Hours after a 4th U.S. Circuit Court of Appeals ruling brought clarity about which parts of a 2013 election law would apply to the coming election, Gov. Pat McCrory and legislative leaders added a layer of uncertainty.
The Republicans plan to appeal the ruling to the U.S. Supreme Court, leaving questions about whether North Carolinians will be allowed to vote the same day that they register during the early voting period this year as well as whether provisional ballots cast outside a voter’s proper precinct will be counted.
A three-judge panel from the 4th Circuit ruled on Wednesday that two provisions of a 2013 elections overhaul bill cannot be enforced during the November election.
The judges – James Wynn of Martin County in Eastern North Carolina, William Floyd, a Brevard native, and Diana Motz of Maryland – issued a 2-1 decision in which they reinstated same-day voting and registration and out-of-precinct ballot casting.
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The ruling is just a step in a protracted legal process. The NAACP and others have sued the state asking for the 2013 law to be declared unconstitutional. Because that can’t be decided until a trial that is scheduled for July, the challengers asked to keep old election laws in place for this year’s general election.
In their majority opinion, Wynn and Floyd stated that U.S. District Court Judge Thomas Schroeder erred in August when he rejected the request by the NAACP, League of Women Voters, registered Democrats in North Carolina and others.
The opinion, written by Wynn, stated that Schroeder had considered the effects of the 2013 provision eliminating same-day registration in a vacuum and overlooked “the cumulative effect on minority access to the ballot box.”
On deciding to reinstate out-of-precinct votes, the majority wrote that Schroeder had set aside the “basic truth that even one disenfranchised voter – let alone several thousand – is too many ” when he based his decision on the small number of such ballots cast in previous elections.
Motz, the dissenter, said that while she was troubled by portions of Schroeder’s ruling, she thought changing the rules this close to the Nov. 4 election would lead to confusion.
“Election day is less than five weeks away, and other deadlines loom even closer. In fact, for the many North Carolina voters that have already submitted absentee ballots, this election is already underway,” Motz wrote in her dissent. “The majority’s grant of injunctive relief requires boards of elections in North Carolina’s 100 counties to offer same-day registration during the early voting period and count out-of-precinct provisional ballots – practices for which neither the state nor the local boards have prepared.
“In addition to the burden it places on the state, an about-face at this juncture runs the very real risk of confusing voters who will receive incorrect and conflicting information about when and how they can register and cast their ballots,” Motz added.
Wynn challenged that in his majority brief. “The right to vote is fundamental,” he wrote. “And a tight timeframe before an election does not diminish that right.”
Carl Tobias, a University of Richmond law professor, said he thought the U.S. Supreme Court would bring clarity within the next week or so, and pointed to an Ohio case about early voting to underscore his point.
At the start of the week, the U.S. Supreme Court blocked a federal appeals court ruling that would have restored seven days of early voting in Ohio.
The 5-4 ruling in the Ohio case reflected a partisan breakdown in many court decisions nationwide on voting issues. The five Republican-appointed justices upheld the voting restrictions enacted by Ohio’s Republican-controlled legislature in February. The four dissenters were appointed by Democrats.
“I would expect it to be a quick decision,” Tobias said Wednesday.
Photo IDs not affected by ruling
The challengers of the 2013 election law overhaul contend that the changes discriminate against African-Americans, Latinos and voters younger than 25.
They asked the court to block provisions that end same-day registration, curb the number of days on which people can vote early, prohibit people from casting ballots out of their assigned precincts and end a popular teen pre-registration program.
Republican leaders who shepherded the changes through the General Assembly to the governor’s desk argued that they are trying to ward off the potential for voter fraud, though few such cases have been brought forward.
The provision of the law that requires voters to present a photo ID at the polls does not go into effect until 2016, when presidential races will be on the ballot.
Critics and advocates of the law found positive messages in the federal appeals court ruling.
“The court’s order safeguards the vote for tens of thousands of North Carolinians. It means they will continue to be able to use same-day registration, just as they have during the last three federal elections,” said Dale Ho, director of the ACLU’s Voting Rights Project.
Phil Berger, president pro tem of the N.C. Senate, and Thom Tillis, speaker of the N.C. House of Representatives, praised the U.S. circuit judges for keeping many of the provisions intact, as did McCrory.
“I am pleased that the major parts of this popular and common sense bill were left intact and apply to the upcoming election,” McCrory said in a statement. “I have instructed our attorneys to appeal to the Supreme Court so that the two provisions rejected today can apply in the future and protect the integrity of our elections.”
The Rev. William J. Barber II, head of the North Carolina Conference of the NAACP, described the 4th Circuit ruling as “an important step to ensure that this election will remain free, fair, and accessible to all North Carolina voters.” The larger battle, he pointed out, is in the trial coming next summer.
“Our fight is not yet over,” Barber said in a statement. “We will charge ahead until this law is permanently overturned in the full trial next summer. Until then, we will continue to take our movement to the streets to make sure all people in our democracy have an equal voice in this and all elections.”