IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
)
NORTH CAROLINA STATE CONFERENCE)
)
OF THE NAACP, et al.,
)
)
)
Plaintiffs,
NAACP PLAINTIFFS’
)
PRE-TRIAL BRIEF
)
v.
)
)
PATRICK LLOYD MCCRORY, in his official )
Case No.: 1:13-CV-658
capacity as the Governor of North Carolina, et )
)
al.,
)
Defendants.
)
)
LEAGUE OF WOMEN VOTERS OF
)
NORTH CAROLINA, et al.,
)
)
)
Plaintiffs,
)
)
v.
Case No.: 1:13-CV-660
)
)
THE STATE OF NORTH CAROLINA, et al., )
)
)
Defendants.
)
)
UNITED STATES OF AMERICA,
)
)
Plaintiff,
)
)
)
v.
Case No.: 1:13-CV-861
)
)
THE STATE OF NORTH CAROLINA, et al., )
)
)
Defendants.

Case 1:13-cv-00658-TDS-JEP Document 414 Filed 01/19/16 Page 1 of 30

 TABLE OF CONTENTS
Page
INTRODUCTION ............................................................................................................... 1
BACKGROUND ................................................................................................................. 3
ARGUMENT....................................................................................................................... 5
I.

THE EVIDENCE WILL SHOW THAT THE PHOTO ID
REQUIREMENT VIOLATES SECTION 2 OF THE VOTING RIGHTS
ACT .......................................................................................................................... 5
A.

Fourth Circuit Standard for Vote Abridgement Claims ................................ 5

B.

African Americans Disproportionately Lack ID Mandated To Vote
By SL 2013-381 ............................................................................................ 7

C.

Voters Of Color Are Disproportionately Burdened In Obtaining ID
Mandated To Vote By SL 2013-381 ............................................................. 9

D.

The No-Fee Voter ID Program Does Not Ameliorate the Burden on
Voters of Color Who Lack Qualifying Photo ID. ....................................... 12

E.

The Reasonable Impediment Provision Does Not Ameliorate the
Disproportionate Burden on Voters of Color Who Lack Qualifying
Photo ID ...................................................................................................... 13

F.

The Reasonable Impediment Provision Is Different In Important
Ways From the Reasonable Impediment Provision In South Carolina....... 14

II.

SL 2013-381 WAS ENACTED WITH DISCRIMINATORY INTENT IN
VIOLATION OF THE VRA AND 14TH AND 15TH AMENDMENTS ............ 17

III.

SL 2013-381 CONTRAVENES THE DIRECTIVES SET FORTH BY
THE SUPREME COURT IN ANDERSON AND BURDICK ............................... 21

CONCLUSION ................................................................................................................. 24

i

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 TABLE OF AUTHORITIES
Page(s)
Cases
Anderson v. Celebrezze,
460 U.S. 780 (1983) ..................................................................................... 21, 22, 23, 24
Burdick v. Takushi,
504 U.S. 428 (1992) ..................................................................................... 21, 22, 23, 24
Crawford v. Marion Cnty. Election Bd.,
553 U.S. 181 (2008) ........................................................................................... 21, 22, 23
Frank v Walker,
773 F.3d 783 (7th Cir. 2014) ......................................................................................... 23
Garza v. Cnty. of L.A.,
918 F.2d 763 (9th Cir. 1990) ................................................................................... 17, 18
Holder v. Hall,
512 U.S. 874 (1994) ......................................................................................................... 7
Hunter v. Underwood,
471 U.S. 222 (1985) ....................................................................................................... 18
League of Women Voters v. North Carolina,
769 F.3d 224 (4th Cir. 2014) ........................................................................... 6, 7, 14, 15
LULAC v. Perry,
548 U.S. 399 (2006) ................................................................................................. 18, 19
McMillian v. Escambia Cnty.,
748 F.2d 1037 (5th Cir. 1984) ....................................................................................... 19
Ohio State Conference of N.A.A.C.P. v. Husted,
768 F.3d 524 (6th Cir. 2014) ........................................................................................... 7
Orgain v. City of Salisbury,
305 F. App’x 90 (4th Cir. 2008) .................................................................................... 17
Rogers v. Lodge,
458 U.S. 613 (1982) ................................................................................................. 18, 20

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 Shelby County v. Holder,
133 S. Ct. 2612 (2013) ............................................................................................... 3, 20
Thornburg v Gingles,
478 U.S. 30 (1986) ............................................................................................... 6, 14, 15
Vill. of Arlington Heights v. Metro. Hous. Dev. Corp.,
429 U.S. 252 (1977) ....................................................................................................... 17
Washington v. Davis,
426 U.S. 229 (1976) ................................................................................................. 19, 20
Statutes
52 U.S.C. § 10301 ........................................................................................................... 3, 7
52 U.S.C. § 10301(a) ........................................................................................................... 5
52 U.S.C. § 10301(b) ........................................................................................................... 6
Other Authorities
N.C. Gen. Stat. § 163-166.13 .............................................................................................. 4
N.C. Gen. Stat. § 163-166.13(c) .......................................................................................... 5
N.C. Gen. Stat. § 163-182.1B .............................................................................................. 5
N.C. Gen. Stat. § 20-37.13 ................................................................................................ 11
N.C. Gen. Stat. § 20-37.15 ................................................................................................ 11
N.C. Gen. Stat. § 20-37.16 ................................................................................................ 11
N.C. Gen. Stat. § 20-37.7(b) .......................................................................................... 4, 12
N.C. Gen. Stat. § 20-37.7(d) ........................................................................................ 11, 12
N.C. Gen. Stat. § 20-37.7(d)(5) ........................................................................................... 4
N.C. Gen. Stat. § 20-7 ....................................................................................................... 11
N.C. Gen. Stat. § 20-7(b1) ................................................................................................... 4
North Carolina House Bill 589 (2013) ....................................................................... passim
North Carolina House Bill 836 (2015) ...................................................................... 4, 5, 13
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 INTRODUCTION
As originally enacted, North Carolina SL 2013-381 imposed a strict photo
identification requirement that threatened to disenfranchise substantial portions of the
State’s electorate. Last summer, after two years of litigation and on the eve of trial, the
State recognized that its law suffered from two crippling legal infirmities: (1) there was
no evidence of in-person voter fraud in North Carolina, thus undermining the purported
justification for the law; and (2) the statute stood to impose enormous and
disproportionate burdens on minorities once it went into effect in violation of Section 2 of
the Voting Rights Act and the 14th and 15th Amendments of the Constitution). Faced
with those realities, the North Carolina General Assembly amended SL 2013-381 weeks
before trial to establish a procedure permitting individuals without photo ID to cast a
provisional ballot so long as they execute a “reasonable impediment” declaration.
In many ways, the amendment raised more questions than it answered. The
rationale for North Carolina’s originally enacting a photo ID requirement was to deter
in-person voter fraud. But allowing those without such ID to vote simply by signing a
“reasonable impediment” affidavit would seem to undermine that justification,
particularly against an evidentiary background of no in-person voter fraud in North
Carolina and the increased tax dollars that North Carolina taxpayers will need to spend
implementing this law.

Against that background, one must question what North

Carolina’s real motivation is in continuing to insist on imposing a photo ID law at all.
In any event, the reasonable-impediment revisions to SL 2013-381 fall far short of
curing the illegal and unconstitutional burdens the photo ID law would plainly have

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 imposed on North Carolina minority voters in the absence of such a provision. AfricanAmerican and Latino voters in North Carolina still face disproportionate burdens to
obtaining photo ID, including the ostensibly free photo ID that the law provides. That
means that a disproportionate number of African-American and Latino registered voters
will be funneled into the reasonable-impediment process, a process that does not allow
them to cast a regular ballot at the polls. It also remains unclear how the State will
implement many of the crucial details of the reasonable-impediment process, and that
uncertainty poses a substantial risk that African Americans and Latinos will face more
significant obstacles to using that process than will whites, and that some will be deterred
from undertaking that process in the first place in light of statewide confusion regarding
its implementation and requirements.
Moreover, the North Carolina legislature’s knowledge of the photo ID
requirement’s disproportionate burdens on African Americans, its elimination of forms of
ID originally included in the bill, and the absence of any credible (much less substantial)
legislative rationale, all show that the legislature enacted the statute—at least in part—to
make it harder to vote and to deter minority voters in violation of the Fourteenth and
Fifteenth Amendments.
prohibited intent.

The law’s subsequent amendment does not ameliorate its

And even if this Court concludes that the legislature lacked

discriminatory intent in enacting SL 2013-381, the requirement remains unlawful because
it produces discriminatory results and burdens the right to vote in ways that, as has been
established in the record, are not outweighed by any substantial State purpose.

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 BACKGROUND
On June 25, 2013, the Supreme Court decided Shelby County v. Holder, 133 S. Ct.
2612 (2013), which struck down the coverage formula for the pre-clearance requirement
of the Voting Rights Act of 1965, rendering it inoperable. In the immediate aftermath, the
North Carolina General Assembly passed sweeping voting restrictions in North Carolina
House Bill 589 (2013) (which became SL 2013-381). SL 2013-381 mandates, among
other things, that registered voters show one of a limited number of specific governmentissued photo ID cards in order to cast a regular ballot in North Carolina elections.
The North Carolina State Conference of the NAACP, along with other plaintiff
groups, filed these actions against the State and certain State officials in their official
capacities (collectively, the “Defendants”) pursuant to Section 2 of the Voting Rights
Act, 52 U.S.C. § 10301, and the Fourteenth and Fifteenth Amendments to the United
States Constitution, challenging the photo ID requirement and other provisions of
SL 2013-381, both individually and cumulatively.

Discovery demonstrated that the

photo ID requirement imposes disproportionate burdens on African Americans and
Latinos, who are statistically less likely to possess one of the forms of ID required to
vote; that lawmakers knew and intended this result when they passed the law; and that the
State’s efforts to educate and assist voters in obtaining one of the mandated forms of ID
was plagued with problems.
This Court scheduled trial to commence on July 13, 2015, during which Plaintiffs
were prepared to present evidence regarding the photo ID requirement and other
provisions of SL 2013-381.

However, approximately three weeks before trial, the
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 General Assembly passed North Carolina House Bill 836 (2015) (“HB 836”), which
made various amendments to the photo ID requirement contained in SL 2013-381.
The parties agreed to defer trial on Plaintiffs’ challenges to the photo ID
requirement. Trial proceeded on the remaining challenged provisions of SL 2013-381
and concluded on July 31, 2015. On October 23, 2015, this Court denied the State’s
motion to dismiss the photo ID claim and later adopted a schedule setting trial on
Plaintiffs’ challenges to the photo ID law.
The challenged photo ID requirement in SL 2013-381 requires that beginning
January 1, 2016, North Carolina voters who cast ballots in person must provide one of the
following forms of government-issued photo ID: (1) a North Carolina driver’s license,
learner’s permit, or provisional license; (2) a special non-operators identification card;
(3) a United States passport; (4) a tribal enrollment card issued by a federally recognized
tribe or tribe recognized in North Carolina; (5) an identification card issued by another
state subject to certain limitations (only if the voter’s voter registration was within 90
days of the election); or (6) a military or veterans’ identification card. See N.C. Gen. Stat.
§ 163-166.13. SL 2013-381 requires the DMV to issue a special identification card free
of charge to any registered voter who lacks SL 2013-381 ID. See N.C. Gen. Stat. § 2037.7(d)(5).1 SL 2013-381 establishes three statutory exceptions; the following voters are
not subject to the photo ID requirements: (i) curbside voters; (ii) those with a religious

1

North Carolina law requires applicants for such free identification cards to furnish the same
underlying identifying information as applicants for any other DMV identification, including at
least two forms of identification approved by the Commissioner of Motor Vehicles. See N.C.
Gen. Stat. §§ 20-37.7(b); 20-7(b1).

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 objection to being photographed who complete a form 25 days in advance of Election
Day; and (iii) voters deemed victims of natural disasters as established by the state.
HB 836 does not eliminate the photo ID requirement but rather amends
SL 2013-381 to provide a process for voters who cannot obtain a form of mandated ID to
complete a “reasonable impediment declaration,” provide a form of identification, and
vote a provisional ballot, which shall be counted in accordance with N.C. Gen. Stat.
§ 163-182.1B (the “Reasonable Impediment Declaration Provision”), see N.C. Gen. Stat.
§ 163-166.13(c). The law, however, allows a voter in the county to challenge the
veracity of a reasonable impediment declaration and allows a county board of elections to
reject the provisional ballot if it determines the declaration is factually false, denigrates
the photo ID requirement, or is obviously nonsensical; or if the voter has failed to provide
underlying supporting identification. Id.
ARGUMENT
I.

THE EVIDENCE WILL SHOW THAT THE PHOTO ID REQUIREMENT
VIOLATES SECTION 2 OF THE VOTING RIGHTS ACT
A.

Fourth Circuit Standard for Vote Abridgement Claims

Section 2 of the Voting Rights Act (“VRA”) prohibits a state from “impos[ing] or
appl[ying]” any electoral practice “which results in a denial or abridgement of the right of
any citizen of the United States to vote on account of race or color.”

52 U.S.C.

§ 10301(a). Under Section 2(b) of the VRA, a voting practice “results in a denial or
abridgment of the right . . . to vote on account of race or color,” id., if, after examining
“the totality of the circumstances,” racial minorities have “less opportunity than other

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 members of the electorate to participate in the political process and to elect
representatives of their choice,” id. § 10301(b). The total numbers of such voters is not
the appropriate metric; the disparity between whites and racial minorities is.
The U.S. Court of Appeals for the Fourth Circuit, applying Section 2 in this case,
reinforced the fact that a Section 2 vote abridgement claim consists of two elements:
(i)

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.

(ii)

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 of Women Voters v. North Carolina, 769 F.3d 224, 240 (4th Cir. 2014).
This is a “totality of the circumstances” test—one that looks at the presence of one
or more of the factors identified in the Senate Report accompanying the 1982
amendments to the Voting Right Act (the “Senate Factors”). Id. at 240 (citing Thornburg
v. Gingles, 478 U.S. 30, 44-45 (1986)). The Fourth Circuit emphasized the settled law
that there is no requirement that any particular number of Senate factors be proved, or
even that a majority of them point one way. Rather, courts must undertake a searching
practical evaluation of the reality, with a functional view of the political process. The
Fourth Circuit stressed that this is an intensely local appraisal of the design and impact of
electoral rules in the light of past and present reality. Id.; Gingles, 478 U.S. at 44-45.
Thus, a practice that may be permissible in one place could result a prohibited inequality

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 in voting opportunities based on race in another, depending on the past situation and the
particular impacts present.
Plaintiffs bringing a Section 2 claim need not show that a challenged practice
makes voting impossible for minorities—only that it makes voting disproportionately
more burdensome. As the Fourth Circuit has explained: “[N]othing in Section 2 requires
a showing that voters cannot register or vote under any circumstance.” League of Women
Voters, 769 F.3d at 243; see also Ohio State Conference of N.A.A.C.P. v. Husted, 768
F.3d 524, 552 (6th Cir. 2014) (“Section 2 applies to any ‘standard, practice, or procedure’
that makes it harder for an eligible voter to cast a ballot, not just those that actually
prevent individuals from voting.”); Holder v. Hall, 512 U.S. 874, 922 (1994) (Thomas, J.
concurring in the judgment). Section 2 thus prohibits not only the outright “denial,” but
also the “abridgement” of the right to vote. 52 U.S.C. § 10301.
B.

African Americans Disproportionately Lack ID Mandated To Vote By
SL 2013-381

Even after the enactment of the reasonable-impediment provision, African
Americans in North Carolina continue to disproportionately lack the forms of
identification required by SL 2013-381. The analysis of plaintiffs’ expert Dr. Charles
Stewart indisputably shows that African Americans disproportionately lack one of the
forms of ID required to vote under SL 2013-381.2 Indeed, Dr. Stewart’s analysis shows
2

Dr. Stewart’s analysis found that although African Americans constitute just 22.4% of North
Carolina’s registered voters, they make up about 40% of voters on the list of voters who were
unmatched to the most prevalent forms of acceptable Photo ID—the so-called “no-match list.”
By contrast, white voters comprise about 70.9% of North Carolina registered voters but only
51% of the no-match list. Stewart 4/2/2015 Addendum. The racial disparities are even greater if
inactive licenses are not allowed for voting; a full 25% of North Carolina’s African Americans

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 that African Americans lack the required photo ID at well over twice the rate of white
voters. Stewart 4/2/2015 Addendum, Revised Table 11.
The evidence will show that the State’s own matching analysis confirms the racial
disparities:
• A January 2013 analysis by the North Carolina State Board of Elections
(“SBOE”) found that 31.2% of those registered voters without photo ID were
African American and 56.8% were white—even though African Americans
made up just over 20% of registered voters and whites constitute about 70% of
North Carolina voters. JA 1671, 1673.
• The SBOE’s March 2013 matching report concluded that 33.0% of those on
the no-match list were African American (compared to 21.9% of registered
voters) and 55.3% were white (compared to 71.9% of registered voters). JA
1784.
• Another comparison using additional matching criteria in April 2013 reported
that 33.8% of those without a matched ID were African American and 54.2%
were white (even though just 22.0% of registered voters were African
American; 71.4% of registered voters were white). JA 1825-1827, 1830.
• And a 2015 analysis (using data from 2014) found that 36.0% of voters who
could not be matched to the DMV database were African American and 48.8%
were white. See Pls.’ Dep. Ex. 411 at 607, 10-11 (Nov. 2014 Matching
Report).
Indeed, with each successive revision to the SBOE’s list of unmatched voters, the racial
disparity between African American and white voters expanded. See Lichtman 2015
Response Rpt. (Mar. 24, 2015) at 11-13 & tbls. R-2, R-2A.
Defendants argue that the numbers of voters indicated as no-matches to an ID on
these lists are inflated, based in part on responses from a series of mailings the State sent

were without an active ID, compared to just 8.7% of white voters. Id. Tbl. 11, col. 6. The racial
disparities are even more pronounced among those most likely to vote—active voters and people
who voted in 2012 and 2014. Stewart Trial Decl. ¶¶ 107-109.

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 to voters on Dr. Stewart’s and the State’s no-match list.

As an initial matter, the

Defendants’ expert did not perform a racial breakdown of those voters who did and did
not respond to those mailings. In any event, the evidence will show that the response rate
was under 10% for the State’s mailings, and that a higher rate of respondents indicated
they had ID than the matching process would suggest.

Plaintiffs’ experts will

demonstrate that it is not valid to draw inferences from the response rates to those
mailings, pointing to the return as too low from which to draw inferences.

Even

Defendants’ experts concede that the low response rate is likely not one from which they
would draw inferences. Plaintiffs’ experts will also point to social science suggesting
individuals may respond in such surveys that they have ID when they do not; that people
of lower education, lower literacy, and lower socio-economic status are less likely to
respond to this type of mailing than voters with higher education and literacy rates; and
thus that the response sample received from the SBOE mailings is unlikely to be
representative of the rates of ID possession among the mailing group.
C.

Voters Of Color Are Disproportionately Burdened In Obtaining ID
Mandated To Vote By SL 2013-381

The record at trial will also establish that racial minorities still face
disproportionate barriers to obtaining required ID due to demographics, poverty, and a
host of other social and economic factors that interact with the law to erect greater
barriers and costs for African Americans and Latinos. For example, Dr. Stewart’s
matching analysis found that counties with larger African American populations, lower
median household incomes, lower literacy levels, and less access to private automobiles

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 had more voters on the no-match list. Stewart Trial Decl. ¶¶ 135, 141-143, Figures 6 and
7 (analyzing 397,997-person no-match list). Indeed, in every county in North Carolina,
except for two, African American voters are more likely to be on the no-match list than
white voters. Id. ¶ 138, Figure 5.
The evidence will demonstrate that obtaining ID for voting under SL 2013-381
can be burdensome due to a variety of factors, including underlying documentation
requirements, fees, travel to DMV offices due to in-person application requirements,
limited business hours or availability of DMV offices, and a lack of voter education. As
Plaintiffs’ experts and witnesses will opine, these burdens are disproportionately borne by
minority voters, who also lack the resources to overcome them. This evidence includes
testimony from African American voters who will testify that obtaining ID is burdensome
for them.
Moreover, the evidence will show that the process for obtaining North Carolina
driver’s licenses, non-operator identification cards, and no-fee voter ID cards can be
daunting, time-consuming, costly, and difficult. Applicants must apply in person at a
Department of Motor Vehicles (“DMV”) office, provide underlying documents that are
not free to obtain, pay a fee (sometimes multiple fees), and overcome a variety of
procedural and substantive barriers. First-time applicants must complete an application
form, and present (i) at least two forms of documentary proof of identity, (ii) proof of
social security number, and (iii) proof of North Carolina residency. The North Carolina
DMV charges fees to issue a driver’s license and non-operator ID cards, both originals
and renewals—fees that just increased as of January 1, 2016 ($40 for those age 18-65;
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 $13 for non-operator ID cards). N.C. Gen. Stat. §§ 20-7, 20-37.13, 20-37.15, 20-37.16.
No-fee ID cards are available but only to individuals (1) who can prove that they are
homeless, (2) who are legally blind, (3) who are age 70 or over; (4) whose driver’s
license have been medically canceled; or (5) who are registered voters and otherwise lack
photo ID that can be used for voting under SL 2013-381. N.C. Gen. Stat. § 20-37.7(d).
Plaintiffs will present evidence that African American and Latino voters are less
likely to have access to a DMV office from which to procure ID required to vote under
SL 2013-381. Evidence from the North Carolina State Department of Transportation
(“DOT”) confirms that brick-and-mortar offices are not available in every county, Defs.’
Resps. to Reqs. for Adm. ¶¶ 72, 74, and that hours vary, with limited evening and
weekend hours, Defs.’ Resp. to Supp. Reqs. for Adm. ¶¶ 78, 79, 82, 83. DOT evidence
will likewise demonstrate that the DMV’s mobile units fail to ameliorate the limited
availability of the brick and mortar offices. Id. ¶¶ 68, 69, 79, 81. Some counties do not
have access to a DMV office.
The evidence will demonstrate that it can be difficult for some voters to obtain the
underlying identification necessary to procure ID, that the underlying documents required
to do so may cost money, and that the process may be error-ridden (errors which can be
burdensome to rectify). In particular, Latinos may be particularly prone to errors in
underlying identifying documents due to disparities in Latino naming conventions. The
evidence will also show that African Americans are more likely to possess canceled,
suspended, or revoked driver’s license, which cannot be used for purposes of voting

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 under the law. Defs.’ Resps. to Reqs. for Adm. 36, 38, 40; Stewart Trial Decl. ¶ 127 &
tbl.11; Stewart 4/2/2015 Addendum.
D.

The No-Fee Voter ID Program Does Not Ameliorate the Burden on
Voters of Color Who Lack Qualifying Photo ID.

The evidence will demonstrate that the availability of a no-fee voter ID is
insufficient to ameliorate the burdens on voters of color in North Carolina.

North

Carolina allows certain voters to obtain ID without cost, including those who are
registered voters and otherwise lack photo identification that can be used for voting under
SL 2013-381.

N.C. Gen. Stat. § 20-37.7(d). Because African Americans

disproportionately lack one of the required forms of ID, African Americans have been
disproportionately funneled into the no-fee voter ID process.
Unlike South Carolina, North Carolina requires applicants for no-fee voter ID
cards to furnish the same underlying identifying information as applicants for any other
DMV identification, including at least two forms of identification approved by the
Commissioner of Motor Vehicles. See N.C. Gen. Stat. §§ 20-37.7(b), 20-7(b1).
Moreover, African Americans still face the following hurdles: the need to apply in person
at locations that may be remote and/or only open on limited days of for limited hours;
documentation requirements and knowledge of such requirements; the DMV’s failure to
publicize the program; and unbridled examiner discretion.

The evidence will

demonstrate that African Americans and Latinos have fewer resources to overcome those
hurdles. The unsurprising result of these barriers is that North Carolina has issued a
small number of no-fee voter IDs since the program’s inception in January 2014.

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 E.

The Reasonable Impediment Provision Does Not Ameliorate the
Disproportionate Burden on Voters of Color Who Lack Qualifying
Photo ID

The “reasonable impediment” provision added by HB 836 does not alleviate the
unlawful burdens imposed by the photo-identification requirement of SL 2013-381. That
is true for several reasons. First, as explained above, African Americans and Latinos are
less likely to have ID mandated by SL 2013-381 and face greater burdens to obtaining
that ID than their white counterparts. They are therefore disproportionately more likely
to have to avail themselves of HB 836’s reasonable impediment procedures if they appear
to vote in person, and therefore disproportionately more likely than their white
counterparts to face the burdens discussed below.
Second, the evidence will establish that completing a reasonable impediment
declaration is a transaction that could be complex and intimidating depending on the
voter’s situation. Witnesses will testify that voters are segregated to a separate line,
required to declare the nature of their “impediment” in a public setting, under penalty of
perjury, before a poll worker who may be a neighbor. These additional costs and burdens
of voting will be disproportionately borne by African Americans and Latinos who have
fewer resources to overcome them and could swing the balance against participation for
many would-be voters.
Third, implementation of the reasonable impediment declaration provision
remains unclear in ways that will discourage minority voter participation. For example, it
is unclear what ability voters have to challenge the legitimacy of the reasonable
impediment declaration made by another voter, the discretion afforded to County Boards

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 of Election to reject a provisional ballot cast pursuant to the reasonable impediment
provision, and the discretion and penalties for erroneous statements.
Finally, although other courts have sustained voter-ID laws even without a
reasonable impediment exception, that does not inevitably sustain the lawfulness of the
photo identification requirements at issue here. This Court must reject the notion that the
existence of a reasonable impediment provision per se ameliorates any burden imposed
by a photo ID requirement. As with all Section 2 inquiries, its impact is gleaned through
an intensely local appraisal that examines the impact of the challenged provision in the
light of past and present reality—for voters in North Carolina. League of Women Voters,
769 F.3d at 240; Gingles, 478 U.S. at 44-45.
F.

The Reasonable Impediment Provision Is Different In Important Ways
From the Reasonable Impediment Provision In South Carolina

The Defendants have thus far defended the photo ID requirement in part on
grounds that North Carolina’s reasonable impediment exception is similar to South
Carolina’s photo ID law. The evidence will establish that the situations in the two states
are distinct.
First, the South Carolina proceedings occurred under Section 5 of the VRA, a
different standard than applicable to this Section 2 claim.

There, the court had to

determine whether the voting change was racially retrogressive: “The effects prong of
Section 5 of the Voting Rights Act measures a State's proposed new voting law against
the benchmark of the State's pre-existing law.”

South Carolina v United States,

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 898 F. Supp. 2d 30, 32 (D.D.C. 2012). In contrast, the Section 2 inquiry here must look
to the present disparity of the current law between minorities and whites.
Second, the scope of change from prior law is relevant to this Court’s analysis of
the impact of the photo ID requirement as it goes to the relative burden the law imposes
on voters to acclimate to the new requirement. Indeed, Section 2’s effects test behooves
the court to examine the challenged provision in the light of past and present reality.
League of Women Voters, 769 F.3d at 240-41; Gingles, 478 U.S. at 44-45. On this
metric, there is considerable difference between North Carolina and South Carolina. As
the three-judge panel in South Carolina noted, South Carolina already had a voter ID law
in effect for “several decades” prior to passage of Act 54. South Carolina, 898 F. Supp.
2d at 32. Before enactment of Act R54, South Carolina’s prior law required all voters to
show ID, including “a South Carolina driver’s license, DMV photo ID card, or non-photo
voter registration card in order to vote.”

Id.

Although South Carolina was now

introducing a photo ID requirement, such modification was much less pronounced than in
North Carolina, which, prior to HB 589, did not require voters to show any ID, much less
DMV-issued ID. Rather, for decades, North Carolina voters verified their identity
through a signature attestation process. As Plaintiffs’ experts will establish, the larger the
change in law, the greater the costs that voters will need to pay in order to acclimate—
and the less likely that voters will be to participate in the political process.
Third, the South Carolina court noted that, compared to prior law, “R54 expands
the kinds of photo IDs that may be used to vote—adding passports, military IDs, and new
photo voter registration cards to the driver's licenses and DMV photo ID cards already
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 permitted by pre-existing law.” 898 F. Supp. 2d at 32 (emphasis added). In contrast,
North Carolina’s law restricts the forms of ID allowed to vote compared to prior law.
Fourth, in granting preclearance in South Carolina, the court found it relevant that
South Carolina law expanded opportunities for voters to obtain compliant ID.

Id.

(“Act R54 minimizes the burden of obtaining a qualifying photo ID as compared to preexisting law.”). Unlike South Carolina, where voters can obtain compliant ID to vote at
either a DMV office or any county elections office, in North Carolina, voters may only
obtain voter ID at a DMV office. In addition, the court noted in South Carolina, that
every county had a county elections office, id. at 33 (“There is at least one elections
office in each of South Carolina's 46 counties”), and that every county has a DMV office,
id. at 34 (“There is at least one DMV office in all 46 counties, and more than one DMV
office in some of the more populated counties.”). In contrast, the evidence here will
establish that that not all North Carolina counties have DMV offices; that the DMV
offices that do exist are open for varying days and hours; and that voters cannot obtain ID
at any North Carolina county elections office.
Additionally, the evidence will show North Carolina voters must present
identification in order for their provisional ballot to be counted. In North Carolina, a
voter’s reasonable impediment declaration is subject to challenge by any other voter in
the county. Beyond that, provisional ballots may be discarded for a host of other reasons,
including errors or omissions on the provisional ballot envelope. As Plaintiffs’ experts
will testify, provisional ballots in North Carolina are rejected at a rate much higher than
the national average.
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 II.

SL 2013-381 WAS ENACTED WITH DISCRIMINATORY INTENT IN
VIOLATION OF THE VRA AND 14TH AND 15TH AMENDMENTS
The trial record already includes substantial evidence demonstrating that the

challenged provisions of SL 2013-381, including the photo ID requirement, were adopted
at least in part for a discriminatory purpose.

The evidence confirms, for instance:

legislators’ knowledge of the disparate impact of the changes to voting laws on African
Americans and Hispanic voters; motivation to limit the methods of registering and voting
used by minority groups; the tenuousness of the alternative rationales offered for the
statute; and the irregular and unusual legislative process used to pass SL 2013-381.
Plaintiffs will supplement that substantial evidence at the upcoming trial.
Section 2 of the Voting Rights Act prohibits voting practices adopted with a
racially discriminatory purpose. See, e.g., Garza v. Cnty. of L.A., 918 F.2d 763, 766 (9th
Cir. 1990); Senate Report at 27. To prevail on this type of Section 2 claim, a plaintiff
must demonstrate that the legislation at issue was motivated by an unlawful
discriminatory purpose, but it is not necessary “that the challenged action rested solely on
racially discriminatory purposes” or that the racially discriminatory purpose “was the
‘dominant’ or ‘primary’ one.” Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429
U.S. 252, 265 (1977) (emphasis added). “Rather, Plaintiffs need only establish that racial
animus was one of several factors that, taken together, moved [the decision-maker] to act
as he did.” Orgain v. City of Salisbury, 305 F. App’x 90, 98 (4th Cir. 2008).
Discriminatory purpose may be proven by direct or circumstantial evidence, and a
plaintiff need not demonstrate any invidious racial animus in order to establish liability.

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 See Rogers v. Lodge, 458 U.S. 613, 618 (1982). All that is required is a showing of intent
to disadvantage or burden racial minorities. Garza, 918 F.2d at 778 & n.1 (Kozinski, J.,
concurring in part and dissenting in part); see also LULAC v. Perry, 548 U.S. 399, 440
(2006). Courts can also rely on the Senate Factors to find a racially discriminatory
purpose. See Rogers, 458 U.S. at 620-21. “Once racial discrimination is shown to have
been a ‘substantial’ or ‘motivating’ factor behind enactment of the [challenged] law, the
burden shifts to the law’s defenders to demonstrate that the law would have been enacted
without this factor.” Hunter v. Underwood, 471 U.S. 222, 228 (1985).
The evidence in this case supports a finding of discriminatory purpose. The record
demonstrates that in enacting SL 2013-381, the North Carolina General Assembly was
responding to increased political power among African American and Latino voters by
making changes in the State’s election law to limit that power and prevent minority
voters from threatening the prospects of the political party then in control of the General
Assembly. As set forth in the July 2015 trial, the political power of African Americans
rose between 2004 and 2013. 7/17/15 Trial Tr. 98:3-99:6 (Lichtman). When combined
with the State’s racially polarized voting patterns, see id. 99:10-101:8, this posed a
substantial threat to the political power of whites—thus motivating them to enact SL
2013-381.

Sponsors and supporters of SL 2013-381 were well aware of the

disproportionate impact that the photo ID requirement and other provisions of the law
would have on minority voters. Indeed, they specifically requested and received this data
while considering the law. See Plaintiffs’ Joint Proposed Findings of Fact and
Conclusions of Law (“FF”), [ECF No. 364], ¶¶ 166-174, 177-180. Legislators had ample
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 evidence regarding the disproportionate impact of the photo ID requirement in particular
when they passed the law.

But despite these warning signs, and despite rampant

opposition from civil rights groups who presented evidence of the law’s disparate impact,
sponsors and supporters never substantively addressed concerns that SL 2013-381 would
harm African American and Latino voters.
Consequently, this Court can draw the “normal inferences to be drawn from the
foreseeability of defendant’s actions,” i.e., that the sponsors and supports of HB 589
intended that the law would have the effect that they knew it would. See McMillan v.
Escambia Cnty., 748 F.2d 1037, 1047 (5th Cir. 1984) (quoting S. Rep. No. 97-417, at 27
n.108 (1982)); see also Washington v. Davis, 426 U.S. 229, 253 (1976) (Stevens, J.,
concurring) (“[N]ormally the actor is presumed to have intended the natural
consequences of his deeds.”).

Indeed, the situation here bears resemblance to the

situation in LULAC, where the Supreme Court affirmed a finding of a Section 2 violation
when, on the eve of Latino voters gaining potential control over a particular
Congressional District, the Texas Legislature made changes to the State’s voting laws to
prevent Latino voters from threatening the re-election prospects of a State Representative
who was a member of the majority party. See 548 U.S. at 410-11. The same is true here.
The trial record further established that North Carolina has a long and repeated
history of clamping down on African American voting strength after surges in minority
political power. FF ¶¶ 3-13. SL 2013-381’s photo ID requirement is only the most recent
example. The path to that photo ID requirement began in 2011, when after a decade of
expanded opportunities to vote in North Carolina, the legislature in 2011 passed a photo
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 ID requirement that was vetoed by the Governor. Following the election of Governor
Patrick McCrory, lawmakers renewed their efforts to reverse course with another photo
ID proposal in 2013, an effort that then expanded following the Supreme Court’s decision
in Shelby County v. Holder, 133 S. Ct. 2612 (2013), to limit the pre-clearance process.
“[A]n invidious discriminatory purpose may often be inferred from the totality of
the relevant facts,” Davis, 426 U.S. at 242, and “discriminatory intent need not be proved
by direct evidence,” Rogers, 458 U.S. at 618.

Here, the disparate burdens that

SL 2013-381 inflicts on African Americans and Latinos, the legislature’s knowledge of
those burdens at the time the statute was enacted, the lack of any credible, nondiscriminatory basis for the law, and the highly unusual manner in which the law was
enacted all lead to the conclusion that at least one motivating purpose behind SL 2013381 was to make voting more burdensome for African Americans and Latinos. That
analysis is only confirmed by the Senate Factors, many of which provide circumstantial
evidence of discriminatory intent. See, e.g., Rogers, 458 U.S. at 623 (explaining that
racially polarized voting patterns (Senate Factor 2) “bear heavily on the issue of
purposeful discrimination”); id. at 613, 619-20 & n.8, 623-24 (recognizing that
“unresponsiveness of elected officials to minority interests [Factor 8], a tenuous state
policy underlying the [challenged practice] [Factor 9], and the existence of past
discrimination [Factor 1],” to be “relevant to the issue of intentional discrimination”).

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 III.

SL 2013-381 CONTRAVENES THE DIRECTIVES SET FORTH BY THE
SUPREME COURT IN ANDERSON AND BURDICK
The flexible balancing test under the Anderson and Burdick cases requires courts

to “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.”
See Burdick v. Takushi, 504 U.S. 428, 434 (1992) (quotations omitted); see also
Anderson v. Celebrezze, 460 U.S. 780, 793-94 (1983). In particular, the Court must
consider the effects of the restriction on those voters who are actually affected by it,
compared with the State’s interest in burdening those voters’ right to vote. Crawford v.
Marion Cnty. Election Bd., 553 U.S. 181, 198, 201 (2008) (in assessing severity of
burdens imposed by voter ID law, holding that relevant burdens “are those imposed on
persons who are eligible to vote but do not possess a current photo identification” and
“indigent voters”).
Here, the impact of requiring photo ID from the subset of North Carolina voters
who do not have one of the acceptable forms of photo ID must be balanced against the
State’s interest in implementing the photo ID requirement. The evidence will show that
North Carolina’s planned implementation of its photo ID law fails the Anderson/Burdick
balancing test because of (i) the State’s inability to adequately inform and re-educate
voters with regard to the amended photo ID Requirement, (ii) the State’s failure to
properly train county board of election officials and poll workers regarding the amended
law, (iii) the State’s inadequate rulemaking and failure to seek public input on the

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 amended law, and (iv) the State’s lack of preparation to assist voters to execute
reasonable impediment declarations.
On the one hand, the interests of voters who do not have a qualifying photo ID are
extremely strong: many voters without ID will simply be deterred from trying to vote
because of the substantial efforts made by the State to inform voters that they “must”
have photo ID to vote in 2016 and the failure to re-educate them regarding the new
exceptions to the photo ID law. Others will be deterred or intimidated because of the lack
of information regarding the details of the process and lack of public input and
rulemaking. And those voters who make it to the polls are likely to encounter poll
workers who are unprepared to administer the new law. In contrast to these serious
harms to voters, and the State has no legitimate interest in implementing the photo ID
requirement.
Applying the Anderson-Burdick framework, the lead opinion in Crawford
explained that the proper balancing inquiry takes place within the specific context of the
State at issue. 553 U.S. at 198-99. Although the Crawford Court upheld Indiana’s voter
ID requirement, notwithstanding its lack of a reasonable impediment exception, that
determination does not require a finding that North Carolina’s law passes muster. The
application of this test is a highly localized inquiry. Plaintiffs already presented evidence
at the July 2015 trial establishing North Carolina’s long history of purposeful
discrimination against African Americans and other minorities in the area of voting. See
FF ¶¶ 3-13. Plaintiffs also demonstrated that this history of discrimination has created
socioeconomic disparities that make African Americans and other minorities less able to
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 bear the costs of participating in the electoral process. See FF ¶¶ 4, 14-44. These Statespecific factors impact the balancing analysis that the Court must conduct under the
Anderson-Burdick framework and allow for a different outcome in this case relative to
Crawford and South Carolina, notwithstanding any potential similarities among the three
laws at issue.
With respect to North Carolina’s purported justification for the law—the focus of
the second half of the Anderson-Burdick balancing test—this is also a localized inquiry,
and must be given particular weight in light of the facts in that case. Accordingly, a
state’s rationale is not “one size fits all,” and a purported state rationale cannot be viewed
as per se justifiable under this balancing test. Put simply, what one state may believe is a
benefit or justification may not suffice in another state with a different history with
respect to voting and elections. Not only have the underlying rationales for photo ID
requirements listed by the court been discredited by some of the Indiana law’s previous
supporters (See e.g., Frank v Walker, 773 F.3d 783, 794-95 (7th Cir. 2014) (Posner, J.,
dissenting)), but the inquiry must be specific to the validity of the rationales offered by
lawmakers in light of the evidence in North Carolina.
Here, Plaintiffs presented substantial evidence that the State’s claims of preventing
fraud were pretextual given the absence of any history of in-person voter fraud in the
State. See FF ¶¶ 169-184. Indeed, one North Carolina lawmaker admitted that: “There is
some voter fraud, but that’s not the primary reason for doing this.” FF ¶ 169. No
empirical evidence was presented to the North Carolina legislature to suggest that voter
fraud was a problem in the State or that voters lacked confidence in the electoral process.
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 FF ¶ 170. Plaintiffs experts will testify at trial that no new information rebuts that
conclusion. By contrast, in South Carolina, State lawmakers “consistently asserted that
[the law] will . . . deter voter fraud and enhance public confidence in the electoral
system.” South Carolina, 898 F. Supp. 2d at 43 (emphasis added). Plaintiffs respectfully
submit that the evidence to be presented at trial will demonstrate that North Carolina’s
present photo ID law fails to satisfy the Anderson-Burdick balancing test because the
State’s history of discrimination interacts with the law to place an undue burden on voters
with no valid justification.
CONCLUSION
For the foregoing reasons, the NAACP Plaintiffs respectfully submit that they
have satisfied their burden of establish violations of the United States Constitution and
the Voting Rights Act and are entitled to judgment in their favor.

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 Dated: January 19, 2016

Penda D. Hair
Edward A. Hailes, Jr.
Denise D. Lieberman
Donita Judge
Caitlin Swain
ADVANCEMENT PROJECT
Suite 850
1220 L Street, N.W.
Washington, DC 20005
Telephone: (202) 728-9557
E-mail:
phair@advancementproject.com
Irving Joyner (N.C. State Bar # 7830)
P.O. Box 374
Cary, NC 27512
Telephone: (919) 319-8353
E-mail: ijoyner@nccu.edu

Respectfully submitted,

By: /s/ Daniel T. Donovan
Adam Stein (N.C. State Bar # 4145)
Of Counsel
TIN FULTON WALKER & OWEN, PLLC
312 West Franklin Street
Chapel Hill, NC 27516
Telephone: (919) 240-7089
E-mail: astein@tinfulton.com
Daniel T. Donovan
Susan M. Davies
Bridget K. O’Connor
Michael Glick
K. Winn Allen
Ronald K. Anguas, Jr.
KIRKLAND & ELLIS LLP
655 Fifteenth St., N.W.
Washington, DC 20005
Telephone: (202) 879-5000
E-mail: michael.glick@kirkland.com

Case 1:13-cv-00658-TDS-JEP Document 414 Filed 01/19/16 Page 29 of 30

 CERTIFICATE OF SERVICE
I hereby certify that on January 19, 2016, I electronically filed the
foregoing NAACP PLAINTIFFS’ PRE-TRIAL BRIEF, using the CM/ECF system in
case numbers 1:13-cv-658, 1:13-cv-660, and 1:13-cv-861, which will send notification of
such filing to all counsel of record.
/s/ Daniel T. Donovan
Daniel T. Donovan

Case 1:13-cv-00658-TDS-JEP Document 414 Filed 01/19/16 Page 30 of 30