffs presented evidence that Director Strach emailed some data to Representative Lewis, one of the bill’s House sponsors, on July 25, the day of the House concurrence vote. (PI. Ex. 198.) This data primarily consisted of the verification rates for SDR in the 2010 and 2012 election and information about the types of IDs presented by same-day registrants. (Id. at 3-20.) It' also included a spreadsheet that contained race data for individual same-day registrants and whether those registrants were verified. (See id. at 14, 16.) The report did not provide aggregate percentages for SDR use by race. (See id.) In addition, given that the report was not provided until the day of the House concurrence vote, it is not possible that any disparities that could be inferred from the individual voter data provided by Ms. Strach were used in drafting HB 589.
' Next, Senator Stein provided evidence of disproportionate use during Senate debate of HB 589.' Specifically, Senator Stein stated in debate that “[mjinorities take advantage ... of same day registration ... more than the general population.” (PI. Ex. 550 at 34-35.) He also shared graphs indicating that 34% of the nearly 100,000 individuals who used SDR in 2012 were
Finally, Plaintiffs argue that the legislature must have been aware of OOP’s disproportionate use given that the legislature that enacted OOP- made the finding that “of those registered voters who happened to vote provisional ballots outside their resident precincts on the day of the November 2004 General Election, a disproportionately high percentage were African American.” 2005 N.C. Sess. Law 2, § 1. While it can be assumed that the General Assembly was aware of its prior findings, it does not follow that any future decision to reverse course evidences racial motivation, especially given the substantial interests served by a precinct-based system endorsed by the Supreme Court in James.
Plaintiffs also argue; that the foreseeable effect of the photo-ID requirement of SL 2013-381 is. further evidence of a discriminatory intent that infects the other challenged provisions.
As indicated above, there are legitimate non-discriminatory reasons to have made these requests. In addition, the type of disparity indicated by Plaintiffs’ data has existed in most cases where a state’s ID scheme has been challenged.
Moreover, during the March 2013 hearings on the initial version of the voter-ID requirement, the legislature received the testimony of two witnesses who supported the need for a photo-ID requirement. One was Hans von Spakovsky, a senior legal fellow at the Heritage Foundation who served in the U.S. Department of Justice for four years enforcing voting rights laws, served two years on the Federal Election Commission, and was a consulting expert to the Carter-Baker Report. (Def. Ex. 506 at 40.) While conceding there was no “massive” voter fraud, he urged that the “potential for abuse exists,” noted instances of prior voter fraud, cited polls “across ethnic and racial lines” showing support for voter photo ID, and testified that claims of burdens imposed on voters were substantially overstated. (See id. at 39, and attached Statement at 2-5.) He claimed that early voter-ID bills had received bipartisan support in Kansas and Rhode Island, (id. at
Francis De Luca, president of the Civi-tas Institute in North Carolina, and who holds a master’s degree in political science, provided similar testimony during the March 2013 hearings. (Def. Ex. 507 at 14.) Mr. De Luca claimed that changes in American society had made voting without a photo-ID requirement insecure. (Id. at 15.) He said that the “ability of poll workers to serve as an effective check on voter impersonation” has been “rendered obsolete” by increases in early voting and “the increased urbanization and mobility of the population.” (Id.) North Carolina, he further noted, is no longer a rural state, and voters are considerably less likely to vote in their home precincts than in the past. (Id.) He also observed that poll workers do not have access to voters’ signatures and, in any case, are not handwriting experts. (Id. at 17.)
Mr. De Luca further provided polling data indicating that majorities of voters wanted an ID requirement. (Id. at 18-19.) He cited polls showing: “2 percent or less of registered voters ... lack a government-issued photo ID”; two-thirds of registered voters support a photo-ID requirement; 70% “of all adults, not just of registered voters,” support a photo-ID requirement; three out of four voters responded that “requiring á photo ID would increase the likelihood of them voting”; and, “when asked to describe in their own words what would make elections more secure, 47 percent of voters volunteered that voter ID would make- elections more secure.” (Id.) Finally, Mr. De Luca claimed that voter turnout was higher in Georgia in 2012 than in North Carolina, even though Georgia had a photo-ID requirement in place and North Carolina did not. (Id at 21.)
Plaintiffs rely on the opinions and studies of Dr. Lichtman, offered as an expert in American political history, electoral analysis, and historical and quantitative methodology. Dr. Lichtman was offered to show that SL 2013-381 was passed with intent to discriminate against African Americans. This court does not credit Dr. Lichtman’s opinions for several reasons. First, although Plaintiffs argued otherwise, Dr. Lichtman’s ultimate opinions on legislative intent, like those of Plaintiffs’ other two experts on legislative intent, Drs. Steven Lawson
The court doubts seriously that this is the proper role for expert testimony. “[0]pinion testimony that states a legal standard or draws a legal conclusion by applying law to the facts is generally inadmissible.” United States v. McIver,
. Second, and independently, the court disregards Dr. Lichtman’s .opinions because his approach was single-minded and purposefully excluded evidence that contradicted his conclusions. By way of example, Dr. Lichtman did not include in his report, ■ nor did he find relevant during trial, the fact that North Carolina had a two-and-a-half-year roll out of the photo-ID requirement, which was plainly designed to make it as simple as possible for citizens to comply with the requirement. In fact, to the best of Dr. Kousser’s knowledge, North Carolina had “the longest roll-out period of any state that has enacted a photo-ID” requirement, of which there were many in 2012. (Doc. 330 at 92 (Dr. Kousser: “I looked at other states, and they were required quickly. They didn’t have an intervening election before they were required to go into effect.”); Doc. 333 at 192 (Dr. Lichtman: “I didn’t do a state-by-state comparison [of roll out periods].”); see also Def. Ex. 2 at 4-5.) In this respect, SL 2013-381 is substantially consistent with the bipartisan recommendation by former President Carter and former Secretary of State Baker that States adopt a photo-ID requirement for voting and that it be implemented with notice over time to ease the transition. Carter Baker Report, at 18-19; see Crawford,
Although quick to compare North Carolina’s law to that of other jurisdictions, Dr. Lichtman did so selectively, comparing only claimed negative aspects and omitting any positive aspect, such as the photo-ID soft roll out and voter education campaign. Similarly, he ignored the exemption in the photo-ID requirement for curbside voters, of which African Americans make up. a
Third, Dr. Lichtman refused to consider that legislators can have legitimate policy differences over these election mechanisms unrelated to'race, given historical evidence of problems with their use and implementation, such as with SDR and OOP. This is surprising given that Dr. Lichtman is himself a politician and a former Democratic candidate for the United States Senate in Maryland: (Doc. 333 at 173.)
Fourth, at trial Dr. Lichtman practiced a propensity to respond to questions not with responsive answers, but with non-responsive arguments supporting his opinions. He also demonstrated a willingness to obfuscate when detail became important. (E.g„ Doc. 342 at 166-70, 172-75 (Dr. Lichtman: attempting to avoid acknowledging that he lacked personal knowledge of SEIMS and the data extraction performed by a third party, Mr. David Ely, who “does the data work for [him]”).) In short, he presented as an advocate, leaving the court at a loss for where facts left off and advocacy began. The court has substantial questions about his credibility and has difficulty relying on much of his testimony.
The most substantial piece of evidence put forth by Dr. Lichtman was that certain forms of ID that were retained by SL 2013-381—DMV IDs, expired IDs for those over age seventy, U.S. passports, and veteran and military IDS—“provide relatively greater access to IDs for whites,” while the forms of ID not retained by SL 2013-381—student IDs, government employee IDs, public assistance IDs, and expired IDs—“provide relatively greater access to IDs for African Americans.” (PI. Ex. 231 at 99 (tbl. 32); PL Ex. 716, AL 6; Doc. 419 at 19-20.) There is no evidence, however, that the legislature had data showing that government employee IDs or expired IDs were disproportionately held by African Americans. It would have been reasonable for the legislature to view expired IDs as less secure, and to strike a balance by allowing them for those over seventy but not allowing them for younger individuals. After all, it is reasonable to assume that those over seventy are more likely than younger individuals to suffer from negative health that would make a DMV visit, or continued driving, more difficult. Second, although Representative Lewis sought data on the number of student IDs created and the percentage of those who were African American, the data that he was provided actually suggested that African Americans were less likely to hold college IDs.
For all of these reasons, the impact from implementation of SL 2013-381 does not significantly favor a finding of discriminatory purpose.
The next factor to be considered is whether there is “evidence of a ‘consistent pattern’ of actions by the decision-making body disparately impacting members of a particular class of persons.” Sylvia,
The next factor to be considered is the “historical background of the decision, which may take into account any history of discrimination by the decision-making body or the jurisdiction it represents.” Sylvia,
Originally, HB 589 was focused on adding a photo-ID requirement to voting. It was debated over a few weeks in the House, where it originated. There is no contention that the bill received anything but full consideration in the House. Repre
HB 589 then passed to the Senate on April 25, 2013, where it remained in the Senate Rules Committee. At the time, the Supreme Court had heard argument on a challenge to the constitutionality of the formula the VRA used to determine the “covered” jurisdictions subject to preclearance. Many of North Carolina’s counties were covered jurisdictions.
On June 25, the Supreme Court issued its decision in Shelby County, declaring the preclearance coverage formula to be unconstitutional because; among other things, it was based on historical conditions in the 1960s and failed to take into account States’ current conditions. The next day, Senator Apodaca, Republican Chairman of the Rules Committee, publicly stated, '“I think we’ll have an omnibus bill coming out” or words to the effect that the Senate would move ahead.with the “full bill.” (PI. Exs. 81, 714.) It was not until July 23, however, that an expanded bill, including the election changes challenged in this case, was released. As detailed in the factual findings above, the bill was debated over portions of the next three days and ultimately passed both houses on July 25.
Plaintiffs find racial motivation in the way the General Assembly enlarged the bill after Shelby County. In the words of their expert, Dr. Lichtman:
The H.B. 589 was substantially changed after the Shelby decision .... The timing is of crucial significance here. Because the Shelby decision relates only to race, and if, in fact, these subtractions and additions had nothing to do with race and were clearly nondiscriminatory, then the timing would not have to wait until the issuance of the Shelby decision to make these fundamental changes in H.B. 589 and, of course, without going through the same extended, exacting process.
(Doc. 333 at 106.) But this is not the only, or even the most persuasive, explanation for the enlargement’s proximity to Shelby County. Because Shelby County removed North Carolina from preclearance, it greatly altered the burden of proof calculus for North Carolina legislators considering changes to voting laws. Despite Dr. Lichtman’s characterization of the case, prior thereto legislators still would have had to demonstrate that the changes were not retrogressive—something that, while perhaps easier now with the 2014 data, assuredly would have been hotly contested by opponents. It would not have been unreasonable for the North Carolina Senate to conclude that passing the “full bill” before Shelby County was decided was simply not worth the administrative and financial cost of seeking permission from the United States. In addition, opponents of SL 2013-381 made clear at the time that North Carolina still faced being sued under § 2 of the VRA, and it would not be unreasonable for the legislature to have believed that some voting changes may survive a § 2 challenge but not one under § 5, especially given the shifted burden of proof and the uncertainty of § 2’s application to the removal of only recently-adopted voting mechanisms. On this front, it is highly relevant that proponents of the bill had received in their deliberations an analysis of other legal challenges to voter photo-ID laws—indicating that such laws passed muster with the courts. (See Def. Ex. 507 at 35-36 (De Luca Report).) Further, while Plaintiffs portray the law’s expansion from sixteen to fifty-seven pages as significant, as noted above the provisions challenged in the present lawsuit and the voter-ID requirement comprise ap
Next, Plaintiffs contend that in enacting HB 589, the General Assembly departed from the normal procedural sequence for legislation. (Doc. 346 at 136.) But their experts and fact witnesses (including Democratic members of the General Assembly) all concede that the General Assembly acted within all the procedural rules when it enacted HB 589; not a single opponent raised a point of order. (See, e.g., Doc. 330 at 94-96 (Dr. Kousser); Doc. 333 at 215-18 (Dr. Lichtman); Doc. 334 at 62-63 (Dr. Lawson); Doc. 335 at 193-94 (Sen. Stein); Doc. 336 at 37-38 (Rep. Miehaux).) According to Senator Stein, in some respects, even more process was accorded the opponents of HB 589 than was required by the Senate’s rules. (Doc. 335 at 209-10 (noting that Senate Rules Committee chairman allowed ten members of the public to speak on HB 589, even though Senate rules do not require public comment).) In every respect, the legislation was considered and passed in accordance with the procedural protections of the formal legislative rules.
. Plaintiffs further contend that, even so, the proponents nevertheless departed from general custom and practice. They argue that the bill was “rushed” through both chambers “in only three days, without sufficient time or opportunity to assess on the record the likely impact of the bill.” (Doc. 346 at 136.) Given that formal rules were followed, this claim in essence is that the process for the bill was.unusual for a bill of this magnitude. .(See Doc. 165 at 67 (Rep. Glazier: “I was shocked by it, not by, in some respects, some of the provisions, but by the—and, again, my comments on the floor that night made it clear—by the process”), 69 (“[t]he process this bill got was nothing more than what we give to a golf cart bill”); PI. Ex, 18 at 3 (Sen. Stein: describing the Senate proceedings as “irregular for a bill of this magnitude”).) The trial evidence revealed that these claims, when evaluated in the light of contemporary legislative process, are weak.
First, if these claims were true, it would have been odd for the Senate Minority Leader, Martin Nesbitt, a Democrat, to have declared at the end of the debate, as he did: “Thank you, Mr. President; Mr. President and members of the Senate, we’ve had a good and thorough debate on this bill over two days. We’ve had a sense of history. I think we’ve- reviewed the bill in great detail. I think everyone in the room knows what we’re doing now.” (PI. Ex. 550 at 90-91.) In fact, every opponent of HB 589 was given an opportunity to voice any opposition openly on the floor of each chamber to the point that their criticisms became repetitive.
Further, as noted previously, many of the amendments to HB 589 were drawn from several bills already introduced and pending in the General Assembly. See sm pra Part I.B.2. Although not disclosed in a combined bill, some of the changes reflected continuations of debates that had been ongoing for years and were far from secret. (PI. Ex. 789 at 30-31 (former member of the House, Carolyn Justice) (“[TJhese things that were eventually added in the Senate were not new surprising ideas. They were pieces of' other bills.”).) This is demonstrated by the fact that once the Senate introduced the newly-amended version of HB 589, opponents had already prepared their opposition. The very next day, Senator Stein opposed the bill presenting data, charts, and statistics pre
The evidence at trial further showed that the process known as “gut-and-amend” used to transform the voter-ID bill into the bill that became SL 2013-381 is not uncommon in the General Assembly. (Doc. 164 at 133 (Senator Blue, an opponent of the bill: acknowledging that gut- and-amend happens “quite a bit” and “too often” in the General Assembly).) Such a process occurs because the General Assembly must meet a “cut-off’ date—known as the “cross-over date”—by which a piece of legislation must be approved by one chamber lest it die for the remainder of the session. (Id. at 131-33.) Plaintiffs’ legislator-witnesses admitted that it is not uncommon for a bill to return to its originating house with significant material not originally part of the bill. (Id. at 133; Doc. 165 at 85-88 (Rep. Glazier).)
Plaintiffs focus on the three days of consideration the bill received in July 2013 as being abrupt. This, of course, ignores the extensive debate and consideration the initial voter-ID bill received in the spring, which opponents acknowledged was “excellent,” (Doc. 165. at 56-57), as well as Senator Nesbitt’s contemporaneous statements in July. As noted, the vast majority of the bill, as amended, restated prior law or dealt with issues not under contention now. The three days of debate in July focused almost exclusively on the few amendments at issue here. Moreover, trial evidence revealed other bills of similar import that moved on faster tracks. For example, in 2003, the Democratically-controlled General Assembly passed a redistricting bill in a special session that drew complaints on the floor about the way it was considered and the quick process it received. (Doc. 336 at 45-52 (Rep. Michaux); Def. Ex. 217 at 8-10 (former Rep. Carolyn Justice).) It passed nevertheless. HB 589 received considerably more debate and public comment.
Plaintiffs also argue that only one member of the House spoke in favor of HB 589. (Doc. 346 at 70.) While it is true that only Representative Lewis spoke in’ the House before the vote to concur in the Senate’s changes, several Republican senators spoke in favor of the bill both during the Senate Rules Committee meeting and during the two Senate floor sessions. (See generally Doc. 134-4.) Additionally, the initial bill was debated over several committee sessions and a floor session in March and April 2013. (See generally PI. Exs. 127-134.) It is not necessarily nefarious that no Republican in the House other than Representative Lewis rose to speak in favor of the bill when it was late in the evening, the caucus knew it had the votes to pass the bill, and the. end of the legislative session was approaching.
Next, in considering the process a bill receives, it is relevant whether any “ameliorative” amendments or amendments proposed by the bill’s opponents were- accepted. See Veasey,
The final Arlington Heights factor examines “contemporary statements by decisionmakers on the record or in minutes of their meetings.” Sylvia,
Plaintiffs argue that HB' 589’s proponents’ statements on the floor .are pretex-tual for racial animus and addressed problems that were “merely imaginable.” (Doc. 346 at 137.) As the court’s analysis of the ninth Gingles factor has shown, see supra Part II.A.2.j, the contemporaneous justifications for the changes to the early-voting schedule, and the removal of SDR, OOP,
Finally, the court has considered the cumulative evidence Plaintiffs have presented on intent under the totality of the circumstances. It is, of course, possible that an action may appear legitimate when considered in isolation but discriminatory when considered with other related decisions. Indeed, here, Plaintiffs argue that HB 589, when considered as a whole, evidences discriminatory intent to suppress voting.
Taken as a whole, SL 2013-381 enacted many changes to North Carolina’s election laws that are not challenged here, suggesting strongly that those were legitimate, non-discriminatory revisions. The State’s proffered' justifications for the combined mechanisms under review here are consistent with the larger purpose of achieving
Plaintiffs charge that—because the common theme is that SL 2013-381 removed multiple voting procedures that African Americans disproportionately used—the legislature must have meant to disenfranchise African Americans. Because the court finds that early-voting availability remains materially the same under the new law, this charge is leveled principally at SDR and OOP. In light of the whole trial record, the court cannot infer a racial motive given the consistency and legitimacy of the State’s proffered justifications, the relatively recent implementation of these mechanisms, and the evidence that voters were knowingly exploiting SDR and OOP in increasing fashion so as to undermine the benefits of traditional registration (statutory verification) and precinct management that proponents claim to protect.
In sum, there was evidence that the legislature had data on disparate use of early voting, SDR, and OOP by African Americans, although some of the data were not provided until after HB 589 was drafted and introduced; there is no evidence that the legislature had demographic data on the use of pre-registration. The legislature had data that African Americans disproportionately lacked DMV-issued IDs. But, as noted above, there were legitimate non-discriminatory reasons to request demographic data for each of the voting changes, especially prior to Shelby County when § 5 was in force. Finally, Plaintiffs presented evidence that the forms of ID not retained by HB 589 were more available to African Americans, but given the evidence that has been shown to have been before the legislature, the only form of ID for which the legislature plausibly could have inferred disproportionate use was public assistance IDs.
By contrast, the legislature offered non-tenuous justifications for the actions taken. In fact, with regard to voter ID, early voting, SDR, and OOP, this court has found the justifications offered to serve substantial State interests. In addition, in implementing the voter-ID requirement, the legislature provided for a two-year implementation to give notice and made voter IDs available for free, consistent with recommendations and the spirit of the Carter-Baker Report. In practice, this meant that the legislature attempted to soften any burden imposed by the ID requirement by giving voters over two years to acquire a free ID. Further, the bill was passed under ordinary legislative rules. All opponents were permitted to speak, and several amendments were accepted, including a significant one from Senator Stein that ameliorated the asserted burden imposed by the reduction in early-voting days. What remains under the law provides all voters with an equal and ample opportunity to participate in the political process. But even if this court had concluded that HB 589 results in an inequality of opportunity, the countervailing evidence nevertheless compels the conclusion that HB 589
Having considered the entire record as a whole, this court is not persuaded that racial discrimination was a motivating factor of HB 589. Accordingly, Plaintiffs have failed to establish that the legislature acted with discriminatory intent.
6. Additional Problems with the § 2 Results Claim
The above analysis is sufficient for the court to find that Defendants are is entitled to judgment on Plaintiffs’ § 2 results claims. However, there are two additional problems with Plaintiffs’ results claims.
At trial, the court pressed Plaintiffs as to, assuming it were to grant injunctive relief, how it would measure the quantum of relief nécessary to provide them “equal opportunity,” keeping in mind that the State has the right to propose a proportional remedy. Plaintiffs were unable to articulate a response, other than to urge return of the repealed mechanisms, or suggest that the parties may reach a settlement. (Doc. 348 at 26-35.) As the court inquired, if there is no way to know when voting rights are in parity, how does one determine whether there is a violation? (Id. at 35.)
In an apparent response to the court’s ■concern, Plaintiffs set out the following theory of § 2 in their post-trial briefing:
A Section 2 case looks forward—to “what the right to vote ought to be.” [Reno v. Bossier Parrish [Parish] Sch. Bd.,528 U.S. 320 , 334 [120 S.Ct. 866 ,145 L.Ed.2d 845 ] (2000)]. In many Section-2 cases, the standard, practice, or procedure that affords all citizens an equal opportunity to participate will be one that has never before been implemented by the jurisdiction because the jurisdiction has historically never provided minority citizens with the equal opportunity to participate and elect representatives of their choice. Put somewhat differently, Section 2 does not require that plaintiffs identify a preexisting practice within the jurisdiction to serve as a “baseline” against which the challenged practice should be measured. That being said, the Supreme Court in Bossier Parish made clear that where a Section 2 claim alleges that a change to an existing practice violates Section 2, a court can look to the prior practice as part of the results test inquiry. In this case, the fact that North Carolina ■ successfully used SDR, OOP, 17 days of early voting, and pre-registration over several election cycles makes these practices highly appropriate to use an illustrative example because, unlike a hypothetical, the feasibility of, and results under, these practices are known and documented.
(Doc. 346 at 122.) Consistent with this position, Plaintiffs contend that SDR permitted African Americans and Hispanics to register on a “more equal” basis with whites. (Doc. 346 at 124.) Plaintiffs never state that the voting mechanisms in place prior to SL 2013-381 provided an equal opportunity to African Americans and other disadvantaged groups. Instead, under Plaintiffs’ theory of the case, even though North Carolina was a covered jurisdiction for fifty years, under, the VRA subject to DOJ supervision, the State has never offered an equal opportunity for minorities to participate in the electoral process.
Of course, this theory conflicts with the data since 2000, even. without Plaintiffs’ preferred voting procedures. Moreover, it presents an elusive basis for fashioning an appropriate remedy. While this court does not suggest that a plaintiff is entitled to no relief simply because under his theory of the case the remedy would not be complete,' the fact remains that in this case Plaintiffs’ failure to offer a principled,- non-arbitrary way to grant relief is part-and-
Vote dilution cases offer an illustration of the type of problem that granting relief in this case would involve. In Holder v. Hall, the Supreme Court • rejected a § 2 claim challenging the size of a governing authority for lacking any -“reasonable alternative benchmarks.”
The Supreme Court rejected this challenge and discussed the differences between § 2 and § 5 of the VRA throughout the opinion. In the plurality opinion, Justice Kennedy explained that § 2 requires plaintiffs to prove “a reasonable alternative practice as a benchmark against which to measure the existing voting practice.” Id. at 880,'
the benchmark for comparison in a § 2 dilution suit is obvious. The effect of an anti-single-shot voting rule, for instance, can be evaluated by comparing the system with that rule to the system without that rule. But where there is no objective and workable standard for choosing a reasonable benchmark by which to evaluate a challenged voting practice, it follows that the voting practice cannot be challenged as dilutive under § 2.
Id. at 880-81,
The Court rejected the notion that retrogression could be imported from the § 5 context into the § 2 context to establish a benchmark, explaining the differing purposes of the two sections. Id. at 883-84,
Retrogression is not the inquiry in § 2 dilution cases. 42 U.S.C. § 1973(a) (whether voting practice “results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color”); S. Rep. No. 97-417, p. 68, n. 224 (1982) U.S.C.C.A.N. 1982, p. 177 (“Plaintiffs could not establish a Section 2 violation merely by showing that a challenged reapportionment or annexation, for example, involved a retrogressive effect on the political strength of a minority group”). Unlike in § 5 cases, therefore, a benchmark does not exist by definition in § 2 dilution cases. And as explained above, with some voting practices, there in fact may be no appropriate benchmark to determine if an existing voting practice is dilutive under § 2. For that reason, a voting practice that is subject to the preclearance requirements of § 5is not necessarily subject to a dilution, challenge under § 2.
Id. at 884,
Justice O’Connor, in her concurrence, agreed with Justice Kennedy, observing that, “to determine whether voters possess the potential to elect representatives of choice in the absence of the challenged structure, courts must choose an objectively reasonable alternative practice as a benchmark for the dilution comparison.” Id. at 887,
Subsequently, in Reno v. Bossier Parish School Board, a majority of the Court further explained the differing benchmarks at issue in cases under § 2 and § 5:
The term “abridge,” however—whose core meaning is “shorten”—necessarily entails a comparison. It makes no sense to suggest that a voting practice “abridges” the right to vote without some baseline with which to compare the practice. In § 5 preclearance proceedings—which uniquely deal only and specifically with changes in voting procedures—the baseline is the status quo that is proposed to be changed: If the change “abridges the right to vote” relative to the status quo, preclearance is denied, and the status quo (however discriminatory it may be) remains in effect. In § 2 or Fifteenth Amendment proceedings, by contrast, which involve not only changes but (much more commonly) the status quo itself, the comparison must be made with a hypothetical alternative: If the status quo “results in [an] abridgement of the right to vote” or “abridge[s] [the right to vote]” relative to what the right to vote ought to be, the status quo itself must be changed. Our reading of “abridging” as referring only to retrogression in § 5, but to discrimination more generally in § 2 and the Fifteenth Amendment, is faithful to the differing contexts in which the term is used.
528 U.S.- 320, 333-34,
First, the minority group must be able to demonstrate that it is sufficiently large and geographically compact to constitute a majority in a single-member district. ... Second, the minority group must be able to show that it is politically cohesive. ,.. Third, the minority must be able to demonstrate that the white majoi'ity votes sufficiently as a bloc to enable it ... usually to defeat the minority’s preferred candidate.
There is a similar problem in this case, particularly insofar as Plaintiffs’ theory of the case is that they will be “more equal” if the removal of the voting mechanisms are, enjoined. Section 2 calls for “equal opportunity,” not “more equal opportunity,” This court has no way to assess where “more equal”—but nevertheless allegedly discriminatory—ends and the “equal opportunity” § 2 mandates begins. This is a significant problem given that the scope of any remedy imposed by this court “must be proportional to the scope of the violation, and the order must extend no further than necessary to remedy the violation.” Brown v. Plata,
For example, Plaintiffs fail to articulate any measure for how long an early-voting period must run or how many days should be included. If Plaintiffs do not have an equal opportunity with seventeen days, might they need twenty days? If, instead, Plaintiffs have an equal opportunity with seventeen days, is it possible that they still have an equal opportunity with eleven days? What about thirteen or fifteen? As in Holder v. Hall, the number of days of early voting is ultimately arbitrary on this record. If the court were to examine the
SDR presents the same issue. As the court could not order North Carolina to provide any more days of SDR than is necessary to remedy the violation, would equality of opportunity be achieved only with SDR on every day of early voting? If so, how many? Under Plaintiffs’ theory, seventeen days of SDR would still be insufficient. Indeed, Plaintiffs cite registration itself as the largest “impediment” or “barrier” to voting, (e.g., Doc. 331 at 215), so would Plaintiffs’ theory not similarly require North Carolina to eliminate any registration deadline altogether, like North Dakota has done? Or, because the evidence showed that EDR was associated with increased turnout, and Plaintiffs’ evidence showed that provisional ballots cast for “no record of registration” on Election Day in 2014 were disproportionately African American, (PI. Ex. 689), what is the principled basis to preclude requiring North Carolina from adopting EDR under Plaintiffs’ theory of § 2? On the present facts, Plaintiffs’ theories of recovery , are limited only by their present request for relief, not by any principled measurement of equality of opportunity.
OOP voting and pre-registration present similar difficulties under Plaintiffs’ theory. Before SL 2013-381, voters could only vote in an unassigned precinct on Election Day if they at least showed up in the correct county. But, if the elimination of OOP voting imposed a discriminatory burden, there is no basis for thinking that the county restriction did not also impose a discriminatory burden. Regarding pre-reg-istration, how many extra months of preregistration are required to provide equal opportunity?
All of these qualitative issues with the relief sought by Plaintiffs also give rise to a serious temporal problem. Absent an identifiable standard for measurement of relief proportional to the violation, how long should an injunction remain in place? Under the old law, African American registration rates already exceeded that of whites, and turnout exceeded that of whites in presidential elections. Under SL 2013-381, African American registration continues to exceed that of all others, and turnout exceeds that of comparable previous elections under the old law. Would the injunction stay in place until all racial socioeconomic disparities disappear? If the Plaintiffs’ theory of § 2 is correct, and their evidence in this case suffices for a § 2 violation, then this court would need to issue an injunction for an indefinite period without any articulable basis for measuring its successful attainment. But this court has no authority to do so. Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1,
During closing arguments, the court reiterated its concerns over all of these questions should Plaintiffs’ theory of the case prevail. Counsel for DOJ expressed that this case presents a “unique situation,” given that minority turnout, and registration rates exceed those of whites, (Doc. 343
In the end, however characterized, Plaintiffs’"inability to articulate a principled way for this court to properly redress their alleged injury is highly problematic, not just for this case, but for the fabric of the law. See, e.g., Bartlett v. Strickland,
In grappling with the difficult questions this case presents, the court pressed Plaintiffs on its concern that their theory threatens a “one-way ratchet” voting mechanism that, once enacted, could not practically be removed. Did Congress intend this result? Cf. Nixon v. Mo. Mun. League,
The Court also notes that an acceptance of Plaintiffs’ argument that a Section 2 violation occurs merely because' some counties have more early polling sites would have far-reaching implications. Consider the fact that many states do not engage in any form of early voting. Following Plaintiffs’ theory to its next logical step, it would seem that if a state with a higher percentage of registered African-American voters than Florida did not implement an early voting program a Section 2 violation would occur because African-American voters in that state would have less of an opportunity to vote than voters' in Florida. It would also follow that a Section 2 violation could occur in Florida if a state with a lower percentage of African-American voters employed an early voting system, as commented on above, that lasts three weeks instead of the two week system currently used in Florida. This simply cannot be the standard for establishing a Section 2 violation.
In the end, these important questions serve to undermine Plaintiffs’ results-based theory of recovery under § 2.
B. “Traditional” Fourteenth and Fifteenth Amendment Claims
The Fifteenth Amendment to the United States Constitution provides, “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.” Its prohibition, for purposes of this case at least, patterns an intent-based claim under § 2 of the VRA. See, e.g., 52 U.S.C. § 10301(a); Chisom v. Roemer,
The court has already found that SL 2013-381 was not passed with racially-discriminatory intent. For this reason, these two constitutional claims fail.
C. Anderson-Burdick Claim
Plaintiffs also bring another Fourteenth Amendment claim—which is not based on race or age, but on the right to vote generally—under the Anderson v. Celebrezze,
The right to voté is fundamental, but it does not entail an absolute right to vote in any particular manner. Burdick,
Plaintiffs contend SL 2013-381 imposes an unconstitutional burden on the right to vote. Regulations that impose a severe burden on the right to vote must be “narrowly drawn to advance a state interest of compelling importance.” Id. at 434,
weigh “the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff, seeks to vindicate” against “the precise interests put forward by the State as justifications for the burden imposed by its rule,” taking into consideration “the extent to which those interests make it necessary to burden the plaintiffs rights.”
Id. (quoting Anderson,
Where challengers fail to show that a law imposes a “substantial burden on the right to vote, or even represents a significant increase over the usual burdens of voting,” Crawford,
In addition, “when a state election law provision imposes only ‘reasonable, nondiscriminatory restrictions’ upon the First and Fourteenth Amendment rights of voters, ‘the State’s important regulatory interests are generally sufficient to justify’ the restrictions.” Id. (quoting Anderson,
As discussed above, Crawford considered whether Indiana’s voter-ID requirement violated the Equal Protection Clause of the Fourteenth Amendment.
Justice Stevens, writing for himself and two other members of the court, found that even though compliance with the law involved the “inconvenience of making a trip to the [Bureau of Motor Vehicles], gathering the required documents, and posing for a photograph,” the challengers had failed to show that, as for any class of voters, the law imposed “a substantial burden on the right to vote, or even represented] a significant increase over the usual burdens of voting.” Id at 198,
Even though the Court stated in Bur-dick that “[ejection laws will invariably impose some burden upon individual voters,”
Assuming, therefore, that the removal of a convenience voting mechanism is the type of burden contemplated by the equal protection clause, the court finds that Plaintiffs have failed to show that SL 2013-381 and SL 2015AL03 impose a “substantial burden” on any subclass of voters “or even represent a significant increase over the usual burdens of voting.” Crawford,
1. Voter ID
Plaintiffs, other than the United States,
SL 2013-381, as amended, is clearly less burdensome than Indiana’s ID requirement upheld by the Supreme Court in Crawford, Wisconsin’s ID requirement upheld by the Seventh Circuit in Frank, or Georgia’s ID requirement upheld by the Eleventh Circuit in Billups. See Crawford,
Moreover, despite accommodating those expressing genuine difficulties in acquiring photo ID, North Carolina’s voter-ID requirement still serves legitimate State interests articulated in Crawford. See supra Part II.A.2.j.i. As noted above, SL 2013-381 and SL 2015-103 had the effect of raising the security level of both absentee mail voting and in-person voting. See supra Part II.A.2.j.i. This court finds any alleged diminution in achieving the State’s purported interest to be more than offset by the reduction of burden achieved by the reasonable impediment exception. Accordingly, North Carolina’s voter-ID requirement serves legitimate State interests that are “sufficiently weighty to justify the limitation.” Crawford,
2. Early Voting
Plaintiffs contend that voters have become habituated to seventeen days of early voting and that decreasing early voting to ten days imposes a “substantial” burden by exacerbating congestion, increasing wait times, and decreasing flexibility for those with inflexible schedules and responsibilities. (Doc. 346 at 141.)
The evidence in this case contradicts Plaintiffs’ assertions. First, as discussed above, Plaintiffs failed to put forth credible evidence that SL 2013-381 produced congestion or increased wait times during the 2014 midterm election, or that these results will occur in future elections. This, is largely because of the same-hours requirement. This does not mean that there may not be lines, as early voting use has been proven to fluctuate with natural peak use times irrespective of the schedule.
Second, there is no evidence that North Carolina’s introduction of early voting or use of seventeen days of early voting caused increased political participation either overall or for any subclass. In fact, the scholarly consensus is that early voting tends to depress voter turnout.
Third, due to the interaction between SL 2013-381’s same-hours requirement and the reduction in early-voting days, CBOEs are forced to either open more early-voting sites or keep existing sites open for longer hours, including expanding weekend hours. The 2014 midterm illustrated this interaction, as high-convenience night and weekend voting hours actually increased when SL 2013-381 was implemented. (See, e.g., PI, Ex. 242 at 167—68.) The same-hours requirement can only be waived by a unanimous vote of a bipartisan CBOE and bipartisan SBOE, which in total requires agreement among five members of the majority party and three members of the minority party; a single dissent will veto a waiver. (See Doc. 340 at 204r-05.) Thus, GOTV efforts will have the same availability of early-voting hours as before.
Fourth, the evidence showed that, even when seventeen days of early voting could be offered, it was the last ten days that were most heavily used and most offered. (See Def. Ex. 362 at 1-3; Doc. 338 at 134-41.) Further, not all of the seven days of early voting that were eliminated were actually used. CBOEs were not required to offer weekend hours during the first seven days, (Doc. 340 at 197-98), and no county offered early voting on the first Sunday in 2010, (see Doc 126-4 at 45-90).
Fifth, under the new ten-day early-voting schedule, African American use of early in-person voting increased, turnout for both African Americans and whites increased, and the disparity in turnout between African American and white voters decreased.
Finally, Plaintiffs failed to show that any voters are habituated to early voting. Instead, the evidence showed that voters were able adapt to the new schedule. In fact, those who voted during the first seven days of early voting in 2012 were more likely to vote in 2014 than those who voted in the last ten days.
Plaintiffs also argue that the new schedule eliminates a Sunday of voting, which was important for GOTV efforts. This is true, but insofar as the schedule maintains one Sunday of voting and increases night and weekend availability, the court cannot say that this results in an impermissible burden on those efforts.
For all these reasons, and those laid out elsewhere in this opinion, Plaintiffs have failed to show that the changes to the early-voting schedule impose a “substantial burden” on any subclass of voters “or even represent a[n] ... increase over the usual burdens of voting,” Crawford,
As discussed above, the changes to the early-voting schedule (with the same-hours amendment) were intended to make early voting more accessible and ensure that different parts of a county are more equally served. By removing seven days of early voting but requiring that the same number of aggregate early-voting hours be offered, SL 2013-381 furthers the State’s relevant and substantial interests by requiring CBOEs to either open more early-voting sites or keep existing sites open for more hours, including expanding weekend hours. If a CBOE does the former, different parts of a county are more equally served. If it does the latter, voters are provided voting hours that are more convenient for typical work schedules, especially those of lower economic means. Both appear to have occurred in the 2014 midterm, when both more locations and more night and weekend hours were offered. In other words, SL 2013-381 effectively reallocated the first seven days under the former schedule, which were the least used days, into times that are more accessible to voters.
Accordingly, this court finds the reduction in early-voting days to be tailored to achieving the State’s relevant and substantial interest in producing a more efficient and fair early-voting process. In addition, given that Plaintiffs have failed to show that the changes to the early-voting schedule impose a “substantial burden” on any subclass of voters “or even represent a[n] ... increase over the usual burdens of voting,” this court finds the State’s precise interest to be “sufficiently weighty to justify the limitation.” Crawford,
3. SDR
Plaintiffs contend that the removal of SDR imposes a “severe” burden by removing a “fail-safe” necessary to avoid the disenfranchisement of thousands of tran
As discussed above, North Carolina provides a myriad of ways for voters to comply with the registration requirement prior to the cut-off (which is five days more generous than the NVRA’s thirty-day requirement), most of which permit assistance. See supra Part II.A.3.C. Those who avail themselves of North Carolina’s many registration opportunities at least twenty-five days before Election Day have the opportunity to vote either during the ten days of early voting (at any early-voting site), on Election Day (at their ■ correct precinct unless they are an unreported mover), or through the State’s mail-in absentee ballot process. The ease of registering and voting in North Carolina without SDR is bolstered by the fact that, even after SDR was eliminated, African American and young voter
By contrast, SDR’s removal serves relevant and sufficiently substantial State interests by ameliorating several significant problems. First, and most importantly,
For these reasons, this case is significantly different from Husted. There, the State was unable to identify any real burden in having five days of ordinary registration overlap with the first five days of the thirty-five day early-voting period (“Golden Week”), or any benefit to the State from eliminating those five days overlap because the State still had thirty days to verify SDR registrants. Husted,
Given that Plaintiffs have failed to show that the removal of SDR imposes a “substantial burden” on any subclass of voters “or even represents] a[n] ... increase over the usual burdens of voting,” this court finds the State’s precise interests furthered by the removal of SDR to be “sufficiently weighty to justify the limitation.” Crawford,
4. OOP
Plaintiffs contend that the removal of OOP imposes a severe burden by disenfranchising those who attempt to vote outside of their precinct on Election Day. (Doc. 346 at 142.) Because OOP provisional ballots have never constituted more than a fraction of a percentage point of votes cast, and voting in the correct precinct merely requires one to become informed of his or her correct precinct and travel to it within the county, the burden (if any) to the general voting population from the removal of OOP is very slight. Insofar as North Carolina has employed a precinct-based system for more than a century, in no case is it “substantial,” nor does it “represent a[n] ... increase over the usual burdens of voting.” Crawford,
Plaintiffs have presented evidence that African Americans are disproportionately more likely to be socioeconomically disadvantaged and to have less stable access to transportation.
Further, a benefit of a precinct-based system is, as recognized in James, that it generally places voting locations closer to voters. The fact that Plaintiffs’ evidence fell far short of establishing that OOP voters’ correct precinct was not in fact the closest one to their address of registration supports the conclusion that the precinct system is serving the benefits outlined in James. In fact, only two witnesses (a married couple) testified that their correct precinct was not the closest precinct to their residence. But the disabilities of these witnesses were such that even voting at the closest, albeit incorrect, precinct was nearly an unmanageable burden. More than anything, these witnesses demonstrated the need for mail voting, which North Carolina provides.
As to Plaintiffs’ other fact witnesses, even though OOP voters must be registered and every registered voter is mailed a registration card that provides his or her correct precinct, it was apparent that many such voters had never attempted to check their correct precinct. (See, e.g., Doc. 330 at 176-77.) Of course, voters who determine their correct precinct will never have to travel from the wrong precinct to the correct precinct. Nevertheless, the evidence does not support Plaintiffs’ claims even for those who first appeared at an incorrect precinct. As discussed above, Plaintiffs presented the deposition testimony of a poll observer who, in attempting to measure the impact of SL 2013-381, collected the names of fifty-nine individuals who left a precinct because they were assigned to vote in another precinct. (PI. Ex. 796.) However, Defendants’ follow-up revealed that, of the fifty-two who could be identified as registered voters, forty-nine ultimately voted on Election Day. (Def. Ex. 343.) Accordingly, 94.2% were able to travel from the wrong precinct to the right one on Election Day. Only three of the fifty-two never successfully voted; two were white, and the other. was African American who does not appear to have been eligible to vote anyway. (Id. at 132-34, 140-43.) This evidence undermines Plaintiffs’ contention that requiring voters to vote in the correct precinct imposes a substantial burden.
Accordingly, while the removal of OOP requires voters to travel to their correct precinct, the incredibly small number of voters (including African Americans) af
As discussed . above, OOP’s removal served relevant and substantial State interests that have been well-established and thoroughly .laid out by both the North Carolina Supreme Court and the. Sixth Circuit. See supra Part II.A.2.j.iv. The precinct system caps the number of voters attempting to vote in one place on Election Day, allows each precinct to prepare a ballot that all voters who vote at that precinct will be eligible to complete in.full, makes ballots less confusing by only including those candidates for whom a citizen may vote, makes it easier to monitor votes and prevent fraud, and generally results in polling places being closer to voter residences. James,
Although OOP voting may have increased the proximity of the nearest Election Day voting location for some voters, it did so only by undermining many of the other advantages of a precinct-based system. First, it removed the cap on the number of voters attempting to vote in one place on Election Day, and the evidence shows that political organizations transported voters to precincts without making any determination of their correct precinct. (PI. Ex. 9 at 5; PI. Ex. 811 at 46.) Second, OOP voting produced significant administrative burdens. See supra Part II. A,2.j,iv. Finally, OOP partially disenfranchised voters. See supra Part II.A.2.j.iv. Although OOP voters may have thought that there was no difference between going to their correct precinct and a different precinct with OOP in place, and that all of their provisional votes would count, this was not the case. Thus, as laid out in James, OOP made voting more confusing because OOP voters were not actually eligible to vote for all of the races on the provisional ballot they were provided. There were also races omitted from the provisional ballot that OOP voters, would have been eligible to vote for if they had presented at their correct precinct. OOP’s removal significantly ameliorated .each of these problems and restored the advantages of a precinct system outlined in James.
Given that Plaintiffs have failed to show that the removal of OOP imposes a “substantial burden” on any subclass of voters “or even represents] a[n] ... increase over the usual burdens of voting,” this court finds the State’s precise interests furthered by the removal of OOP to be “sufficiently weighty to justify the limitation.” Crawford,
5. Pre-registration
Plaintiffs contend that the removal of pre-registration imposes a “severe” burden on young voters by increasing confusion and forcing them to register in a more burdensome manner. (Doc. 346 at 142.) Plaintiffs also claim that, without pre-reg-istration, youth registration and ' turnout will decrease, particularly among African American and Hispanic citizens. (Id.)
In support of them claim, Plaintiffs have demonstrated that pre-registration increases youth turnout, albeit in a race-neutral manner.
First, because pre-registration’s removal did not eliminate a registration opportunity for anyone who is actually eligible to vote, this court doubts whether the elimination of pre-registration imposes a cognizable burden on the right to vote. Plaintiffs have provided no authority for the proposition that the Constitution’s prohibition of certain unjustified burdens on the right to vote extends to burdens imposed on those who are not eligible to vote.
But assuming cognizable burdens extend beyond eligible voters, this court cannot say that registering and voting is materially more difficult for young voters without pre-registration. Even assuming that preregistration at a mandatory high school voter registration drive is the most convenient way for young North Carolinians to register, as set forth above, North Carolina offers a multitude of highly convenient ways to register. See supra Part II.A.3.C. Young North Carolinians who are unable to pre-register at sixteen due the removal of pre-registration but who,wish to do so if they will be eighteen before the next election need look no further than their own high' school to find all the materials that are required. See N.C. Gen. Stat § 163-82.23 (“Every public high school shall make available to its students and others who are eligible to register to vote [voter registration application forms], and shall keep a sufficient supply of the forms so that they are always available.”). Even without pre-registration, North Carolin-ians who are seventeen-years-old but will be eighteen by the time of the general election can begin to take advantage of these ample registration opportunities as early as sixty days before the primary preceding the general election. N.C. Gen. Stat. § 163-59. In addition, young individuals could not disregard these ample alternative means of registration simply because they pre-registered. In fact, even when pre-registration was in place, pre-registrants who moved residences between counties prior to voting, such as college students, needed to use these alternative methods of registration to re-register. Simply put, the removal of pre-registration does not hinder young North Carolinians from using any of the remaining methods of registration and voting that this court has found to be sufficient for other groups; it merely requires that they wait until they will be eligible to vote in the next election.
For these reasons, to the extent that the removal of pre-registration imposes a burden upon young voters that is cognizable under Anderson-Burdick, that burden is extremely slight. In no event is the burden that young North Carolinians face to register any greater than the “usual burdens of voting.” Crawford,
As noted above, the State’s interest for pre-registration—reducing confusion—was far weaker than for the changes to early voting and the removal of SDR and OOP. In fact, for the registrant, the removal of pre-registration makes the issue of when he or she is eligible to register marginally more complicated. Nevertheless, there was evidence of voter confusion with pre-regis-tration, namely that some pre-registrants reasonably believed that they would re-ceivé a voter registration card after preregistering. Senator Rucho also claimed during legislative debate of SL 2013-381 that he and his son experienced confusion with pre-registration. See supra Part II. A.2.J.V.
Therefore, since the burden on the prospective pre-registrants is extremely slight or, more likely, non-existent (since they are not eligible voters), the State’s interests are sufficient to overcome this “burden.”
6. CBOE Discretion
Plaintiffs contend that the removal of CBOE discretion to keep polling locations open for an extra hour on Election Day burdens “some voters,” but they do not characterize the burden’s nature. (Doc. 346 at 142.) Plaintiffs do not specify who these voters are likely to be, nor do they allege that they share any characteristic that would makei it more difficult for them to vote during normal Election Day hours (or for that matter during the ten days of early voting or by an absentee mail-in ballot). In fact, what Plaintiffs characterize as a loss of voting time is actually a reallocation of decision making to the SBOE. Even after SL 2013-381, if there is an interruption in voting for more than fifteen minutes, the SBOE can extend hours for the length of the interruption. N.C. Gen. Stat. § 163-166.01. In addition, anyone that is in line at the time the polls close is allowed to vote regardless of how long it takes. In other words, both before SL 2013-381 and after, there is a mechanism to accommodate voters. Session Law 2013-381 simply places this mechanism with the SBOE. Plaintiffs did not present any evidence that anyone was burdened by this transfer of discretion. Following a full trial, it is insufficient for Plaintiffs to speculate as to the effect of an election change.
The State has a legitimate interest in promoting uniformity in the hours of voting offered. North Carolina’s decision to place decision making-authority with the SBOE, rather than 100 CBOEs, is tailored to achieving this interest. Even if SL 2013-381’s reallocation of decision-making authority imposed the slightest of burdens upon voters, which it does not, the State’s interest is sufficient to overcome it.
7. Poll Observers and Challengers
Plaintiffs also challenge SL 2013-381’s expansion of poll observers and challengers as an unjustified burden on the right to vote. (Doc. 384 in case l:13cv658 at 5, 34.)
Plaintiffs do not challenge the use of poll observers or challengers generally; they instead argue that the law’s expansion of them burdens voters. Any use of a poll observer to intimidate a voter is unlawful and will not be tolerated. But Plaintiffs’ concerns as to future fears remain speculative, even after trial. They have presented no evidence that any observer or challenger would or did abuse his statutory power or that observers or challengers imposed any burden on voters in 2014. As such, no State justification is needed to sustain the poll observer provision. See McLaughlin v. North Carolina Bd. of Elections,
8. Cumulative Effect of Provisions
The court now considers the cumulative effect of the challenged provisions. See, e.g., Pisano v. Strach,
The cumulative effect of the challenged provisions is no more than slight to modest. Even though SL 2013-381 added a voter-ID requirement (with reasonable impediment exception) and removed or amended more than one measure, the measures had provided exceptions to traditional and long-standing voting rules in the State. North Carolinians who wish to register and vote still have many convenient ways that provide ample opportunity to do so. North Carolinians can submit an absentee mail-in ballot between forty-five and sixty days before Election Day (depending on the election), vote during the ten days of early voting during expanded hours, or vote on Election Day. Although North Carolinians must now register by twenty-five days before the election, registration is easy, open all year, and can be accomplished by methods that remain plentiful. That this is so is reflected by the increase in registration and turnout rates seen in the 2014 primary and general elections. And, while Plaintiffs characterize North Carolina as unique in altering its election law provisions in the same bill,
In sum, Plaintiffs have failed to show that any North Carolinian who wishes to vote faces anything other than the “usual burdens of voting.” Crawford,
D. Twenty-Sixth Amendment Claim
Finally, Intervenor Plaintiffs, “young voters,” argue that the voter-ID requirement, the transfer of discretion to extend early-voting hours, the change in the early-voting schedule, the elimination of SDR, OOP, pre-registration, and mandatory high school registration drives all violate the Twenty-Sixth Amendment to the United States Constitution by “intentionally burdening] the ability of young people ... to register and to vote.” (Doc. 285 at 55.) Intervenors, all eighteen and older, do not bring their claims on behalf of a class of voters; they bring them on their own behalf, only. Intervenors’ claims, are novel and appeared murky throughout this litigation. Trial did not make them less so.
The Twenty-Sixth Amendment provides: “The right of citizens of the United States, who are 18 years of age or older, to vote, shall not be denied or abridged by the United States or any state on account of age.” The amendment is modeled after the Fifteenth and Nineteenth Amendments.
Few cases have considered the Twenty-Sixth Amendment. Plaintiffs rely on Walgren v. Board of Selectmen of Town of Amherst,
Defendants cite Gaunt v. Brown,
Accordingly this court faces a dearth of guidance on what test applies to Twenty-
Plaintiffs presented evidence that young North Carolina voters were more likely than older voters to use SDR and OOP when they were in place. (PI. Ex. 236 at 7-8, 35); supra note 117. Young voters were also more likely to vote after 1 p.m. on the final day of early voting, and HB 589 removed CBOE discretion to extend early voting from 1 p.m. to 5 p.m. on the final day of early voting. (PL Ex. 236 at 7.) There was also evidence that young voters are less likely to have qualifying photo ID. (Id. at 8.) Finally, by definition, young individuals were the only group that could pre-register or participate when high school voter registration drives were mandatory. There is no evidence that young voters disproportionately used the discretionary hour of voting SL 2013-381 transferred from CBOEs to the SBOE.
There is also evidence that, along with every other possible demographic, Representative Warren requested a DMV cross-matching of DMV issued. IDs with registered voters broken down by age. (PI. Ex. 69 at 3 (“[W]e would need to have [the cross-matching] broken down into different categories within each county by all possible demographics that your department typically captures (party affiliation, ethnicity) age, gender, etc.).”).) He also requested the same information for one-stop voters and provisional voters. (Id.) Similarly, Senator Stein and other representatives claimed that HB 589 would disproportionately burden young voters. (See, e.g., PI. Ex. 550 at 30, 33.) But see Butts,
Next, Plaintiffs point to the fact that college IDs were not permitted under HB 589’s voter-ID-provisions. But, as noted above, the legislature offered at least plausible reasons for excluding student IDs: (1) there was inconsistency in the way colleges issued IDs, (PI. Ex. 202 at 68-69), and (2) permitting student IDs would be redundant because some schools require a photo ID to obtain a student ID, (PI. Ex. 138 at 13).
Even having considered the above with all the other evidence of intent presented by Plaintiffs, this court finds that the legislature enacted HB 589 in spite of, not because of, these disparities.
In short, what remains under the law provides all voters, including young voters, with an equal and ample opportunity to participate in the political process. This court realizes that the relevant question for intent is limited to the time of enactment, but the fact that young voter turnout increased under the new law is some further indication that undermines Plaintiffs’ intent claim.
As such, and having considered the entire record as a whole, the court finds that Plaintiffs have failed to establish that the legislature intended to discriminate against young voters by enacting SL 2013-381.
Plaintiffs have failed to show that SL 2013-381 imposes a heavier burden on young voter's.
Intervenors’ Twenty-Sixth Amendment claim, therefore, fails and will be dismissed.
E. Remedy
■ Plaintiffs argue that their claims entitle them to various forms of relief: a permanent injunction of the challenged provisions; the appointment of federal election observers through 2019 under § 3(a) of the VRA; and subjecting North Carolina to pre-clearance through 2023. (Doc. 346 at 149.) As a result of the court’s findings and conclusions, no permanent injunctive or other relief is warranted.
Following the lifting of the Supreme Court’s stay in this case, the Fourth Circuit’s pretrial injunction against repeal of SDR and OOP went into place and has been contemplated by voters and would-be registrants for the 2016 primary season.
III. CONCLUSION
Any restriction on the fundamental right to vote, which is preservative of all others, must be sufficiently justified. Crawford,
Not long ago, States observed registration cut-off dates and made voting available only on Election Day. Indeed, even today many States, including New York, one of the Nation’s largest and portions of which were previously covered by § 5 of the VRA, continue to do so. Yet, by any measure, North Carolina had recently become progressive nationally by permitting absentee voting; in-person voting for up to seventeen days in addition. to Election Day; additional registration after the cutoff, including up to three days before Election Day; the casting of a ballot on - Election Day in any unassigned precinct in the voter’s county; and “pre-registration” by sixteen-year-olds. Some of these measures were controversial when enacted, and one—out-of-precinct provisional voting— was passed on a' purely partisan basis in a manner designed to gain Democrats electoral victory retroactively.
In 2013, North Carolina retrenched. Changes to the State’s election laws were contained in a fifty-seven-page bill, but in truth only about fifteen pages addressed the provisions at issue today. They reduced voting days but extended hours in like fashion, on the ground that doing so restored fairness and prevented previous gaming of the system; eliminated same-day registration, on the ground that experience showed that juxtaposing registration so close .to Election Day resulted in the counting of ballots by voters who later failed the State’s- statutory mail verification system for ensuring eligibility; required voters to appear on Election Day at their assigned voting precinct, on the ground that the precinct-based system (on the authority of the North Carolina Supreme Court) serves recognized and legitimate State interests; returned minors’ registration- eligibility to the age of eligibility, which still allows them to vote in primaries at age seventeen and is more generous than required by law; and joined almost
Because these provisions, although originally proposed in separate bills, were consolidated into one bill considered together and only after the Supreme Court’s decision in Shelby County, opponents cried foul and infer racial intent, particularly given that some of the provisions were used disproportionately by African Americans. Proponents argue that the changes were based on legitimate and substantial concerns of election integrity and fairness and leave an electoral system that provides generous, fair, and equal opportunity for voters of all races and ages.
Plaintiffs themselves acknowledge that the removed mechanisms were “conveniences” and “fail-safes” to the ordinary rules for voting. By definition, therefore, any repeal or modification results in a marginal reduction or modification in options for those who preferred them. The question is not what this court would prefer or find best as a policy matter. That is the province of legislatures and executives, both of which represent the will of the people as elected representatives. Rather, the question in this case is whether Plaintiffs have demonstrated that the measures violate the VEA or the Constitution.
At the preliminary injunction stage, Plaintiffs argued that the mechanisms were adopted to increase minority participation and forecast that their elimination would result in reductions (indeed, sizeable ones) in African American participation in the electoral process. This court was not persuaded that Plaintiffs had made a clear showing for relief and denied the request. On that record, the Fourth Circuit affirmed in part but directed the court to enjoin the repeal of same-day registration and out-of-precinct provisional voting. However, as a result of the. Supreme Court’s stay of that mandate, the State proceeded under SL 2013-381, which provided data from the 2014 general election as to the actual results of the implementation of the law. Such data are precisely the sort of electoral information courts are encouraged to consider, because they permit an understanding of the effect of a law based on “historical facts rather than speculation.” Purcell,
After twenty-five' days of trial and reviewing over 20,000 pages of record and the testimony of over 20 expert and 100 fact witnesses, and after considerable reflection, the court is in a position to evaluate the effect of SL 2013-381 based on actual historical facts, rather than speculation.
The evidence shows that African Americans have fared better in terms of registration and turnout rates in 2014, after, the new law was implemented, than in . 2010, when the old provisions were in place. Presently, African Americans hold a commanding lead over all other races in voter registration (e.g., 91.2% African American vs. 83.4% white). Since SL 2013-381 has been in place, African American turnout not only increased but did so at a greater rate than that of other groups (including whites). In fact,, the 2014 general election saw the smallest white-African American turnout disparity in any midterm election from 2002 to 2014. These facts may surprise some, including Plaintiffs’ experts (who predicted the opposite before trial), .but the outcomes are less surprising when one realizes that Plaintiffs were unable to show that the removed mechanisms were responsible for the greater-than-parity political participation achieved by African Americans. Instead, there was strong evidence that other factors were more substantially at play, such as President Obama’s candidacy and North, Carolina’s
The 2014 data merely confirm what the remaining data suggest: that minorities enjoy equal. and constitutionally-compliant opportunity to participate in the electoral process. No doubt, many variables fed into the 2014 aggregate turnout and registration data. But Plaintiffs’ evidence failed to provide anything more persuasive. For example, despite having the ability to do so, Plaintiffs did not perform the type of analysis necessary to separate out the causal effect of various factors said to drive election participation results, which even Plaintiffs’ experts seemed to agree would be the appropriate analysis to measure the alleged effects of the measures at issue. Nor could Plaintiffs show that the 2014 results would have been any better for minorities had the removed mechanisms remained in place. Plaintiffs bear the burden of proof in this case, and Defendants cannot be blamed for this absence.
Moreover, while the educational and socioeconomic disparities suffered by African Americans might suggest that the removed mechanisms would disproportionately benefit them, this court cannot find an inequality' of opportunity simply because educational and socioeconomic disparities suggest one might exist—there must actually be an inequality of opportunity. LULAC,
North Carolina’s ample remaining alternative registration and voting mechanisms are the likely explanation for this adjustment. Even after SL 2013-381 as amended, North Carolinians of all races can register in many convenient ways and can vote by mail, during ten days of early voting—now at more sites and at more convenient hours—or on Election Day at their correct precinct. It is a given that government should endeavor to make it as easy as practicable to exercise the right to vote. But the fact that voting can almost always be made easier does not render a State’s failure to do so, or a State’s repeal of a convenience or “fail-safe,” unlawful or unconstitutional per se. With every relaxation of the rules there is often an attendant trade-off or effect on verification and election integrity. The State demonstrated as much here.
Same-day registration created administrative burdens that could not be overcome despite great effort by additional CBOE staff. Most importantly, it was incompatible with the State’s statutory mail verification process for eligibility. Same-day registration’s close proximity to Election Day did not just create a risk that voters would not be mail-verified before the same-day registrant’s vote was counted, it ensured that a significant number of ballots (2,361 voters in 2012 alone) would be counted in each election even though the registrant later failed mail verification after any challenge could be made. This may be why most States do not implement same-day registration. In any event, other States use mail verification, and Plaintiffs have not demonstrated that North Carolina’s historical reliance on it is unreasonable or reflects a racial bias or result. Plaintiffs urge that same-day registration’s requirement
As for early voting, the evidence was that the old schedule had several days with low usage, many counties did not use the full allotment of days (including Sundays), and sites were placed inconsistently and based on partisan advantage. By requiring that the number of early-voting hours nevertheless remain the same, the new law creates more early-voting sites and additional night and weekend hours that are more convenient to workers and lower so-cio-economic voters. The 2014 data proved as much.
With regard to out-of-precinct provisional voting, the trial evidence demonstrated that voters tended to use it out of added convenience or inattentiveness to their assigned precinct. For over 100 years, no one seriously contended that the State’s statutorily-provided precinct system provided inequality of opportunity to vote. Judged against the immaterial burden of requiring a voter to cast a ballot in his or her assigned precinct, and given the benefits of the precinct system recognized by the North Carolina Supreme Court in James and the Sixth Circuit, this court cannot say that returning to it (circa 2004) imposes an unlawful or unconstitutional burden not justified by the benefits.
As for pre-registration, there can be no dispute that allowing sixteen-year-olds to “pre-register” is not required for equality of electoral opportunity. North Carolina already provides ample time to register and permits even seventeen-year-olds to vote in the primary before their eligible general election.
Finally, North Carolina’s voter-ID requirement, now with a reasonable impediment exception, serves legitimate State interests recognized by the Supreme Court in Crawford without imposing a material burden on any group of voters. Plaintiffs’ contention that North Carolina’s requirement is one of the strictest in the country ignores the reasonable impediment exception. If North Carolina is an outlier, it is because it is one of only two States in the Nation to accommodate voters who wish to vote in person but for whatever reason face an impediment to acquiring qualifying ID. The court’s conclusion is fully consistent with the same finding of the three-judge court that approved a virtually identical photo-ID law with reasonable impediment in South Carolina,
In short, North Carolina has provided legitimate State interests for its voter-ID requirement and electoral system that provides registration all year long up to twenty-five days before an election, absentee voting for up to sixty days before an election, ten days of early voting at extended hours convenient for workers that includes one Sunday and two Saturdays, and Election Day voting. Plaintiffs oppose this system because they preferred one that they say was even more convenient—which they used disproportionately during certain elections—and point to some fraction of voters who did not vote or register. Plaintiffs’ contention that such voters did not do so because of vestiges of historical official discrimination is rebutted by the facts. There is strong evidence that some other reason is at play for the failure of these persons to register and/or vote. The unprecedented gains by African Americans in registration and turnout, both during and even in 2014 after SL 2013-381, bolster this conclusion. While the consideration is clearly local and practical in nature, based on North Carolina’s unique facts, it would no doubt bear relevance if North Carolina were seeking to return to
For all these reasons, Plaintiffs have failed to demonstrate that Defendants have violated § 2 of the VRA or the Fourteenth, Fifteenth, or Twenty-Sixth Amendments to the United States Constitution.
For the reasons stated, therefore,
IT IS ORDERED in cases 1:13CV861, L13CV658, and 1:13CV660 as follows:
1. The United States’ Motion in Limine to Exclude Improper Expert Opinion Testimony of Brian Neesby, (Doc. 265), the United States’ Motion to Strike Certain Testimony of Brian Neesby, (Doc. 326), and the NAACP Plaintiffs’ Motion in Li-mine to Exclude Defendants’ Untimely Discovery Materials,” (Doc. 291), are DENIED IN PART to the extent the challenged materials are relied upon in this memorandum opinion and are otherwise DEEMED MOOT. The Duke Intervenor-Plaintiffs’ Motion to Strike Brian Neesby’s Testimony Regarding Mail-Verification Failure Rates Among Preregistrants and to Exclude Defendants’ Exhibit BN-3, (Doc. 327), need not be resolved insofar as the court did not rely on this evidence, and the motion is therefore DEEMED MOOT.
2. Plaintiffs’ Motion to Strike the Declarations of Sean P. Trende and Motion to Exclude his Testimony at Trial, (Doc. 271), is DENIED IN PART to the extent relied upon in this memorandum opinion and is otherwise DEEMED MOOT.
3. Plaintiffs’ Motion to Strike the Declarations. of Thomas Brooks Hofeller and Motion in Limine to Exclude his Testimony at Trial, (Doc. 273), is DEEMED MOOT in light of Plaintiffs’ withdrawal of the motion at trial, (Doc. 340 at 140-41). This court’s memorandum opinion relied only upon the redacted version of Dr. Ho-feller’s report. (Def. Ex. 212A.)
4. Plaintiffs’ Motion to Strike Portions of the Declarations and Motion in Limine to Exclude Certain Testimony of Dr. Janet Thornton at Trial, (Doc. 275), was granted in part at trial and otherwise is DENIED to the extent her testimony is relied upon in this memorandum opinion.
5. Defendants’ Motion to Exclude Testimony by the United States’ Expert, Dr. Charles Stewart, (Doc. 269), was held in abeyance- by Defendants when trial was bifurcated in July 2015, (Doc. 279), and never renewed. In any event, it is DENIED, as the arguments for exclusion have been considered by the court as to the weight of the evidence.
6. Defendants’ Motion in Limine to exclude certain testimony of Dr. Allan Licht-man, (Docs. 287), is GRANTED IN PART AND DENIED IN PART. Defendants’ motion to exclude Dr. Lichtman’s supplemental report of June 9, 2015, is DENIED, but the arguments for exclusion have been considered as to the weight of the evidence. Defendants’ motion to exclude Dr. Lichtman’s matching analysis is DENIED, but the arguments for exclusion have been considered as to the weight of the evidence. Defendants’ motion to exclude certain emails is GRANTED as to the truth of the matter asserted on the ground of hearsay and is otherwise DENIED. Defendants’ motion to exclude certain conclusions by Dr. Lichtman as to discriminatory intent is GRANTED for the reasons addressed in this memorandum opinion. Defendants’ objection to certain newspaper articles relied upon by Dr. Lichtman was sustained at trial. (Doc. 333 at 154-55.)
7. Defendants’ motion to exclude rebuttal testimony of Dr. Lichtman, (Doc. 342 at 186-90; Docs. 324, 325), is GRANTED as to mail verification rates for 2014, (see Doc. 325 at 9-12), and is otherwise DENIED.
IT IS FURTHER ORDERED that in cases 1:13CV861, L13CV658, and
Any motion for recovery of costs and/or attorneys’ fees shall be governed by the Federal Rules of Civil Procedure, this court’s Local Rules, and any other applicable rule.
An appropriate Judgment will be entered separately.
Notes
. The parties sometimes refer to the challenged law as "House Bill 589,” its original
. Because of the duplicative nature of the filings in these three cases, the court will refer only to the record in case 1:13CV861 except where necessary to distinguish the cases. Where the court has cited to docket entries, (e.g., Doc. 346 (Plaintiffs’ proposed conclusions of law and findings of fact)), pinpoint cites are to the CM/ECF pagination. Where the court cites to exhibits by the parties, pinpoint cites are to the exhibit’s internal pagination where possible. This includes exhibits containing deposition designations.
, This includes all expert reports, to which the parties waived hearsay objections, but does not include the trial transcript or Plaintiffs’ Exhibit- 646, which is a database with 39,912 pages.
. “One-stop” refers to the procedure allowing voters to request and cast an absentee ballot at the same time. "Early voting” describes in-person absentee voting at designated locations before Election Day. Absentee mail-in voting, like early in-person voting, is a form of "absentee voting.” Even when a voter shows up in person, he is simply applying for and completing an absentee voting application and ballot at the same time. Mail-in voting breaks this into two steps: the voter applies for a no-excuse absentee ballot, and, after the
. Unlike the form of absentee voting that existed prior to 1973, all actions necessary for the one-stop early-voting ballot had to ‘be performed in the office of the board of elections.” 1973 N.C. Sess. Law 536, § 1.
. The vote in the Senate was 36-10, with four Republicans voting with the majority, and 60-53 in the House with all Republicans joined by one Democrat in opposition. (PI. Ex. 46 at 25.) The court may take judicial notice of the legislative history of the laws at issue. See Fed. R. Evid. 201; see e.g.. Hall v. Louisiana. No. 12-00657,
. As detailed infra, the trial evidence demonstrated that this resulted in early-voting sites being situated in areas more favorably to persons who tended to vo-' ⅛, .Oemocraf-ic candidates. (See, c.g., Defend, ruts' Exhibit (“Def. Ex.”) 212A at 14-16, 19 (finding {that the placement of and hours offered for-’early-voting site, favor Democrats over Republicans).)
. The final House vote was 60-54, with six Democrats not voting but four Republicans joining the Democratic majority. (PI. Ex. 47 at 16.) The Senate’s final vote was 46-2. (Id.)
. CBOEs remained free to open additional early-voting sites other than the CBOE office by unanimous vote or, in its absence, upon approval of the SBOE upon petition. N.C. Gen. Stat. § 163-227.2(g) (2001).
. N.C. Gen. Stat. § 163-55 provided (emphasis added):
Every person bom in the United States, and every person who has been naturalized, and who shall have resided in the State of North Carolina and in the precinct in which he offers to register and vote for 30 days next preceding the ensuing election, shall, if otherwise qualified as prescribed in this Chapter, be qualified to register and vote in the pre- ■ cinct in which he resides: Provided, that removal from one precinct to another in this State shall not operate to deprive any person of the right to~ vote in the precinct from which ■ he has removed until 30 days after his remov- ' ah-
. The final votes were 29-21 in the Senate and 61-54 in the House. (Def. Ex. 168.)
. The final votes were 69-47 in the House, with three Republicans joining the Democratic majority, (Def. Ex. 169), and 34-15 in the Senate, with four Republicans joining the Democratic majority, (Def. Ex. 170).
. The following constitute a valid "HAVA document”: “a current utility bill, bank statement, government check, paycheck, or other government document” showing the voter’s "name and address.” N.C. Gen. Stat. § 163-166.12(a).
.The final votes were 32-3 in the Senate and 107-6 in the House. (PI. Ex. 46 at 33.)
. S.B. 658 failed when Democratic SBOE Executive Director Gary Bartlett issued a memorandum on the day of the third reading of the bill, stating that he believed that reducing early voting would actually cost more. (PL Ex. 46 at 35.)
. Fed. R. Evid. 201.
. House Rule 41(a) states, "Every bill shall . receive three readings in the House prior to its passage. The first reading and reference to standing committee of a House bill shall occur on the next legislative day following its introduction.” H.R. 54; Fed. R. Evid. 201.
.House Rule 41(b) states; "No bill shall be read more than once on the same day without the concurrence of two-thirds of the members present and voting ...." H.R. 54.
. A version of HB 589 appears to have been distributed to members of the Rules Committee who were present on July 18, 2013. (Doc. 134-4 at 3.) It is not clear whether this version differed from that posted on the website on July 22.
. Several of the challenged parts of SL 2013-381 simply remove references to the old law, such as deleting terms like "pre-registration.”
. It is worth noting that, while this was the first time the Senators had seen this bill, HB 351 had already been passed by the Senate two years earlier. At least two of the Democratic Senators in the Rules Committee (Sens. Martin Nesbitt and Stein) in 2013 were also Senators when HB 351 passed.
.There is no indication the two-minute time allotment was a deviation from normal rules.
. One member of the public noted in passing that OOP voting was being removed. (PI. Ex. 202 at 54.)
. In denying Plaintiffs’ motion for a preliminary injunction, this court used the term “disparate impact” as shorthand for the fact that African Americans disproportionately used the removed mechanisms. See N.C. State Conference of NAACP v. McCrory,
. A Committee of the. Whole is a legislative device where the whole membership of a legislative house sits as a committee and operates under informal rules. Webster's Third New International Dictionary 458 (1986); see also H.R. 54 at 12.
.Plaintiffs contend that Representative Harry Warren (Republican) “[i]n describing the changes made by the Senate ... misleadingly claimed that the Senate substitute made very few substantive changes to the House version.” (Doc. 346 at 54.) This is a mischarac-terization. Representative Warren actually stated that the Senate "made very few substantive changes to the VIVA Act,” specifically referring to the voter ID portion of HB 589-— not the entire bill. (PI. Ex. 138 at 13, 17 (describing changes to the bill beyond voter ID as "additiún[s] to the VIVA bill”).) While Plaintiffs may debate the impact of the changes made to the voter-ID portion, Representative Warren’s statement was a reasonable description of the number of changes made to that portion of the bill. (See id, at 13-15.)
. Plaintiffs argue that Representatives Warren and Lewis failed to identify the changes made to early voting. (Doc. 346 at 54.) A review of the entire transcript reveals that Representative Warren was not tasked with introducing the early-voting revisions (Part 25 of HB 589); rather, Representative Lewis was. (PL Ex. 138 at 20, 22.) And, while Representative Lewis did not state that the bill "eliminated a full week of early voting” in his initial description of Part 25 of the bill (just as he did not mention the ameliorative amendment of the aggregate-hours requirement (id. at 22)), he did in fact address it during the debate, (id. at 116-17).
. Session Law 2015-103 will be referred to as HB 836 when discussing legislative history.
. These are the same methods of identification that were required for SDR when it was in place. 2007 N.C. Sess. Law 253, § 1 (permitting SDR-registrants to use any of the documents listed in N.C. Gen. Stat. § 163-166.12(a)(2)).
. A voter who is unable to provide either of these forms of identification may comply with the requirement by returning to their CBOE by noon the day prior to the election canvass and presenting the required alternate ID. N.C. Gen. Stat. §§ 163-166.15(d), 163-182.lB(c).
.The voter can also indicate that State or federal law prohibits listing the impediment. N.C. Gen. Stat. § 163-166.15(e)(l)h.
, Even after the passage of SL 2013-381, North Carolina continues to permit citizens who become naturalized after the registration deadline but before Election Day to both register and vote on Election Day. See N.C. Gen. Stat. § 163-82.6(d)—(e). Plaintiffs’ fact witness, Rita Palmer, who works to register Hispanics, testified incorrectly that the elimination of SDR would cause such new citizens to lose their right to register and vote. (Doc, 329 at 151, 159-60.)
. As discussed below, North Carolina law provides for out-of-precinct voting in one context even after SL 2013-381: If a registered voter moves to another precinct within the same county more than thirty days before an election but fails to report the move to the CBOE before the close of registration, the registrant is permitted to cast an out of precinct provisional ballot in her old precinct. N.C. Gen. Stat. § 163-82.15(e). As with regular OOP, the unreported mover's provisional ballot is only counted • for those races for which the voter was eligible to cast a ballot in her new precinct. Id.
. NAACP and League Plaintiffs sought a July 2014 trial date, while the United States sought an extended schedule with the possibility of a preliminary injunction in July 2014. (Doc. 39 at 20-24, 29, 35-40, 42-44.) In any event, no party sought to schedule a hearing on a motion to preliminarily enjoin SL 2013-381 before the May 2014 primary election. Cf, League,
. The Intervenor Plaintiffs elected not to participate at trial.
. . This does not include the trial transcript or Plaintiffs’ Exhibit 646, which is a database with 39,912 pages.
. SBOE Executive Director Kim Strach testified before trial that $900,000 remained by 2016, most of which will be spent on media this year. N.C. State Conference of the NAACP v. McCrory,
. Dr. Stewart was proffered without objection as an expert in American politics, election administration, research methods in political science, and the effect of election reforms in the American electorate. (Doc. 332 at 52.)
. This number is less than the number of registrants identified by the SBOE’s February 2015 no-match analysis (254,391) because the SBOE removed "(1) registrants who had a registration status of ‘removed’ at the time of the mailing and (2) registrants whose address could not be validated by the mail house vendor responsible for sending out the mailer.” (Def. Ex. 535 at 8-9.)
. This number is less than the 397,971 appearing on Dr. Stewart’s no-match list because the SBOE "eliminated voters who had been removed from -the voter rolls through regular list maintenance ... [and] eliminated voters ... who also appeared on SBOE’s no-match list and had therefore already been sent a mailing.” (Def. Ex. 535 at 9-10.)
. As a result of the SBOE's partnership with the United Way, the helpline system operated by the United Way includes photo-ID related messaging. (Def. Ex. 535 at 19-20.) Last year this helpline assisted 125,000 callers with needs such as "gaining access to affordable child care, counseling and support groups, health care .,. and help locating local food pantries and homeless shelters.” (Id. at 19.) While callers are on hold, the helpline plays a recorded message containing information about the current photo-ID requirements for voting. (Id. at 20.) Agent counselors also provide answers to basic information about the photo-ID requirements based on training from the SBOE. (Id.) United Way’s partnerships means that statewide distribution of election informational materials have extended to approximately twenty to sixty different affiliated agencies in each county. (Id.)
. See McCrory,
. "In the event that the Handbook fails to address a particular eventuality, poll workers ■will be trained to contact their county board of elections staff and/or SBOE personnel for assistance.” (Def. Ex. 535 at 4.)
, As noted, SL 2013-381 prohibits the State from charging any fee "to a registered voter who signs a declaration stating the registered voter is registered to vote in [North Carolina] 'and does not have a certified copy of that registered voter's birth certificate or marriage license necessary to obtain [acceptable] photo identification.” N.C. Gen. Stat. § 130A-93.1.
. A birth certificate, of course, is only one form of acceptable supporting documentation, of which there are many, (See Def. Ex. 533 at 1- (tbl. 1), 2 (tbl. 4).)
. It was undisputed at trial that federal law requires such a match. No party provided a citation to the applicable federal law in their conclusions of law and findings of fact, but the requirement appears to derive from the REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 302, 312.
. When she married, she had changed her name to Rosanell Johnson Eaton, (Pi. Ex. , 1045 at 20), but her license was in the name of Rosa Johnson Eaton, (Pi. Ex. 300).
. This exception arguably existed even under SL 2013-381, but SL 2015-103 clarified any ambiguity.
. It appears that her current registration is in the name of “Rosa Nell Eaton,” see NC Public Voter Information (“Rosa Nell Eaton”), https://enr.ncsbe.gov/voter_search_ public/voter_details.aspx?voter_reg_num= 000000015723&county=35 (last visited April 5, 2016), which also qualifies. “Rosa” qualifies as a "variation or nickname” of her formal first name. 08 N.C.A.C. 17.0101(c)(4)(B) (illustrating that "Sue” is an acceptable variation or nickname of Susanne). "Nell” as her middle name qualifies as a typographical error. Id. at 17.0101(c)(4)(F). Finally, "Johnson” qualifies as the use of a former/maiden name. Id. at 17.0101(c)(4)(D).
. At the time, Ms. Sanchez considered her legal name to be Maria Sanchez Thorpe. (See .PI. Ex. 1051 at 25.) Her driver’s license from 1994 had used that name, and she testified that after getting married she updated “everything”—except her Passport—to use the name Thorpe. (See id.) She never updated her passport because “it never occurred to [her] to change [her] passport” and that it "didn’t seem important.” (Id.)
. This training module was offered to examiners beginning in May 2015. (Doc. 410 at 208.) One slide of the presentatipn correctly informed examiners that customers are not eligible to receive free voter ID unless they have "none of the other forms of ID acceptable for voting.” (Def. Ex. 534 at 4.) However, another slide educated examiners that a driver’s license issued by another state is an acceptable form of photo ID. (Id. at 6.) This is not always true, as this form of identification is only acceptable if the voter registered "within 90 days of the election.” N.C. Gen. Stat. § 163-166.13(e)(8).
. Dr. Stewart did not have access to a database "identifying holders of tribal IDs or out-of-state driver’s licenses.” (Doc. 419 at 22 n.6.) Therefore, registered voters who only possess these forms of acceptable ID appear as no-matches in Dr. Stewart’s analyses.
.Defendants had identified several flaws in Dr. Stewart’s methodology. For example, they argued that Dr. Stewart’s failure to include the "Driver_Hist” table from the DMV database ("SADLS”) led him to include at least 38,801 voters on his no-match list even though the "Driver-Hist” table indicated they had an unexpired, DMV-issued ID. (Doc. 391 at 14; Pi. Ex. 891 at 14 n.26.) By using the "Driver-Hist” table, Dr. Stewart was able to make additional matches. (PL Ex. 891 at 14 n. 26.) A substantial number of additional matches were able to be made on account of the "refined matching criteria.” The updated criteria reduced the size of the no-match list by 47,837 (272,700—224,863). (PI. Ex. 891 at 19 (tbl. 11).) By race, the updated criteria reduced the number of African Americans on the no-match list by 14,988 (98,458—83,470). As a percentage of registered voters, this reduced the percentage of African Americans who could not be matched from 6.8% to 5.7%. (Id.) As for whites, the refined criteria permitted 28,876 (145,220—116,344) whites to be matched. (Id.) That reduced the percentage of whites who could not be matched from 3.2% to 2-.5%. (Id.)
. Dr. Stewart did not include Hispanics as a separate group in his no-match analysis. (PI. Ex. 891 at 19 (tbl. 11).)
. Both States define an "inactive” voter substantially the same. (Doc. 408 at 66.) In both States, an inactive voter can present at the polls and vote if certain conditions are satisfied. (Id. at 131-32.) Dr. Stewart’s primary reason for including inactive voters here, despite excluding them in South Carolina, is that they are, regardless of status, registered voters and are able to vote. (Id. at 156-57.)
. There is an additional distinction between Dr. Stewart’s no-match analysis in South Carolina and here. In South Carolina, Dr. Stewart excluded individuals that were flagged as having received a license in another State on the logic that they were less likely to be a resident of South Carolina. (Doc. 408 at 46-47, 90-91.) Here, however, Dr. Stewart permitted such persons to appear on the no-match list. (Id. at 90-91.)
. At trial, Defendants used exhibit 504 to make the comparison to South Carolina, without objection. Dr. Stewart’s no-match analysis in that exhibit was limited to South Carolinians who could be matched to having a "valid driver's license/ID” card. (See Def. Ex. 504 at 36 (tbl. 4).) It did not include other acceptable forms of ID. (Id.) Dr. Stewart later supplemented this analysis with a no-match list that took into account “military IDs and passports.” (See Def. Ex. 311 at 33 (tbl. 11).) Even though a copy of Defendants’ exhibit 311 was given to the court, it does not appear to have been moved into evidence. So, the court does not rely upon it. It bears noting for the sake of comprehensiveness, however, that Dr. Stewart's updated no-match list from South Carolina (reflected in Defendants' exhibit 311) nevertheless exceeds his December 2015 no-match list for North Carolina. After taking other acceptable forms of ID into consideration, Dr. Stewart was able to match 94,8% of active South Carolina voters (compared to 96.5% of active and inactive voters in NC), including 91,7% of African Americans (compared to 94.3% in NC) and 96,1% of whites (compared to 97.5% in NC). (See PI. Ex. 891 at 19 (tbl. 11)); Def. Ex. 311 at 33 (tbl. 11).) Of course, as noted herein, the magnitude of the difference only becomes more pronounced when the percentage of active voters matched in North Carolina is compared to. the percentage of active voters matched in South Carolina, which is the more apples-to-apples comparison. (See PI. Ex. 1063; Def. Ex. 311 at 33 (tbl. 11).)
.Despite the data provided by Dr. Stewart ■ and the racial disparities that existed in ID possession, the three-judge panel in South Carolina v. United States,
.Dr. Thornton was proffered "as an expert in the field of economic and applied statistical analysis.” (Doc. 338 at 92.) Plaintiffs did not object to Dr. Thornton’s data analysis and statistical analysis. (Id, at 93.)
. Dr. Hood was proffered as an expert "in the field of .American politics ... [and] the areas of electoral politics, racial politics, southern politics, and election administration” without objection. (Doc. 339 at 56-57.)
. Dr. Hood acquired data from every counly in South Carolina except Spartanburg County. (Doc. 410 at 234-35.) He requested the data but was told it did not exist. (Id.) If any reasonable impediment affidavits were completed in that county, they are not reflected in Dr. Hood's analysis.
. Plaintiffs claim Dr. Stewart’s first and second no-match analyses underestimate the true number of voters who lack usable ID because they count voters with suspended licenses as matches. (Doc. 419 at 26.) North Carolina’s voter-ID law does not contemplate whether suspended licenses are acceptable for voting. See N.C. Gen. Stat. § 163-166.13. It is not possible to tell whether a DMV ID is suspended just by looking at it. However, North Carolina law prohibits possession or display of any ‘‘driver’s license, learner's permit, or spe
. If the county wishes, the greeter can also "complete help referral [forms] and route voter[s] to [the] Help Station.” (Def. Ex. 551 at 9.)
. Dr. Burden was proffered without objection as an expert in the analysis of election laws and administration and their effect on voter behavior. (Doc. 331 at 69.)
. Dr. Burden also relied on a second framework centered on the role that habit plays in voting behavior. (Doc. 407 at 48.) In Dr. Bur
. Ms, Lasher did not review the form with any of the organization’s students, nor does she regularly review forms for level of difficulty. (Pi. Ex. 1050 at 65, 69.) Instead, she reviewed it with her organization's program directors, who conduct intake assessments, and sought to give her opinion based on that. (Id. at 69, 76-77.) Based on her feedback from the directors, she claimed that the reasonable impediment form requires a higher level of vocabulary, the small font would make it more difficult for lower literacy read
. Plaintiffs contend that N.C. Gen. Stat. § 163-166.8, which is entitled “Assistance to voters,” prohibits the type of assistance for reasonable impediment voters that Director Straeh says will be provided. (See Doc. 414 at 185-89.) This is incorrect. That statute applies to persons qualified to vote who need “assistance with entering and exiting the voting booth and in preparing ballots” and provides that a voter "who, on account of illiteracy, is unable to mark a ballot without assistance” "is entitled to assistance from a person of the voter’s choice, other than the voter’s employer or agent of that employer or an officer or agent of the voter’s union.” N.C. Gen. Stat. § 163-166.8(a)(2). Most importantly, Director Straeh testified that if a voter asks an election official for help filling out a form, officials are trained to assume it is on account of literacy without requiring proof of illiteracy. (Doc. 414 at 189.)
. Director Strach’s memorandum also instructs CBOEs that the 'voter’s due process rights must be preserved by providing the voter with “meaningful notice and an opportunity to be heard before an unbiased board of elections.” (Def. Ex. 547 at 6.)
. The SBOE represents that it would not refer a case for prosecution unless the voter "intentionally provided false information on a declaration.” (Doc. 410 at 137.)
. During trial, Plaintiffs objected to Defendants’ comparisons with other States, yet Plaintiffs' experts themselves repeatedly did just that in arguing the intent and effect of SL 2013-381. (⅜ PI. Ex. 40 at 8.) Under § 2, the examination is assuredly a very local, practical appraisal. League,
Given the distinctive characteristics of each state's election ecosystem, evidence of other states' laws and practices may be of limited probative value. The Sixth Circuit's opinion in Ohio State Conference of the NAACP v. Husted[,768 F.3d 524 (6th Cir.2014), vacated on other grounds, No. 14-3877,2014 WL 10384647 (6th Cir. Oct. 1, 2014)] dismissed entirely evidence of other states’ practices, stressing the "intensely localized assessment” that the statute requires. The court was right about the need for such an assessment but wrong, in my view, to dismiss evidence of other states’ practices entirely. While the main focus should be on how the challenged practice interacts with social ... conditions within the state, other states’ experience may well shed light on that inquiry. The fact that an ID requirement is unusually strict may be taken into consideration. So too, the fact that a state offers extraordinarily generous opportunities for early voting—in comparison with other states—might be taken into consideration as part of the totality of circumstances, should the state try to reduce that period. Evidence of other states’ practices may be of limited probative value, given the particularized local inquiry that § 2 requires, but should not be disregarded entirely.
Daniel P. Tokaji, Applying Section 2 to the New Vote Denial, 50 Harv. C.R.-C.L. L.Rev. 439, 484 (2015) (footnote omitted). At least one other court has said as much. See, e.g., Frank v. Walker,
. In this case, Mr. Trende was proffered as an expert in "U.S. campaigns and elections, the voting laws at issue in this case, United States demographics, and voting behavior.” (Doc. 339 at 190.) Plaintiffs objected and sought to exclude Mr. Trende under Daubert. (Doc. 271; Doc. 339 at 207.) Plaintiffs, however, did not object to Mr. Trende’s testimony so long as it was limited "as to what the laws are in each of the 50 States.” (Doc. 339 at 209 ("If Mr. Trende simply wants to testify as to what the laws are in each of the 50 states, I don’t think we would have an objection. To the extent that he wants to characterize particular laws as being within the mainstream or outside of the mainstream, he lacks any particular expertise in that subject,”)). In any case, this court concludes that Mr. Trende is qualified to present and organize the laws of the fifty States.
. Dr. Gronke was proffered without objection as an expert in early voting, election administration, political science and research methods, voter behavior and the effect of election reforms on voters. (Doc. 332 at 206.)
. At trial, Dr. Burden attempted to distance himself from his previous article by saying that it only analyzed jurisdictions first implementing early voting. However, the article's explanations for the depressed turnout, expressed before Dr. Burden was retained in this case, ar.e not. so limited. For these reasons, the court finds Dr. Burden's pre-litigation analysis more reliable. See Fed. Rule Evid. 702 advisory committee notes (noting that courts consider “[w]hether experts are ‘proposing to testify about matters growing naturally and directly out of research they have conducted independent of the litigation, or . whether they have developed their opinions expressly for purposes . of testifying’ " (quoting Daubert v. Merrell Dow Pharm., Inc.,
. Broken down by year, 19.83% of African Americans and 25.22% of white voters voted early in 2004; 60.36% of African Americans and 44.47% of whites voted early in 2008; and 64.01% of African Americans and 49.39% of whites voted early in 2012. (PL Ex. 40 at 15). In 2000, 2002, and 2010 the white and African American use of early voting differed by less than one and a half percentage point. (Id. (8.99% African American/7.88% white in 2000, 5.21% white/4.93% African American in 2002, and 28.53% African Ámerican/28.36% white in 2010).) 'in 2006, 11.95% of whites used early voting, compared to 9.19% of African Americans. (Id.)
. Those are the proportional numbers. In terms of actual numbers of early votes cast, there have always been more white tiran African American early votes cast. (PI. Ex. 40 at 22.) Even in 2008, when African American voters used early voting more than in any other election, there were more than twice as many white early voters as African American early voters. (Id.) In the 2012 primary election, there were more than five times as many white early voters as African American early voters. (Id.) The court provides these figures here and elsewhere only for the sake of comprehensiveness but has not relied on them to reach any legal conclusion, for discriminatory intent or otherwise.
.When analyzed as a proportion of first week voters, the African American/white numbers are as follows: 2006 general (8.58%/90.03%); 2008 primary (31.50%/65.27%); 2008 general
.Additionally, in the 2014 general election, by the second day of early voting (day nine on the pre-SL 2013-381 schedule), the cumulative number of African American voters had already surpassed the cumulative total from the first nine days of the seventeen day schedule in 2010. (Def. Ex. 268 at 42-43.)
.Plaintiffs’ expert, Peter Levine, Ph.D., stated in his sur-rebuttal report that young voter turnout decreased from 16.7% in 2010 to 16.4% in 2014, disagreeing with Dr. Thornton’s figures. (PL Ex. 248 at 1.) Dr, Thornton testified at trial that she reviewed this criticism, confirmed her original calculations, and compared her results with those reported on the SBOE website, which were "nearly identical.” (Doc. 338 at 118.) The difference appears to arise because Dr. Levine believes that turnout as a percentage of voting age population ("VAP”) is a better figure to use than Dr. Thornton’s use of turnout as a percentage of registered voters. (See PL Ex. 236 at 15 (tbl. 2b).) Dr. Levine’s method differs from the use of citizen voting age population ("CVAP”) in that he counts non-citizens as potential voters, even though they are not eligible to vote. (See Doc. 338 at 109.) Because Dr. Levine’s figures are not limited to eligible voters (i.e., citizens), the court finds that Dr, Thornton’s figures are a better representation of turnout than Dr. Levine's for the purposes of this case, even though Dr. Thorton’s figures give a narrower window- on the changes. CVAP would be preferable, where available.
.Dr. Levine was proffered as an expert in civic engagement and the effects of voting laws on youth voting without objection. (Doc. 334 at 102.)
. Yet another example of Plaintiffs' reliance on other States’ practices. Indeed, Plaintiffs frequently cited the experience of other States when it was helpful to do so.
. Dr. Stewart organized his internet survey via the Survey of the Performance of American Elections and selected the questions respondents would be asked. (Doc. 332 at 138— 39.) Respondents were recruited through website pop-up ads and similar internet advertisements and were promised points redeemable for prizes for completing the survey, (Id. at 139-41.)
. A decrease in hours in 2014 is not persuasive evidence that early-voting lines will worsen. Session Law 2013-381 requires that a CBOE can reduce hours only upon unanimous agreement, strongly supporting a fact-based inference that such extra hours were unnecessary in that county.
. In 2014, North Carolina was "oversampled”: after surveying 200 North Carolina respondents, an additional 1,000 were also sampled. (PI. Ex. 242 at 84-86.) The oversampling seems to have been at Dr. Stewart's suggestion.
. The survey questions were also open to variable interpretations among respondents, (Def. Ex. 309 at 80.) In addition, the survey did not reveal any statistically significant difference in wait times encountered by African Americans and whites. (Id. at 84-87.)
. It is notable that Dr. Stewart's survey could have asked for identifying information, which would have permitted him to confirm, through information publicly available on the North Carolina SBOE website, whether respondents had in fact voted. But Dr. Stewart made no such effort to do so. (Doc. 332 at 143-44.)
. Respondents were asked: “Approximately, how long did you have to wait in line to vote?” (Pi. Ex. 42 at 74.) The available responses were: "(1) Not at all, (2) Less than 10 minutes, (3) 10-30 minutes, (4) 31 minutes—1 hour, (5) More than 1 hour [with follow-up prompts], and (6) I don’t know.” (Id.)
.Some of the voting lines from 2014 were caused by electronic touchscreen equipment, (Def. Ex. 210 at 6), which Dr. Stewart believes to cause lines, (Doc. 332 at 148-49), and which is set to be phased out by SL 2013-381, § 30.8.
. Another of Plaintiffs' experts, Dr. Allen, relied on Dr. Stewart’s wait-time analysis to try to predict wait times on Election Day in 2016. (PL Ex. 49 at 14.) Dr. Allen’s opinion is vulnerable, in part, because it relied on Dr. Stewart's unreliable analysis. Moreover, Dr. Allen’s analysis merely gave various possible effects based on the numbers pf early voters transitioning to Election Day voting. However, it is unknown how many net voters—if any—will transition. Dr. Allen also failed'to factor into his analysis SL 2013-381’s same-hours requirement, a critical component of the new early-voting schedule. Therefore, Dr. Allen's analysis is of little assistance.
. Plaintiffs submitted the deposition transcripts of sixty-five fact witnesses. At trial, however, Plaintiffs highlighted only a handful of them. The court presumes those were Plaintiffs' stronger witnesses, but it has nevertheless reviewed the transcripts of all fact witnesses.
. These are church-related efforts to engage congregants and provide resources to get them to the polls to vote, including during Sunday early voting.
. Plaintiffs have not provided any evidence that Hispanic voters disproportionately used early voting. (See, e.g., Doc. 346 discussing Hispanics only with regard to SDR, OOP, and pre-registration). In fact, the evidence Plaintiffs' experts provided on racial disparities in the eliminated seven days of early voting do not include Hispanics. (See, e.g., PI. Ex. 40 at 30; PI. Ex. 42 (Ex. 41).) Accordingly, Plaintiffs have failed to show that Hispanic voters have been disparately impacted by SL 2013-381’s change in the early-voting schedule based on disproportionate use.
.The evidence as to young voters was that they did not focus on elections until closer to Election Day, but, like other groups, there was no evidence that young voters will not benefit from the additional night and weekend hours created by SL 2013-381.
. Plaintiffs’ evidence of voters waiting was largely anecdotal and not representative of any systemic issue. (E.g„ Doc. 330 at 110-12 (Isabel Najera: waited "around two hours,” but her delay was attributable to a poll worker’s investigation after discovery that she was not listed on the voter roll); PL Ex. 792 at 13-14 (Quisha Mallette: UNC law student who "had to sit in there for a little while” while waiting to vote provisionally because she did not switch her registration to her county of residence); PI. Ex. 798 at 19, 25 (Tawanda Pitt: did not try to early vote and left polls on Election Day after waiting thirty-five minutes on two occasions).)
. Whether certain States should be classified as offering SDR or EDR is subject to interpretation and coding. (Def, Ex. 270 at 29-31.) However, it was undisputed at trial that the majority of States do not offer SDR or EDR. (Doc. 331 at 101 (Plaintiffs expert, Dr. Burden, conceding that a majority of States do not offer SDR)).
. At the time of his report, Defendants' expert Sean Trende put this number at thirty-seven, (Pi. Ex. 270 at 29-32.) In that report, Vermont was coded as having neither EDR nor SDR, but appears to have enacted some variation since. Vt. Stat. Ann. tit, 17, § 2144a(4) (effective January 1, 2017); (Doc, 340 at 15 (Trende: saying that Vermont enacted SDR "a few weeks” before trial); see also McCrory,
.Ohio had "Golden Week,” when normal registration overlapped with early voting for five days. (Def, Ex. 270 at 31-32.)
. Again, Dr. Gronke is misinformed. North Carolina never had EDR.
. At trial, Dr. Stewart conceded the accuracy of Dr. Thornton's churn analysis. (Doc. 342 at 126-27.) However, he refused to concede that her figures undermine his conclusions. (Id.) Insofar as Dr. Stewart’s opinions appear to be impervious to new facts or data and he was content to present what he must have known was, charitably put, an incomplete analysis, the court views his opinions with a skeptical eye. See, e.g., United States v. Williams,
. The large increase in African American participation in 2008, when State spending ■was $22 million, compared to 2012, when State spending was almost $100 million, is strong evidence that the novelty of the candidacy of the first African American candidate for the presidency played a significant role in turnout. (Def. Ex. 270 at 10-11.)
. Dr. Stewart considered only those using SDR to become new North Carolina registered voters. (PL Ex. 42 at 43-47.) Further, Dr. Stewart focuses on those who registered during the early-voting period, rather than on those who actually registered using SDR. These two numbers are not necessarily the same. For example, in 2002, 2,326 African Americans registered during the early-voting period. (Id. (Ex. 31).) Because SDR did not exist, they .clearly registered via the traditional method. Accordingly, while the court accepts that those who register during the early-voting period may be more likely to prefer SDR, which allows them to vote, over non-SDR, which does not, Dr. Stewart's data do not tell us how those who registered during the early-voting period registered. (Id. at 46-47.)
. In raw numbers, far more whites used SDR during these two years. (PL Ex. 42 at 46.) This fact is not considered in the calculus, however, as it is the disproportionate use that is at issue.
. Moreover, in the 2004 presidential election (before SDR), African American voters were still disproportionately likely to register during the early-voting period even though it would not enable them to vote in the upcoming election. (Pl. Ex. 42 (Ex. 31).) It cannot be that these African American registrants were habituated to using SDR, since SDR did not exist.
. Cf. Miss. State Chapter, Operation Push v. Allain,
. And, as noted, even after SL 2013-381, a voter who has moved within the county can still update his or her registration during early voting or on Election Day (i.e., after the 25-day registration cut-off) and vote, N.C. Gen. Stat. § 163-82.6A(e).
. Among these registrants, 374 registered after the deadline but before either the old or new early-voting period began. (PL Ex. 242 at 163.) An additional 343 registered after early voting ended but before Election Day arrived. (Id.) Such registrations would not have enabled a citizen to vote before or after SL 2013-381 and are thus not relevant to the analysis.
. With these figures and others, Plaintiffs attempt to present the percentages to say that African Americans were 11% more likely to register during the early-voting period. However; as the Seventh Circuit has earlier explained, such mathematical manipulations conceal the true inquiry:-
We have given the percentages of persons who have these documents. Plaintiffs express the figures differently, giving the percentages of persons who lack the documents (2.4% of whites, 4.5% of blacks, and 5.9% of Latinos), then dividing one percentage by another to yield an expression such as "registered Black voters in Wisconsin were 70% more likely than white voters to lack a driver’s license or state ID.” That is a misuse of data. Dividing one percentage by another produces a number of little relevance to the problem. If 99.9% of whites had photo IDs, and 99.7% of blacks did, the same approach would yield the statement "blacks are three times as likely as whites to lack qualifying ID” (0.3 4- 0.1 = 3), but such a statement would mask the fact that the populations were effectively identical. That’s why we do not divide percentages.
Frank v. Walker,
. The proportion of the African American North Carolina citizen voting age population (“CVAP”) in 2014 is not yet known. In 2013, however, African American North Carolinians were 21.88% of the North Carolina CVAP. (Def. Ex. 309 at 77.) This figure is also nearly identical to the proportion of African American registrations (22.630%) during the 2014 early-voting period.
. There is a further concern about the reliability of these figures. The president of Plaintiff North Carolina Chapter of the NAACP, the Reverend Dr. William Barber II, gave a speech in October 2014, just before the general election, imploring audience members at the State Chapter’s annual banquet to take people to the polls who were not registered and demand they be given a provisional ballot:
Also, if people did not get registered we want you to take them to the polls anyway. Federal law requires that they have to be given a provisional ballot. ... If they didn’t get registered and can’t register in early voting, we want you to take them to the polls, we want them to get the provisional ballot, we want them to be told the ballot would not be counted because they—we do not have early voting and same-day registration, and then we want you to get that name so next year, when we’re in court, we can present a list of names of people who have been denied their right to vote ... because of the denial of same-day registration and early voting.
(Def. Ex. 67 at 37-38.) Dr. Barber testified at trial that he hoped those at the banquet followed his instructions. (Doc. 329 at 123-24.) Under federal and State law, voters who know they are not registered and not eligible to vote are not entitled to a provisional ballot. See 52 U.S.C. § 21082(a); N.C. Gen. Stat. § 163-166.11. The NC NAACP later issued a press release modifying the request to urge only those who believe they are registered voters to request a ballot. (Def. Ex. 65 at 2.) In the end, this tactic may have increased the numbers of persons who tried to register during early voting as well as-those who demanded provisional ballots and tried to vote OOP.
, In raw numbers, around four to five times more "older-voters” than "young voters” used SDR in each of these general elections. (Pi. Ex. 50A at 11-12.)
. As a three-judge panel in a preclearance case, applying the VRA’s § 5 retrogression standard with the burden on the State, has explained,
[A] change is not retrogressive simply because it deals with a method of voting or registration that minorities use more frequently, or even because it renders that method marginally more difficult or burdensome. Rather, to be retrogressive, a ballot access change must be sufficiently burdensome that it will likely cause some reasonable minority voters not to register to vote, not to go to the polls, or not to be able to cast an effective ballot once they get to the polls,
Florida v. United States,
. Plaintiffs produced evidence that Hispanics disproportionately used SDR, but the evidence presented was much more limited than that for African Americans. Plaintiffs’ expert Allan Lichtman, Ph.D., testified as to some disparate use numbers regarding Hispanics, (Doc. 333 at 118), and included some use statistics in a rebuttal report, (PL Ex. 245 at 23). He did not include any data from 2014. (Id.) By contrast, Defendants provided evidence that Hispanic turnout increased from 2010 to 2014. (See, e,g„ Def. Ex. 309 at 62-67, 76-77.)
. At trial Mr. Trende testified that Utah does not permit OOP voting. However, it appears that Utah will count ballots cast in the wrong precinct so long as they are cast in the correct county. Utah Code Ann. § 20A-4-107(l)(b)(iii), (2)(c); (Def. Ex. 2 (Trende's initial report: coding Utah as offering OOP)). However, it went undisputed at trial that the majority of States, many of which were previously covered by § 5, do not offer OOP. See, e.g„ Ala. Code §§ 17-9-10, 17-10-2(b)(2); Fla. Stat. Ann. § 101.048(2)(b); Miss. Code Ann. § 23-15-571(3)(a), (d); S.C. Code Ann. § 7-13-830; S.D. Codified Laws § 12-20-5.1; Tex. Elec. Code Ann. § 63.011(a); Va. Code Ann. § 24.2-653(B).
. For every year that OOP voting was permitted, white registered voters cast more incorrect precinct ballots than African American voters. (PI. Ex. 42 (Ex. 49).) As with earlier analyses, the court does not consider this fact.
. Because Plaintiffs’ data on the number of OOP provisional ballots cast excluded 35.4% of the records in the provisional ballot file (the race of the voter was not indicated), the court followed Plaintiffs’ instruction and multiplied each number in Table 14 by 1.55%. (PL Ex. 42 at 98 n.126 ("[T]he proper correction to apply is to multiply each number by 1/.646, or 1.55.”).)
. To the extent that the seven individuals could not be identified because they were not registered, SDR could not have saved them because they were Election Day voters, and SDR has never been offered on Election Day in North Carolina (that would make it EDR).
, Dr. Hofeller was proffered without objection "as an expert in demography, census geography, and database building involving voter registration and turnout information, voting and registration patterns and also the same patterns based upon race and partisan affiliation.” (Doc. 340 at 140.)
. Hispanics were also more likely to cast OOP provisional ballots prior to SL 2013-381. (PI. Ex. 245 at 24). The OOP provisional use data for Hispanics did not cover 2014. (See id.) In the 2008, 2010, and 2012 general elections combined, young voters cast 919,-246 total ballots, of which 3,221 (0.35%) were OOP ballots. (See PL Ex. 236 at 30-32, 35-38.) By comparison, older voters cast 10,651,-288 ballots in those elections, of which 14,697 (0.138%) were OOP ballots. (See id.) In the 2014 general election, after SL 2013-381, young voters cast 102,775 votes, of which 196 (0.191%) were OOP ballots. (See id.) Older voters cast 2,737,540 votes in that election, of which 1,459 (0.053%) were OOP ballots. (See id.)
. Dr. Hillygus was proffered without objection as an expert in American political behav- ■ ior, including political behavior in connection with pre-registration laws and survey methods. (Doc. 331 at 188.)
. Yet another example of Plaintiffs’ experts relying on practices of other States to opine on effects in North Carolina.
. A difference-in-difference model attempts to control for (hold constant) potential con-founders that vary between States across time and across elections. (Doc. 331 at 192-93.)
. A lagged model attempts to determine a lower bound and provide a more conservative estimate using stricter assumptions; Dr. Hilly-gus deemed it appropriate if one were to assume that States with already high youth voter turnout were more likely to adopt-preregistration laws. (Doc. 331 at 195.)
. Because Dr. Hillygus’s difference-in-difference model depends upon CPS data, it is at least in part vulnerable to the over-reporting problems that are well established to exist within the CPS survey. (Doc. 331 at.135-36.) However, this concern is ameliorated by Dr. Hillygus’s Florida study, which was based upon voter files and is consistent with the results of the difference-in-difference model. (PL Ex. 235 at 23.)
.By saying an individual had the “opportunity to pre-register,” Dr. Hillygus appears to mean that, due to the individual's birthday, pre-registration was the only available means of registration for that individual leading up the 2008 presidential election. (PL Ex. 235 at 22.) For example, Dr. Hillygus includes within the "opportunity to preregister” group individuals who were eligible to pre-register during the 2008 election but "waited until they were older to register traditionally,” and includes within the "opportunity to register traditionally” group those who “pre-regis-tered when they were younger, outside the context of a presidential election.” (Id.) She used a "fuzzy regression discontinuity approach” to account for this factor (Id.)
. Plaintiffs criticize proponents of SL 2013-381 for not testifying at all at trial and invite the court to take note of their absence. However, members of the General Assembly enjoy a qualified legislative privilege. The parties engaged in significant proceedings during this litigation oyer the scope of that privilege, and the court allowed certain discovery to take place. (Doc. 93.) The court will note any absence of justification when the legislation was debated and passed, but it will not infer
. According to former Director Bartlett, this SBOE discretion to keep the polls open satisfied the concern he had about the removal of discretion from CBOEs. (Doc, 160-3 at 151.)
. In stating this test, the Fourth Circuit agreed with the Sixth Circuit’s opinion in Ohio State Conference of NAACP v. Husted,
. Legitimate interests served by a decision or rule have been found to be relevant in other statutory race discrimination claims. Cf. Tex. Dep’t of Hous. & Cmty. Affairs v. Inclusive Cmtys. Project, Inc., — U.S. -,
. Worse, the senator was the Senate President Pro Tempore and added that "it should be harder to vote—as it is in Africa.” Brown,
. It appears that the case was dismissed after some type of settlement that left in place the law’s elimination of the overlap of five days of registration with early voting during Golden Week. A new set of plaintiffs have filed suit challenging various provisions. See Ohio Democratic Party v. Husted, No. 2:15cv1802 (S.D.Ohio 2015).
. Ohio had adopted early voting in 2005 in response to problems in the 2004 election that caused voters to wait from two to twelve hours to vote. Id. at 530-31.
. On the Anderson-Burdick claim, the court affirmed the district court's finding that the burden was "significant” but not "severe” as not clearly erroneous "given the extensive evidence in the record of the burdens African American, lower-income, and homeless voters will face in voting, absent the times eliminated by SB 238 and Directive 2014-17.” Hust-ed,
. Although Plaintiffs showed that pre-regis-tration increases turnout generally, the evidence demonstrated that its benefits are race-neutral. There is no evidence in this case that the system of signature attestation that preceded the voter-ID requirement fostered minority political participation.
. See also Shelby Cty.,
. As noted in the findings of fact, the correlation itself is far from clear, and significant evidence, besides the 2014 data, tends to rebut the inference of causation.
, Dr. Leloudis was proffered without objection as an expert in the history of the United States and North Carolina. (Doc. 338 at 15- ' 16.) '
. As analyzed further infra, Charles T. Clot-felter, Ph.D., testified concerning the history of educational disparities in North Carolina’s public schools,
.There were various other provisions of the law, including a prohibition on voter intimidation and public disclosure of campaign financing. (See Pi. Ex. 230 at 10-11.)
. Dr. Leloudis’ testimony and expert report do not focus on legislative districts after Gin-gles. The court notes, however, that North Carolina’s district maps continued to be a source of litigation after the 1980s, most notably with regard to North Carolina’s Twelfth Congressional District. See, e.g., Easley v. Cromartie,
. Justices Thomas and Scalia concurred in the judgment only, adhering to their opinion that § 2 does not countenance vote dilution claims. Bartlett,
. The poor obtain income from multiple sources, including wages and various welfare programs; there are "few racial differences in welfare receipt.” (PI. Ex. 45 at 14-15.)
. With regard to those who are employed, Dr. Burden claimed that North Carolina law does not require employers to give employees time off to vote. For support, he cites a website of the League Plaintiffs. (Pi. Ex. 229 at 12 & n.54.) However, Dr. Burden and the website both ignore a North Carolina statute criminalizing retaliation against employees who wish to vote. See N.C. Gen. Stat. § 163-274(a)(6). At least one secondary source has specifically recognized this statute. See Eugene Volokh, Private Employees' Speech and Political Activity: Statutory Protection Against Employer Retaliation, 16 Tex. Rev. L, & Pol. 295, 336-37 (2012).
. The poor have less education than the non-poor, and African Americans. are more likely to be poor, but among the poor without college degrees, there are no disparities by race. (PI. Ex. 45 at 10-11.) As Cynthia Duncan, Ph.D., a sociologist who studies poverty, testified at trial, ”[T]he educational achievement between [poor] blacks and whites only differs statistically significantly at the college level.” (Doc. 337 at 93.)
. Dr. Burden claims that North Carolina discriminates against minorities through its criminal justice system. (PI. Ex. 229 at 13.) His observations about disparate prison statistics are not linked to discrimination or to any proof of discriminatory law enforcement, nor does he explain how such statistics interact with SL 2013-381. He also charges that North Carolina's felon disenfranchisement law disproportionately affects African Americans, (id.), but he fails to note that this law was passed by a bi-racial Republican Party as part of an omnibus election bill designed to help African Americans vote. Act of Mar. 8, 1895, ch. 159, § 13, 1895 N.C. Sess. Laws 211, 217; (PI. Ex. 230 at 9-11.)
. White turnout still exceeded African American turnout in 2014 by .8% (40.5% to 39.7%), but that represents the smallest midterm voting differential for the years the court has been provided data. (Pi. Ex. 242 at 161 (App’x U).) The differential was 10.7% in 2006 (34.2% to 23.5%) and 3.4% in 2010 (39.6% to 36.2%)—when the removed mechanisms were in place. (Id.) Of course, African American turnout exceeded white turnout by 5,5% in 2008 (68.5% to 63%) and 6.8% in 2012 (67.2% to 60.4%). (Id.)
. Many of the poverty statistics set forth above were provided by Dr. Duncan.
. The interviewees were not randomly selected. On cross-examination, Dr. Duncan preferred not to disclose how the interviewees were selected because her work was in conjunction with "some nonprofits” who helped select the interviewees, (Doc. 337 at 94-96), and the court did not require her to do so.
. As Dr. Duncan explained, poverty is strongly correlated with marital status, with the unmarried more likely to be poor than the married. (Doc. 337 at 97-98.) This fact is true nationally. (Id, at 99.) No Plaintiffs’ witness linked the burdens of this subset to official discrimination.
. ,(E.g., PI. Ex. 681 at 44 (“[S]o if we're looking at just poor families, there were no differences between our African-American moms and our non-African-American moms."); id. at 48 (“So what we have here as far as just comparing, again, African-American moms and non-African-American moms overall _”); id, at 54 (“So all of these things together [the four provisions of SL 2013-381 she addressed] are going to make it harder especially for the poor -African-American moms, at least that's what we have here ....'') (emphasis added)); Pi. Ex. 509 (examining access to vehicle for “all mothers” by race); PL Ex. 510 (examining access to technology for “all mothers” by race); PI. Ex. 511 (examining literacy level for "mothers” by race); PI. Ex. 512 (examining residential instability for "mothers” by race).
. There were only 1,930 incorrect precinct provisional ballots cast on Election Day in 2014, (PI. Ex. 689.) Thus these 842 OOP provisional ballots from two counties represent 43.63% of all such ballots.
. An additional problem is that such Mary-landers cannot be said to have suffered from the effects of historical discrimination in North Carolina.
. Further, although of lesser importance, Dr. Summers pretended to mimic various types of North Carolina government employees, but she had absolutely no experience working in any of those roles or knew what they provided. (Doc. 331 at 42-43.)
. Dr. Thornton makes a similar point. To the extent low literacy voters tend to be poor, they tend to include those who apply for government benefits. Based on her expertise as a labor economist, she explained the process and documentation needed for a person to apply for welfare benefits. (Def. Ex. 309 at 49-52.) While the court sustains Plaintiffs’ objection to her testimony on any qualitative comparison of the processes, it is commonsense that North Carolina’s one-page voter registration form cannot seriously be more intellectually demanding than that of gathering the relevant documents and applying for governmental benefits. Dr. Summers, in response, admitted as much but explained that low literacy voters can overcome the "complex and burdensome” welfare application
. Plaintiffs point to one ad from Governor MtCrory’s gubernatorial campaign in 2012. In that ad, former sheriff of Wilson County, Wayne Gay, stated “Once a sheriff, always a sheriff. Once a Democrat, always a Democrat. Never voted any other way. Until now. North Carolina is a mess. Not getting better. Our only hope is Pat McCróry. Outsider. Fresh blood. Did great as mayor of Charlotte. He’ll do great for our state. Or I’ll hunt him down.” Mark Binlcer, Black Caucus head criticizes McCroy ad featuring former sheriff, WRAL. COM (Sept. 25, 2012), http://www.wral.com/ news/state/nccapitol/blogpost/l 1587710/.
Plaintiffs claim that Gay’s statement that "[o]ur only hope is Pat McCrory" begs the question of who is “our.” (PI. Ex. 238 at 18-19.) Plaintiffs have failed to show that “our” means anything other than North Carolina voters generally.
. As noted above, North Carolina's redistricting scheme is currently subject to three lawsuits. See cases cited supra note 138.
. Both before and after SL 2013-381, voters who "registered to vote by mail on or after January 1, 2003, and [have] not previously voted in an election that includes a ballot item for federal office in North Carolina” must, "in order to cast a mail-in absen
. For example, New York, one of the Nation's most populated States containing former § 5 jurisdictions, has no early voting whatsoever.
. North Carolina law disqualifies felons from voting unless their rights of citizenship havé befen restored as prescribed by law.' N.C. Gen. Stat. § 163-55(a)(2).
. When SDR was in place, CBOEs had to make a preliminary determination of an SDR applicant’s qualifications within two business days of receiving the registration. 2007 N.C. Sess. Law 253, § 1.
. If a notice has been returned undeliverable “within 25 days before the election,” then the applicant “may vote only in person in that first election and may not vote by absentee ballot except in person [as provided under N.C. Gen. Stat. § 163-227.2]” under procedures developed by the CBOE to obtain the correct address and assure that the person votes in the proper place and in the proper contests. N.C. Gen. Stat. § 163-82.7(g)(2).
. A first or second notice returned undeliverable after an applicant votes requires that the applicant be treated as an inactive registered voter and undergo a separate confirmation mailing process. N.C. Gen. Stat. § 163— 82.7(g)(3). The confirmation mailing process is part of "list maintenance,” which entails confirming that a voter on North Carolina's voting rolls is still eligible to vote. (Doc. 340 at 209-10.) Unlike with the mail verification process, a confirmation mailing is forwarda-ble mail. N.C. Gen. Stat, § 163-82.14(d)(2); (see also Doc. 340 at 209). The confirmation mailing process, however, requires a voter to return the mailing to the appropriate CBOE, not simply that the mailing be delivered. N.C. Gen. Stat. § 163-82.14(d)(2); (see also Doc. 336 at 115). An alternative to the confirmation mailing process for returning a'voter to active status is for the voter to appear to vote in a subsequent election and give oral or written affirmation of continuous residency within the county. N.C. Gen. Stat. § 163— 82.14(d)(3); (see also Doc. 336 at 115). This confirmation mailing process is not at issue in this case.
. Opponents of the bill were apparently unáware of, or unwilling to acknowledge, this report. (See, e.g,, Doc. 134-4 at 220 ("Same day registration, I don’t know of a single problem we’ve had with that_”).)
. Former Director Bartlett claimed in the SBOE’s 2009 memo that “[a]s long as the second notice is returned prior to canvass, then the one-stop registrant’s registration can be denied and their in-person absentee ballot appropriately disapproved.” (PI. Ex. 56 at 6.) Bartlett’s claim that the registrant’s registration can be denied is incorrect. By the can-, vass day, the registrant has either voted or not. If the registrant has voted, then failing mail verification will merely make his regis-, tration inactive and subject him to the confirmation mailing process. See N.C. Gen. Stat. 163-82,7(g)(3); (Doc, 340 at 208-09). Bartlett’s claim that CBOEs can simply reject the SDR absentee ballot on the canvass date is also contrary to Strach’s testimony, (Doc. 336 at 157 (saying that absentee ballots not challenged by Election Day are not retrievable)), and N.C. Gen. Stat. § 163-89.
As a general rule, challenges to absentee ballots (including early voting and SDR ballots) must be made on Election Day. See N.C, Gen. Stat, § 163-89(a) (“The absentee ballot of any voter may be challenged on the day of any statewide primary or general election or county bond election beginning no earlier than noon and ending no later than 5:00 P.M., or by the chief judge at the time of closing of the polls as provided in G.S. 163-232 and G.S. 163-258,26(b).”) Section 163-89(a) provides a later challenge deadline for the absentee ballots of voters received by CBOEs pursuant to N.C. Gen. Stat. § 163— 231(b)(ii) or (iii), This appears to be mislabeled, as § 163-231(b) has no (ii) or (iii) subsections, and thus the reference to § 163-231(b) (ii) and (iii) appears to be to § 163-231(b)(2)b & c. Section 163-231(b) (1) provides, in sum, that the CBOE must receive absentee ballots by 5:00 p.m. on Election Day. Section 163-231(b)(2), however, permits certain absentee ballots that are received at a later time. Under § 163-23 l(b)(2)b, absentee ballots are to be accepted so long as they are postmarked by Election Day and received by the CBOE no “later than three days after the election by 5:00 p.m,” Under § 163-231(b)(2)c, certain military absentee ballots are timely if received by the CBOE no “later than the end of business on the business day before the canvass.”
Accordingly, absentee ballots postmarked by Election Day and certain military absentee ballots appear to be the only ballots that can be challenged after Election Day under § 163-89(a). Those ballots “may be challenged no earlier than noon on the day following the election and no later than 5:00 p.m. on the next business day following the deadline for receipt of such absentee ballots.” Id. § 163-89(a), Therefore, given the dead
In sum, Bartlett’s claim is contrary to the evidence presented in this case and to N.C. Gen. Stat. § 163-89. Although hearings for all challenges are set on the canvass date, N.C. Gen. Stat. § 163-89(e), challenges to absentee early voting ballots, including SDR ballots, must be filed before that date—on Election Day. But even if Bartlett were correct, there would still be insufficient time. The 2009 SBOE report authored by Bartlett assumed CBOEs could make sua sponte challenges at the canvass, yet still found that "there was not enough time between the end of one-stop voting (and SDRs) and the canvass day to ensure that verification mailings completed the mail verification process.” (PL Ex. 56 at 5.)
. Plaintiffs rely on two SBOE reports on mail verification rates for the 2010 and 2012 general elections and a Guilford CBOE report on mail verification in the 2012 general election. (Id.)
Plaintiffs also rely on testimony Dr. Licht-man attempted to offer in Plaintiffs’ rebuttal case on the last day of trial, in which he concluded that 3.63% of all 2014 non-SDR registrants voted but did not complete mail verification by April 2015. (Doc. 342 at 148.) Defendants objected to Dr. Lichtman’s rebuttal testimony when it was offered. The court expressed reservations about allowing it but reserved ruling. (Id at 146-47.) The parties have since briefed the motion. (Docs. 324, 325, 351.) The court now concludes that Dr. Lichtman's testimony should not be admitted.
There are several problems with Dr. Licht-man’s late-disclosed testimony. First, Dr. Lichtman claims to respond to Mr. Neesby’s analysis in the SBOE's May 2015 memorandum (Def. Ex. 16) which was available to Plaintiffs ahead of trial, and Plaintiffs decided to have Dr. Lichtman complete his analysis at least ten days before Dr, Lichtman’s rebuttal testimony, yet Plaintiffs made no effort to disclose it to Defendants. (Doc. 342 at 185.) By attempting to offer it on the last day of trial, Defendants were severely prejudiced and had no opportunity to examine the accuracy of Dr. Lichtman’s conclusions or the methodology he used. Second, the need for
. Plaintiff Intervenors' challenge to Mr. Neesby -is limited to Exhibit BN-3 and his analysis on the mail verification failure rates of pre-registrants. (Doc. 328.) Plaintiff Inter-venors do not seek to exclude Mr. Neesby’s voted-but-failed analysis contained in Defendants’ Exhibit 16. (Id.)
. Plaintiffs have pointed out that this is possible even for those registrations submitted before the twenty-five day cut off (i.e., registration immediately before the twenty-five day cutoff under N.C. Gen. Stat. § 163— 82.6(c)). This is true—there are instances where mail verification does not run its course even under tire twenty-five day schedule. But the year-round registration system is designed to avoid this result, and SDR’s proximity to Election Day clearly made this problem much worse. This was not merely theoretical.
. It does not appear that the data in Defendants’ Exhibit 16 had been compiled at the time SL 2013-381 was adopted.
. Under State law, these persons -are deemed "ineligible” to vote unless and until they correct their registration. See supra note 160 (discussing the process for voters on the confirmation mailing list to vote).
. Under North Carolina law, voters must ' be registered for a precinct and may have their vote count only for candidates for that precinct. (Doc. 336 at 227-28.)
. In fact, mail verification appears to be a staple of voter identification and election integrity employed by other States. See, e.g., Colo. Rev. Stat. Ann. § 1-2-509; Del. Code Ann. tit. 15, § 2014; Me. Rev. Stat. Ann. tit. 21-A, § 122; Mo. Ann. Stat. § 115.155; 17 R.I. Gen. Laws. Ann. § 17-9.1-25; W. Va. Code Ann § 3-2-16. How States accommodate mail verification in the context of. SDR or EDR reflects States' policy choices. For example, Wisconsin, with expansive voter registration, appears to allow EDR in a fashion that counts the votes of those who later fail mail verification but simply precludes those voters from voting again until they address the problem; such persons may be referred for prosecution. See Wis. Stat. Arm. §§ 6.29, 6.55, 6.56. Colorado, by contrast, does not consider a voter to be registered until mail verification occurs, apparently in order to comply with the NVRA’s prohibition from removing a registered voter from the rolls absent certain notice. Colo. Rev. Stat. Ann § 1-2-509(3); .see, e.g., Common Cause of Colorado v. Buescher,
. Moving the canvass date back a sufficient distance would not be without its own challenges. (Doc. 336 at 156-57) (Strach: testifying that "in order for the, mail verification system ... to work, I am not sure how far it [would have to be moved back]. You could possibly' be into December or later, and then we would have other issues with seating elected officials .... ”).)
. Further, to the extent a registrant can fail mail verification due to postal error, (PL Ex. 56 at 5), having only one mailing would increase the risk that such an error would erroneously disenfranchise the voter. With two mailings, this error must be repeated in order to affect the voter.
. The total number of provisional ballots cast (including Election Day voting) for "no record of registration" actually decreased from 2010 to 2014 (9,927 to 7,765), but this disparity is attributable to a decrease in "no record of registration” provisional ballots being cast on Election Day. (Pi. Ex. 689.) These Election Day provisional ballots are not probative of the effect of SDR's removal given that SDR was never available on Election Day.
. It is not entirely clear, and the parties have not established, whether an unreported
. If a State chooses this option, it is not actually required to permit the unreported mover to vote in the current election at his new precinct. See 52 U.S.C. § 20507(e)(2)(A)(ii)(II). Instead, the State need only permit ■ the unreported mover to "correct [his or her] voting records for purposes of voting in future elections.” Id. Whether or not the unreported mover can actually cast a ballot in the current election at’ his new precinct is to be determined by State law, Id.
. The NVRA provides that so long as “State law permits the registrant to vote in the current election upon oral or written affirmation by the registrant of the new address at” either their former or new precinct, then "voting at the other locations ... need not be provided as options.” 52'U.S.C. § 20507(e)(2)(B).
. Further, even if the State had the authority to address the issue, there are at least two logical reasons to remove SDR but permit unreported movers to update their address so close to Election Day. First, there were far more SDR-registrants than unreported movers, For example, in 2012, Plaintiffs’ expert Dr. Gronke reports there were 246,895 SDR registrants, (Pi. Ex. 40 at 35 (Ex. 14)), corn-pared to 9,720 unreported movers, (Pi, Ex. 42 at 95). Second, the unreported mover provision assists, those who move, and African Americans move more frequendy than whites. (See, e.g., PL Ex. 45 at 17.) African Americans cast a disproportionate share of unreported mover provisional ballots in 2010 and 2014. (PI. Ex. 689.) In other words, there is absolutely no discriminatory purpose that can be inferred from removing SDR but leaving the unreported mover provision.
.There was also evidence that certain ineligible SDR-voters tainted the outcome of a close municipal election in the town of Pembroke in November 2013 that caused the SBOE to order a new election. (Doc. 341 at 50-51.) According to Strach: "one of the reasons ... that the new election was called was because there was a concern that ineligible people were being brought to the one-stop sites to register and vote.” (Id. at 51;) For example, a group of individuals presented a common lease and voted via SDR even though they were not actually residents at the address on the lease. (Id. at 50-51.) The poll worker should not have allowed the individuals to vote via SDR, given that their lease was not an acceptable HAVA document. (Id.) The incident, nevertheless, illustrates the value of mail verification, especially given that poll worker (often volunteers) error does occur. (Def. Ex. 816 at 43-44.) Since the ineligible
, These SDR voters failed even though they were required to provide at least a HAVA document bearing their name and address, see 2007 N.C. Sess. Law 253, § 1.
. In 2003, the General Assembly enacted a law “to ensure” that North Carolina law complied with the requirements of HAVA. 2003 N.C, Sess. Law 226, § 1. This enactment had bipartisan support, but apparently not as to the interpretation the Democratically-controlled legislature later sought to attribute to it.
. Under the statute, unreported movers voting at their new precinct or a central location could not have cast these provisional ballots, as the statute calls for them to receive regular ballots. N.C. Gen. Stat. § 163-82.15(e); (Def.. 368 at 59-60).
. There were 10,474 unreported movers in 2006, 11,064 in 2008, 7,410 in 2010, and 9,720 in 2012. There were 3,115 OOP voters in 2006, 6,032 in 2008, 6,052 in 2012, and 7,486 in 2012. (Pi. Ex. 42 at 95 (tbl. 12).)
. Presumably, this is why Plaintiffs' witness, Nadia Cohen, discussed below, still had not registered to vote after she graduated from high school, since she was about to move to a different county for college.
. By way of comparison, in measuring the nature of the burden, courts examining claims under § 5 have acknowledged that a burden must be material. Florida,
In similar fashion, within the context of § 2, courts have acknowledged that changes causing inconvenience are not all actionable. See, e.g., Glover v. S.C. Democratic Party, No. C/A 4-04-CV-2171-25,
. Notably, the United States does not make a § 2 results claim against the current version of North Carolina’s ID law. (Doc. 419 at 73 n.26.) The United States’ only ID-related claim is that SL 2013-381 was passed with discriminatory intent.
. No-fee voter IDs follow the same expiration rules as other non-operator IDs. "(Pi. Ex. 1047 at 31.) If the voter is sixty-five or older, the ID expires five years later on the voter’s seventieth birthday. (Id.) If the voter is younger than sixty-five, the ID is valid for eight years. (Id.) Of course, the voter ID remains a valid voting credential for four years past its expiration, N.C, Gen. Stat, § 163-166.13(e)(1),(2). In addition, if a voter’s no-fee ID expires after his' seventieth birthday, the ID remain a valid voting credential for the rest of the voter's life. Id. § 163-166,13(f).
. Fed. R. Evid. 201,
. South Carolina issued 6,808 free voter IDs in 2015 and 553 thus far in 2016, bringing the total issuances to date to 38,517. (PI. Ex. 1055 at 1 (tbl. A).)
. See supra notes 57-58.
. North Carolina’s "merely denigrates,” "obviously nonsensical,” and "factually false” provisions track exactly the provisions in South Carolina's law precleared by the three-judge panel based on Ae broad interpretation provided by the State. SouA Carolina,
. In Florida’s VRA § 5 lawsuit seeldng pre-approval of the reduction in early-voting days, the court found that “the negative effect of reducing the number of days from 12 to 8 would likely be offset by the ameliorative effects of adding non-working weekday hours, a Sunday; and additional weekend hours.” Florida,
. The available evidence showed that most counties did not utilize both Sundays even when they were available. (See Doc 126-4 at 45-90; Def. Ex. 13); McCrory,
. Plaintiffs provided no evidence that Hispanics disproportionately used the removed days of early voting. (See, e.g., Doc. 346 discussing Hispanics only with regard to SDR, OOP, and pre-registration.)
. Accord Florida,
.Plaintiffs also showed that Hispanics disproportionately used SDR when it was in place. See supra note 111. As noted above, Plaintiffs were not able to make a showing of discrimination against Hispanics. In addition, Plaintiffs do not claim that SDR's removal imposes a heavier burden on Hispanics than African Americans.
. Plaintiffs did not provide incomplete queue data for Hispanics. (See Pi. Ex, 633 at 5 (tbl. 1).)
. The incomplete queue data provided by Plaintiffs is broken up by the reason the application was placed in the queue and by race. (PI. Ex. 633 at 5 (tbl. 1).) Some reasons for ending' up in the queue appear to have a potential connection to literacy, such as “missing signature,” "date of birth missing,” • "incomplete address,” "missing name,” "incomplete data,” "citizenship box not checked,” "card missing/unreadable,” and "need registration application.” (Id.) It is, of course, possible that some individuals may just not be citizens or not know their birthday. Others, however, are less clearly connected, including "not in county," "other reason,” "geocode conflict,” and "underage.” (Id.) In addition, one category provides no reason, even though twenty-eight people were evidently rejected for that "reason.” (Id.)
.The statute authorizes submission also by facsimile or scanned transmission. N.C. Gen. Stat. § 163-82.6(a). The SBOE website and registration form require delivery of a copy
. The statute requires that it be mailed not more than twenty-eight days and not less than seven days before one-stop (early) voting begins for each primary and general election. N.C. Gen. Stat. § 163-278.99E(a). Thus, it does not provide sufficient notice to register for the immediately upcoming election; its repetition provides additional notice and a reminder otherwise.
. The numbers in the accompanying table simply reflect the removal, by race, of the same-day registrants in the 2008, 2010, and 2012 primary and general elections, (Pl. Ex. 40 at 35 (Ex, 14) (Gronke)), from the registered voters in those years, (Pl. Ex. 684 (tbl. 15)). SDR registrations during both primaries and general elections were considered. To obtain the registration rate without SDR, that number was further divided by the VAP of each race. (Id.) The same examination of Dr. Stewart’s registration data during early voting by race during 2008, 2010, and 2012 yields similar results., (Pl. Ex. 42 (Ex. 31).) Dr. Gronke reports considerably more SDR registrants than Dr. Stewart, which may be attributable to the fact that Dr. Gronke studied "new and changed registrations," (Pl. Ex. 40 at 35), while Dr. Stewart studied only new registrants, (Pl. Ex. 42 at. 43). The court used Dr. Gronke’s data because it was the most beneficial to Plaintiffs. For example, Dr. Stewart found that there were 38,697 SDR registrations by African Americans during early voting in the 2008 general election, (Pl. Ex. 42 (Ex. 31)), whereas Dr. Gronke reported that there were 90,603, (Pl. Ex. 40 at 35 (Ex. 14)).
. The numbers in the accompanying table were derived simply by subtracting the number of SDR registrants, by race, in the 2008, 2010, and 2012 general elections, (PL Ex. 40 at 35 (Ex. 14) (Gronke)), from the number of voters, by race, in those years, (PI. Ex. 242 at 161 (App'x U)). This number of course assumes, to Plaintiffs’ benefit, that every SDR registrant voted. To get the voting rate without SDR, that number was further divided by the VAP of each race. (Id.) The same discrepancy described above between Dr. Gronke’s and Dr. Stewart’s data applied to this calculation.
. Plaintiffs also showed that Hispanics disproportionately used OOP when it was in place. (PI. Ex. 245 at 24.) But, as noted above, Plaintiffs did not make a showing of official
. To obtain these estimates, the court subtracted the number of OOP provisional ballots cast by race and year, (Pl. Ex. 42 at 98 (tbl. 14)), from the number of voters by race and year, (Pl. Ex. 242 at 161 (App’x U)). The court then divided by the VAP of each race in each applicable year (Id.) Because Plaintiffs' data on the number of OOP provisional ballots excluded 35.4% of the records in the provisional ballot file (the race of the voter was not indicated), the court followed Plaintiffs’ instruction and multiplied each number in Table 14 by 1.55. (Pl. Ex. 42 at 98 n.126 (''[T]he proper correction to apply is to multiply each number by 1/.646, or 1.55.”).) This also assumes, to Plaintiffs’ benefit, that OOP voters would not have been able to make it to their correct precinct and vote. The evidence demonstrated that most OOP voters are much more capable than the court has assumed in its calculation. (See Def. Ex. 343.)
. For example, if a group with the same or similar characteristic attempts to clear an alleged hurdle, and if less than a percent of the group fails to do so, the following inferences are supported: (1) the hurdle is not very difficult to clear for individuals with the shared characteristic, and (2) the shared characteristic does not readily explain why certain individuals cleared the hurdle and others did not.
. Plaintiffs seem to suggest that Ms. Cunningham could have voted early if the early-voting period had been longer, (Doc, 346 at 83), but there is no evidence that a longer period would have helped.
. Consequently, she was not a discernable victim of North Carolina’s historical discrimination.
. Plaintiffs presented some evidence that Hispanic youth disproportionately used preregistration, (PI. Ex. 245 at 23), but this court’s conclusions as to the race-neutral effect of pre-registration applies equally to all minority groups.
. Dr. Hillygus’s concern with studying just those who pre-register was, as noted above, that pre-registrants may have characteristics that make them both more likely to pre-regis-ter and more likely to vote. (Pi. Ex. 235 at 17 ("Put differently, those who preregistered and voted might well have done so even if preregistration had not been in place.”).)
.Plaintiffs also challenge the removal of CBOE discretion to extend voting for an extra hour on Election Day and the poll observers and challengers provisions on § 2 grounds. However, they failed to present evidence of any discriminatory burden as to either. Plain
. Where a new law involves repeal of prior provisions, the § 2 impact inquiry as to the new law by definition involves consideration of the cumulative impact.
. Voters who move inter-county within twenty-five days of Election Day were never able to use SDR to vote in their new county because they would not have satisfied the State’s eligibility requirement that they be a resident of the county for thirty days prior to the election. N.C. Gen. Stat. § 163-55(a).
. In their trial briefs, Plaintiffs limited their “knowledge” claim to early voting and SDR, (PL Ex. 285 at 47-48; Doc. 286 at 47-50.) However, in their proposed findings of fact and conclusions of law, Plaintiffs claim that "[(legislators knew that African Americans disproportionately relied on early voting, SDR, and provisional ballots.” (Doc. 346 at 59 (emphasis added).)
. In the debate, Senator Stein stated the 100,000 voter figure, (Pi. Ex. 550 at 28), but he did not openly state the 34% figure, (see PI. Ex. 202; PL Ex. 549; Pi. 550). That figure was within one of Senator Stein’s charts, which he evidently made available to other Senators through their dashboards. (Doc. 335 at 185— 86.)
. Plaintiffs point to the legislature’s decision to entrust the provision of no-fee ID to the DMV, about which they say there was "widespread knowledge of dysfunction” at the time of SL 2013-381’s enactment- (Doc. 419 at 70.) As noted above, sixteen counties do not have a brick and mortar DMV licensing location. These counties are serviced, if at all, by mobile units. During the debate of SL 2013-381, Representative Paul Tine stated on the House floor that two of the counties he serves, Washington and Hyde, receive DMV mobile unit service one or two days a month. (Pi. Ex, 138 at 68.) He further added that the availability of DMV services was “actually lower” at that time, due to mobile'units being broken down. (Li at 68-69.) At trial, Commissioner Kelly acknowledged that when he was hired in October 2013, the DMV’s computer system was outdated, DMV was unpopular with customers, wait times were too long, continuing education of examiners was insuf•ficient, and the mobile unit fleet was either outdated or in disrepair. (Doc. 410 at 154-155, 195-198.) There was no testimony before the legislature that the DMV was dysfunctional in issuing IDs or that this would contribute to the burden imposed upon voters. Representative Tine’s critique was. limited to the accessibility of DMV locations in certain communities. (See PI. Ex. 138 at 68-69.) But even if legislators knew of problems at the DMV, either through personal experience or common perception, the General Assembly’s decision to place no-fee ID in the hands of the DMV is not substantial evidence of discriminatory intent. First, if legislators were looking for an agency with experience in issuing photo IDs, the DMV was an obvious choice. Second, the two-year soft roll out substantially undermines Plaintiffs’ claim that the General Assembly intended to disadvantage voters by forcing them to interact with the DMV.
.Plaintiffs also rely on Dr. Stewart’s first no-match list as additional evidence of the foreseeable impact of SL 2013-381. There, ■ Dr. Stewart was not able to match 397,971 (6.1%) registered voters to an acceptable ID, 147,111 (10.1%) African Americans and 212,-656 (4.6%) whites, (PL Ex. 242 at 38 (tbl. 7).) As noted above, Defendants dispute the validity of this analysis. It is without dispute that
. Plaintiffs also argue that African Americans are more likely to have suspended or revoked licenses and that this somehow evidences discriminatory intent. (Doc. 419 at 15.) Plaintiffs claim that the legislature was aware of this disparity due to its consideration of another bill presented by Orange and Chatham County Assistant District Attorney, Jeff Nieman. (Id.) Mr. Nieman’s bill sought to "remove the automatic revocation for a conviction for driving while license revoked.” (Doc. 409 at 124.) One of his key arguments was that those with low socioeconomic status were more likely to end up with suspended licenses. (Id. at 126-27.) But even if legislators accepted this as true and inferred that African Americans were more likely to have suspended licenses, they could not have anticipated an impact under SL 2013-381 without also knowing that North Carolina law prohibits knowingly possessing or displaying a suspended license. N.C. Gen. Stat. § 20-30(1). There is no evidence that this was before the legislature. (See Doc. 419 at 15-16.) On its face, SL 2013-381 does not prohibit voting with a revoked or suspended license. N.C. Gen. Stat. § 163-166.13.
. They were not offered for their truth or falsity, but only for notice and intent.
. Professor Emeritus of History at Rutgers University. (Doc. 334 at 18.)
.William R. Kenan, Jr. Professor of History and Social Science at the California Institute of Technology. (Doc. 330 at 42-43.)
,- In fact, Justice Breyer based his objection , to the Indiana voter-ID law in ..Crawford in part on the fact that Indiana.failed to follow this recommendation of the Carter-Baker Report, whose findings he characterized as "highly relevant to both legislative and judicial determinations of the reasonableness of a photo ID requirement.” Crawford,
. By contrast, there were only 1,387 OOP ballots excluded from Election Day in 2014. (PI. Ex. 689.)
. Representative Lewis’s- original request was for system-wide numbers. (PL Ex. 334 at 2.) But given that the University of North Carolina did not have a way to pull the numbers for all seventeen campuses, Representative Lewis was provided an estimate. (IA at 1.) Given that "you have to have [a student ID] for everything—library, food, etc.,” the university system reasoned- that an adequate approach would be to provide numbers on the enrollment of African American students. (Id.) Accordingly, Representative Lewis was informed that African Americans were 8.9% of students at UNC-Chapel Hill and 21.1% of students at the UNC System as a whole. (Id.) If Dr. Lichtman is correct that African Americans are more likely to be enrolled in public colleges and universities in the State than whites (and thus, by inference, more likely to possess college IDs from those institutions), (see PI. Ex. 716, AL 6; Pi. Ex. 231 at 50-51), then this result is counterintuitive given the educational disparities put forth by Plaintiffs in this case.
. See infra Part II.D (Twenty-Sixth Amendment analysis).
. Although not addressed by the parties, the court is aware that North Carolina has been accused of considering race as part of the redistricting process after the 1980s. See supra note 138. Many of these cases involved accusations that the State had improperly enhanced minority voting power. See supra note 138 (discussing Bartlett v. Strickland,
. Indeed, an opponent of the bill candidly testified at the hearing that, had he been the lawyer for the Republicans, he would have similarly advised the strategy to avoid further discussion. (Doc. 165 at 70.)
.- The contemporaneous justification offered for the repeal of OOP voting was described as "basically mov[ing] the law back to the way it was prior to 2005.” (See Pl. Ex. 202 at 12.) The court interprets this as a reference to the precinct-based system affirmed and justified by the Supreme Court in 2005 in James. Given the James decision’s ample discussion of the benefits of a precinct-based system, and given that no legislator in the House or Senate openly opposed the removal of OOP voting during the legislative debate, (see, e.g., Doc. 335 at 208), the brevity of this explanation is understandable.
. Although the contemporaneous justification offered for the removal of pre-registration was weaker than, for early voting, SDR, or OOP, as noted above, there is no evidence that the legislature had before it data on the use of pre-registration by race.
. Justice Thomas wrote a separate concurrence, joined by Justice Scalia, rejecting the notion that vote dilution claims are cognizable under § 2, though he also seemed to agree with the reasons given by the plurality. Id. at 891, 945,
. In its now vacated opinion, the Sixth Circuit distinguished these cases as being in the vote dilution context. Citing the text of § 2, the court reasoned:
vote denial claims inherently provide a clear, workable benchmark. Again, under Section 2(b), the relevant inquiry is whether minority voters “have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice." 42 U.S.C. § 1973(b) (emphasis added). The benchmark is thus quite straightforward—under the challenged law or practice, how do minorities fare in their ability "to participate in the political process” as compared to other groups of voters?
Husted, 768 F.3d at .556 (emphasis in original). Of course, vote dilution and vote denial claims derive from the same statutory text. Reno does not speak to vote dilution claims but by its own terms addresses § 2 claims generally, and Holder v. Hall interpreted the same statutory text.
. Justice Scalia viewed Justice Steven’s opinion as assuming that the voter identifica
. The United States makes no claim that North Carolina’s current ID law violates the Fourteenth Amendment under the Anderson-Burdick line of cases. (Doc. 419 at 77.)
. Intervenor Plaintiffs (representing “young ■ voters”) opted not to participate in this court's January 2016 trial on voter ID, resting instead on' the intent-related ID evidence presented at the July 2015 trial. Accordingly, they presented no evidence—and thus waived any claim—that young voters will be unlawfully burdened by North Carolina's voter-ID requirement now that it has a reasonable impediment exception. Nevertheless, this court’s independent analysis confirms that this will not be the case. Facially, out-of-State college students 'might seem more' at risk because they are unlikely to have a North Carolina driver’s license. But-those who are not residents for voting purposes; see N.C. Gen. Stat. § 163-57(11), are not eligible to vote in the State anyway and should vote in their State of residence by options available there. Moreover, those who are North Carolina residents for voting purposes retain several low-burden means of complying with the ID requirement. If they are new to the State (e.g., a student enrolling in the fall semester), they will be able to use their out-of-State driver’s license for the November Presidential election because they will have registered to vote within ninety days of the election. N.C. Gen. Stat. § 163-166.13(e)(8). The same will be true for students who delay registration until the twenty-five day cut-off. IcL Once students’ out-of-State licenses cease to be acceptable for voting purposes, those who do not intend to drive and lack otherwise qualifying ID (passport, etc.) are eligible for a no-fee voter ID and can obtain one for free at the DMV. Those who intend to drive must obtain a North Carolina driver’s license within sixty days of becoming a resident anyway. N.C. Gen. Stat. § 20-7(a). Most importantly, the reasonable impediment exception is available for those who have any impediment to acquiring acceptable ID (e.g., students who live on campus and do not have transportation), including young voters who are not college students. Further, no one has suggested that college students lack the literacy required to vote under the reasonable impediment exception.
. Indiana’s law contained an exception for "indigent” voters. Crawford,
. Plaintiffs do not claim that Hispanics disproportionately used the removed times of early voting. (PL Ex. 346 at 24-27.)
. The evidence was that young voters were disproportionately likely to vote during early voting after 1 p.m. on the final day of early voting, which was removed by SL 2013-381, (Pi. Ex. 236 at 21-22.) Plaintiffs do not claim, however, that SL 2013-38l's changes to the early-voting schedule fall more heavily on young voters than African Americans.
. It is highly questionable whether the State has any obligation to provide for voting on Sunday, a day historically regarded as a non-work day. Because the parties have not addressed that issue, the court need not do so, either.
.Plaintiffs also produced several witnesses who testified that they believed they registered at the DMV leading up to the 2014 election only to learn that they were not registered when they tried to vote. (Doc, 346 at 79-80.) If the DMV failed to successfully register these persons, it would be highly troubling because the NVRA requires North Carolina's DMV to do so. .In any case, SL 2013-381 did not cause the DMV’s errors. Moreover, even if the DMV’s registration errors affect the burden imposed by SDR’s removal, Plaintiffs presented no evidence that these errors were anything but random. In fact, one of Plaintiffs’ key arguments about the sufficiency of the DMV as a registration option is that minorities are less likely to seek DMV services. As such, any burden must be evaluated as to voters generally. In Wake County during the 2014 election, approximately 250 voters claimed they had attempted to register at the DMV, even though there was no record of their registration at the voting location. (Pi. Ex. 817 at 122-24.) But even if each voter in fact attempted to register at the DMV, and assuming that each voter's registration problem was attributable to DMV error, this would only account for .87% of the roughly 28,800 voter registrations transmitted from the DMV to Wake County each year. (PL' Ex. 800 at 152-53 (noting 120 per day for 240 days).) Accordingly, this court is unable to find that the DMV’s errors impose a substantial burden on voters generally or any definable subclass of voters. In any case, the burden is outweighed by the State’s asserted interest in the removal of SDR.
. Plaintiffs showed that young voters disproportionately used SDR when it was in place, (PI. Ex. 236 at 7, 15-16.) Although young voters are disproportionately African American and Hispanic, Plaintiffs have presented no evidence that young voters experience socioeconomic disparities that make SDR’s removal fall more heavily on them than African Americans or Hispanics generally.
. Plaintiffs presented evidence that Hispanics were more likely to use SDR when it was in place. (PL Ex. 245 at 23.) As with the-other provisions in this case, Plaintiffs’ focus was on African Americans. Plaintiffs do not claim that SDR’s removal imposes a heavier burden on Hispanics than African Americans.
. Again, the court assumes, without deciding, that burdens on subclasses are cogniza
. The evidence demonstrated that North Carolina has one of the longest absentee mail ballot periods in the Nation. (Def. Ex. 270 at 35.)
. Plaintiffs’ contention that minority registration and turnout rates will fall for young minorities without pre-registration is not supported by the evidence. African American registration rates reached parity with white registration rates in 2008, before pre-registration was adopted, and continued to climb in 2014, after pre-registration was eliminated. (Pi. Ex. 684.) African American turnout rates also in
. This is clearly not the case, as Florida’s reduction in early voting was part of eighty sets of changes, four of which were initially challenged. See Florida,
. An earlier version of HB 589 permitted ID cards "issued by the University of North Carolina or its constituent institutions” and ID cards "issued by a North Carolina community college.” H.B. 589, 2013 Gen. Assemb., Reg. Sess. § 4 (N.C. 2013) (Edition 5). There are seventeen universities within the University of North Carolina system and fifty-eight public community colleges in the State. University of North Carolina, http://www.north carolina.edu/ (last visited April 15, 2016); NC Community Colleges, http://www. nccommunitycolleges.edu/ (last visited April
. The remaining evidence on intent presented by Plaintiffs consists of the statement of an individual legislator made during debate of the prior version of the voter-ID provision, which Plaintiffs themselves characterize as a "joke,” (Doc. 285 at 59 (Representative Collins)); statements of a non-legislator activist seeking to claim credit, whom the court did not find credible, (Doc. 346 at 115-16 (Jay DeLancy)), for ideas that were not necessarily his, (see PL Ex. 789 at 30-31 (saying that the provisions of HB 589 were not novel ideas, but instead had been "swirling around ... since 2012”) (former Rep. Carolyn Justice)); actions of the SBOE after the law’s enactment, (Doc. 346 at 116 (Strach direction to DMV))'; and early-voting placement decisions by certain CBOEs, (iff at 116-17). This court finds these non-contemporaneous actions and statements to be of limited probative value in determining the motivation behind HB 589. See, e.g. Barber,
. This finding also disposes of Intervenor Plaintiffs’ Fourteenth Amendment claim. (Doc. 63 in case l:13cv660 at 22.)
. As noted above, Intervenor Plaintiffs opted out of participation in this court’s January 2016 trial on voter ID, electing to rest on the intent-related ID evidence that was presented at this court's July 2015 trial.
. Preventing an individual from registering others to vote has been recognized as a legally cognizable claim. Coal, for Sensible and Humane Sols. v. Wamser,
.Although the First Circuit expressed some concern in Walgren over the district court’s finding that the burdens of students “returning during recess to vote in person or of going through the application and notarial execution process of absentee voting are insignificant,”