I have a few thoughts on the Fourth Circuit's decision today, which struck down NC's omnibus voting rights law. North Carolina's law required voters to show a a photo ID when voting at the polls; it eliminated same date registration; it reduced the number of early voting days; it eliminated pre-registration, among its more notorious accomplishments. The Court concluded that the State enacted the law with a racially discriminatory intent. After finding discriminatory intent, the Court shifted the burden to the State to show that the law would have been enacted in the absence of a racially discriminatory purpose. The Court concluded that NC could not meet that burden and it struck down the law as unconstitutional.
First, the most compelling part of the Fourth Circuit's opinion is its argument that the legislature requested racial data on how voters used various election procedures; after receiving the data the legislature decided which voting procedures they were going to change; the voting procedures that they changed "target[ed] African Americans with almost surgical precision." For example, the legislature requested racial data on voter ID and excluded many of the types of photo IDs used by African Americans but permitted the types of photo IDs used by whites. The legislature requested racial data on early voting. The data revealed that African Americans disproportionately used the first seven days of early voting. The Court noted that "[a]fter receipt of this racial data, the General Assembly amended the bill to eliminate the first week of early voting, shortening the total early voting period from seventeen to ten days." This was also true for same-day registration and provisional voting. For the race and law nerds, the Fourth Circuit's analysis here is similar to the Supreme Court's analysis in Gomillion v. Lightfoot: the way that the voting restrictions affected African Americans is only explainable if African Americans were being intentionally targeted. The Fourth Circuit concluded: "In sum, relying on this racial data, the General Assembly enacted legislation restricting all--and only--practices disproportionately used by African Americans. When juxtaposed against the unpersuasive non-racial explanations the State proffered for the specific choices it made . . . we cannot ignore the choices the General assembly made with this data in hand."
Second, the Fourth Circuit also made clear that partisan discrimination is not a compelling defense or justification to a charge of vote denial or franchise restriction. But as importantly, the Court made an important link between partisan discrimination and racial discrimination. The Court said, "intentionally targeting a particular race's access to the franchise because its members vote for a particular party" is racial discrimination. See also pages 40 and 56 where the Court is explicit that "targeting voters who, based on race, were unlikely to vote for the majority party[,] [e]ven if done for partisan ends, . . . constitute racial discrimination." This line of reasoning essentially eliminates the "it was not race it was party" defense. This is very interesting and a potentially powerful development.
Third, this opinion is a repudiation of Shelby County. The opinion is clear that just as "African American registration and turnout rates had finally reached near-parity with white registration" and that "African Americans were poised to act as a major force," the State tried to curtail the voting power of African Americans. The opinion strongly intimated that the State was able to do so only because of the Supreme Court's decision in Shelby County. On page 32 of the opinion the Fourth Circuit take's Shelby County head-on and essentially refutes Shelby's claim that "history did not end in 1965." From the perspective of the Fourth Circuit, NC has not stopped discriminating ("state officials continued in their efforts to restrict or dilute African American voting strength well after 1980 and up to the present day"). Moreover, they would have been more successful in their discriminatory attempts were it not for "the robust precautions of section 5 and suits by private plaintiffs under section 2 of the Voting Rights Act [which] prevented those efforts from succeeding." Shelby County removed that protection. The Fourth Circuit restored it.
Fourth and relatedly, the Court's analysis essentially shifts the burden on to the state to prove that it was not discriminating where there is a strong discriminatory impact. The Court is explicit about its burden-shifting framework, but says it applies only where there is discriminatory intent. But discriminatory intent here is basically shown with discriminatory impact. Yes, the Court uses NC's history of discrimination and some other factors to infer intent. But the biggest factor is discriminatory impact. If other courts follow this opinion, plaintiffs can get the burden shifted to the state where there is a strong discriminatory impact and a history of discrimination. This process goes a long way toward restoring section 5's burden-shifting framework.
Fifth, I don't think this opinion would have been written the same way and I'm not sure if it would have come out the same way if Justice Scalia were still on the Court. It is easily conceivable that this panel, given its makeup, might have struck down the most vulnerable provisions of the law but maybe not the whole thing. Moreover, they would probably have done a disparate impact analysis instead of a discriminatory intent analysis. The discriminatory intent finding allowed the Fourth Circuit to avoid sending the case (specifically the voter ID portion of the case) back down to the district court, which had upheld the law in its entirety.
With a 4-4 split on contentious issues, Court of Appeals are functionally courts of last resort. NC can cry as much as it wants, but its omnibus law is now dead. It will be buried after the appeals have been exhausted.
Lastly, big win for the plaintiffs. Total victory.