Amicus Curiae Brief — Mark Brnovich, Attorney General of Arizona, et al., Petitioners v. Democratic National Committee, et al.

Nos. 19-1257, 19-1258

In the Supreme Court of the United

States

MARK BRNOVICH, IN HIS OFFICIAL CAPACITY AS

ARIZONA ATTORNEY GENERAL, ET AL.,

Petitioners,

v.

DEMOCRATIC NATIONAL COMMITTEE, ET AL.,

Respondents.

----------------------ARIZONA REPUBLICAN PARTY, ET AL.,

Petitioners,

v.

DEMOCRATIC NATIONAL COMMITTEE, ET AL.,

Respondents

On Writ of Certiorari to the

United States Court of Appeals for the Ninth

Circuit

BRIEF OF THE NORTH CAROLINA, MEMPHIS, CENTRAL VIRGINIA, AND MIAMIDADE CHAPTERS OF THE A. PHILIP RANDOLF INSTITUTE AS AMICI CURIAE IN

SUPPORT OF RESPONDENTS

ALLISON J. RIGGS

MITCHELL D. BROWN

JONATHAN C. AUGUSTINE

KATELIN S. KAISER

Southern Coalition for

Social Justice

1415 West Highway 54,

Suite 101

Durham, NC 27707

(919) 323-3380

CHARLES A. ROTHFELD

Counsel of Record

LOGAN S. PAYNE

Mayer Brown LLP

1999 K Street, NW

Washington, DC 20006

(202) 263-3000

crothfeld@mayerbrown.com

(Counsel continued on inside cover)

2

LEE H. RUBIN

Mayer Brown LLP

Two Palo Alto Square,

Suite 300

3000 El Camino Real

Palo Alto, CA 94306

(650) 331-2000

WHITNEY A. SUFLAS

Mayer Brown LLP

1221 Avenue of the

Americas

New York, NY 10020

(212) 506-2500

Counsel for Amici Curiae

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES...................................... iii

INTEREST OF THE AMICI CURIAE .......................1

INTRODUCTION AND SUMMARY OF

ARGUMENT ..........................................................4

ARGUMENT ...............................................................5

I. State and local governments have

frequently used discriminatory voting

practices, both before and after Shelby

County. ...................................................................5

A. Voter identification laws ..................................6

B. Voter list purges ...............................................8

1. Alabama .......................................................8

2. Texas ............................................................9

C. Registration restrictions................................. 10

1. Mississippi ................................................. 10

2. North Carolina .......................................... 11

3. Georgia....................................................... 12

D. Polling location changes and closures ........... 13

1. Texas .......................................................... 14

2. Georgia....................................................... 15

3. Arizona....................................................... 15

II. The test applied by the Ninth Circuit is

clear and workable. .............................................. 16

A. Section 2 applies to discriminatory

voting practices. .............................................. 16

ii

TABLE OF CONTENTS—continued

Page

B. The Section 2 standard, which focuses

on local conditions and history, is

workable and effective. ................................... 18

III.Amici’s experience in North Carolina in

recent years vividly demonstrates the need

for a vigorous Section 2. ....................................... 21

A. OOP voting is necessary to safeguard

minority voters in North Carolina. ................ 22

1. Poverty in North Carolina ........................ 23

2. High residential mobility .......................... 24

3. Lack of transportation .............................. 25

B. Elimination of OOP voting caused

disenfranchisement of minority voters

in North Carolina. .......................................... 26

1. Timothy and Yvonne Washington ............ 26

2. Michael Owens .......................................... 27

3. Gwendolyn Farrington .............................. 28

4. Terrilin Cunningham ................................ 29

CONCLUSION .......................................................... 30

iii

TABLE OF AUTHORITIES

Page(s)

Cases

A. Philip Randolph Inst. v. Husted,

907 F.3d 913 (6th Cir. 2018) .................................. 2

Ala. St. Conf. of NAACP v. Alabama,

No. 2:16-CV-731-WKW, 2020 WL.

583803 (M.D. Ala. Feb. 5, 2020) .......................... 20

Aranda v. Van Sickle,

600 F.2d 1267 (9th Cir. 1979) .............................. 19

Black Voters v. McDonough,

421 F. Supp. 165 (D. Mass. 1976) ....................... 19

Bradas v. Rapides Parish Police Jury,

508 P.2d 1109 (5th Cir. 1975) .............................. 19

Burton v. City of Belle Glade,

178 F.3d 1175 (11th Cir. 1999) ...................... 20, 21

Chisom v. Roemer,

501 U.S. 380 (1991) ............................................. 18

City of Mobile v. Bolden,

446 U.S. 44 (1980) ................................................ 17

Fair Fight Action v. Raffensperger,

No. 1:18-cv-05391 (N.D. Ga. Feb. 19,

2019) ..................................................................... 13

Feldman v. Ariz. Sec’y of State’s Off.,

843 F.3d 366 (9th Cir. 2016) ................................ 21

iv

TABLE OF AUTHORITIES—continued

Page(s)

Ga. Coal. for the People’s Agenda, Inc. v.

Kemp, 347 F. Supp. 3d 1251 (N.D.

Ga. 2018) .............................................................. 13

James v. Bartlett,

607 S.E.2d 638 (N.C. 2005) .................................. 22

League of United Latin Am. Citizens of

Ariz. v. Reagan, No. 2:17-v-0102 (D.

Ariz. June 18, 2018) ............................................. 11

League of Women Voters of Mo. v.

Ashcroft, 336 F. Supp. 3d 998 (W.D.

Mo. 2018) ................................................................ 2

League of Women Voters of N.C. v.

North Carolina, 769 F.3d 224 (4th

Cir. 2014) .................................................... 6, 18, 21

Lee v. Va. St. Bd. of Elections,

188 F. Supp. 3d 577 (E.D. Va. 2016) ................... 20

Lichtenstein v. Hargett,

No. 3:20-cv-00736, 2020 U.S. Dist.

LEXIS 174701 (M.D. Tenn. 2020) ......................... 2

Memphis A. Phillip Randolph Inst. v.

Hargett, 473 F. Supp. 3d 789 (M.D.

Tenn. 2020)............................................................. 2

N.C. St. Conf. of NAACP v. Cooper, 430

F. Supp. 3d 15 (M.D.N.C. 2019) .......................... 20

v

TABLE OF AUTHORITIES—continued

Page(s)

N.C. St. Conf. of the NAACP v.

McCrory, 831 F.3d 204 (4th Cir.

2016) ............................................................. passim

Ohio St. Conf. of NAACP v. Husted, 768

F.3d 524 (6th Cir. 2014) ................................. 18, 20

PUSH v. Allain, 674 F. Supp. 1245

(N.D. Miss. 1987) ................................................. 10

Robinson v. Comm’rs Ct.,

505 F.2d 674 (5th Cir. 1974) ................................ 19

Shelby Cty. v. Holder,

570 U.S. 529 (2013) ............................................ 4, 6

Tex. League of United Latin Am.

Citizens v. Whitley, No. CV SA-19CA-074-FB, 2019 WL 7938511 (W.D.

Tex. Feb. 27, 2019) ................................................. 9

Texas v. Holder, 888 F. Supp. 2d 113

(D.D.C. 2012) .......................................................... 7

Veasey v. Abbott, 830 F.3d 216 (5th Cir.

2016) ........................................................... 7, 20, 21

White v. Regester, 412 U.S. 755 (1973) ..................... 18

Zimmer v. McKeithen, 485 F.2d 1297

(5th Cir. 1973) ...................................................... 19

vi

TABLE OF AUTHORITIES—continued

Page(s)

Statutes

N.C. Gen. Stat. § 163-55 ........................................... 22

National Voter Registration Act, 52

U.S.C. § 20507(a)(4) ............................................... 8

Voting Rights Act Amendments of 1982,

Pub. L. No. 97-205, 96 Stat 131

(codified at 52 U.S.C. § 10301(a)) .......................... 4

Other Authorities

Rob Arthur & Allison McCann, How the

Gutting of the Voting Rights Act Led

to Hundreds of Closed Polls, VICE

(Oct. 16, 2018) ...................................................... 15

Jonathan Brater et al., Purges: A Growing Threat to the Right to Vote,

BRENNAN CTR. FOR JUST. (2018) ............................ 9

The Effects of Shelby County v. Holder,

BRENNAN CTR. FOR JUST. (Aug. 6,

2018) ..................................................................... 12

New Voting Restrictions in America,

BRENNAN CTR. FOR JUST. (Nov. 18,

2019) ..................................................................... 13

H.R. Rep. No. 97-227 (1981).................................. 8, 17

vii

TABLE OF AUTHORITIES—continued

Page(s)

Democracy Diverted: Polling Place Closures and the Right to Vote, LEADERSHIP CONF. EDUC. FUND (Sept. 2019) ............. 14, 15

Mark Niesse, Changes Coming to

Georgia Purges, Vote Counts and

Voting Machines, ATLANTA J.-CONST.

(Mar. 19, 2019) ..................................................... 13

Mark Niesse & Maya Prabhu, Voting

Precincts Closed Across Georgia

Since Election Oversight Lifted,

ATLANTA J.-CONST. (Sept. 4, 2018) ...................... 15

S. Rep. No. 97-417 (1982) .................................. passim

STATE OF ARIZONA ELECTIONS

PROCEDURES MANUAL (2014) ............................... 11

Alexa Ura, Texas Will End Its Botched

Voter Citizenship Review and Rescind Its List of Flagged Voters,

TEXAS TRIB. (Apr. 26, 2019) ................................. 10

U.S. Dep’t of Justice, Civ. Rts. Div.,

Objection Letter (Dec. 10, 1975) ............................ 9

U.S. Dep’t of Justice, Civ. Rts. Div.,

Objection Letter (May 2, 1977) ............................ 14

U.S. Dep’t of Justice, Civ. Rts. Div.,

Objection Letter (Sept. 11, 1980)......................... 12

viii

TABLE OF AUTHORITIES—continued

Page(s)

U.S. Dep’t of Justice, Civ. Rts. Div.,

Objection Letter (June 5, 1981) ........................... 14

U.S. Dep’t of Justice, Civ. Rts. Div.,

Objection Letter (Sept. 18, 1981)......................... 12

U.S. Dep’t of Justice, Civ. Rts. Div.,

Objection Letter (Sept. 25, 1981)........................... 8

U.S. Dep’t of Justice, Civ. Rts. Div.,

Objection Letter (Oct. 2, 1981) .............................. 8

U.S. Dep’t of Justice, Civ. Rts. Div.,

Objection Letter (Oct. 26, 1981) ............................ 8

U.S. Dep’t of Justice, Civ. Rts. Div.,

Objection Letter (Mar. 5, 1982) ........................... 12

U.S. Dep’t of Justice, Civ. Rts. Div.,

Objection Letter (Dec. 11, 1984) ............................ 8

U.S. Dep’t of Justice, Civ. Rts. Div.,

Objection Letter (Nov. 16, 1993) ......................... 11

U.S. Dep’t of Justice, Civ. Rts. Div.,

Objection Letter (Apr. 18, 1994) .......................... 14

U.S. Dep’t of Justice, Civ. Rts. Div.,

Objection Letter (Sept. 22, 1997)......................... 11

U.S. Dep’t of Justice, Civ. Rts. Div.,

Objection Letter (May 29, 2009) .................... 12, 13

ii

TABLE OF AUTHORITIES—continued

Page(s)

U.S. Dep’t of Justice, Civ. Rts. Div.,

Objection Letter (Mar. 12, 2012) ........................... 7

BRIEF OF THE NORTH CAROLINA, MEMPHIS, CENTRAL VIRGINIA, AND MIAMI-DADE

CHAPTERS OF THE A. PHILIP RANDOLF INSTITUTE AS AMICI CURIAE IN

SUPPORT OF RESPONDENTS

INTEREST OF THE AMICI CURIAE1

Amici are four chapters (North Carolina, Memphis, Central Virginia, and Miami-Dade) of the A.

Philip Randolph Institute (“APRI”) located across the

South. Amici are deeply interested in the outcome of

this case because the reading of Section 2 of the Voting

Rights Act (“VRA”) proposed by petitioners would

eviscerate vital protections for voters of color, particularly low-wealth/working-class Black voters, which

enable them to participate on equal footing in the political process.

Amici provide services to Black voters to help

them overcome a multitude of complex, intersectional

barriers rooted in poverty that impede their access to

the ballot box. Amici desire to illustrate for the Court

the relationship between their efforts to help Black

voters in the South overcome impediments to political

participation—particularly impediments caused by

the legacy of socioeconomic discrimination against

Black voters—and the need to uphold full and robust

protections under Section 2 of the VRA.

APRI is a non-profit organization founded in 1965

that grew out of the legacy of African American trade

Pursuant to Rule 37.6, amici affirm that no counsel for a party

authored this brief in whole or in part and that no person other

than amici and its counsel made a monetary contribution to its

preparation or submission. The parties have submitted blanket

letters of consent to the filing of amicus briefs.

1

2

unionists’ advocacy for civil rights and the passage of

the VRA to advance racial equity and economic justice. Today, APRI has 150 chapters in 36 states. APRI

chapters have filed lawsuits across the United States

challenging state efforts that unconstitutionally burden the right to vote for historically disenfranchised

communities. See A. Philip Randolph Inst. v. Husted,

907 F.3d 913 (6th Cir. 2018); N.C. St. Conf. of NAACP

v. McCrory, 831 F.3d 204, 214 (4th Cir. 2016); Lichtenstein v. Hargett, No. 3:20-cv-00736, 2020 U.S. Dist.

LEXIS 174701 (M.D. Tenn. 2020); Memphis A. Phillip

Randolph Inst. v. Hargett, 473 F. Supp. 3d 789 (M.D.

Tenn. 2020); League of Women Voters of Mo. v. Ashcroft, 336 F. Supp. 3d 998 (W.D. Mo. 2018).

The North Carolina APRI is a statewide organization with local chapters in eight regions or cities. It

works to increase access to the polls, voter registration, and voter education, particularly among working-class Black people. The North Carolina APRI also

organizes transportation to the polls throughout the

early voting period and, on Election Day, concentrates

its efforts in predominantly Black neighborhoods. Additionally, the North Carolina APRI is involved in

many other activities that support significant labor

and workers’ rights; among other projects it organizes

community services programs, attempts to reduce

health disparities between White and Black communities, and runs a Feeding the Hungry initiative,

which feeds over 800 people per month.

The Central Virginia APRI is dedicated to advancing voter education, voter registration, and voter participation across the areas of Chesterfield County,

Henrico County, and the City of Richmond. It works

to ensure full political participation among workingclass, elderly, and physically challenged Black people

3

who disproportionately lack transportation, access to

the internet, and computer literacy. To do this, the

Central Virginia APRI utilizes local urban communication outlets to promote its “All Souls to the Polls”

program, which offers free rides to polling places during early voting and on Election Day.

The Memphis APRI in Tennessee works to

strengthen ties between the labor movement and the

community, increase the political impact of Black voters, and implement structural changes through civic

engagement. It sponsors voter education and “Get Out

the Vote” programs. Among other efforts, the Memphis APRI successfully challenged the limits Tennessee imposed on qualifying for an absentee ballot, making such ballots available to first-time voters who registered to vote by mail or online if they are otherwise

eligible.

The Miami-Dade APRI is the exclusive and chartered local affiliate encompassing the entirety of Miami-Dade County, Florida. It fosters and implements

efforts to achieve equality, social and economic justice,

and full participation in the electoral process by

strengthening the bonds between working-class people, organized labor, and the Black community. To

that end, its members work to register, educate, and

support voter participation and host a variety of programs focused on educating communities and labor

organization members on current issues, proposed

state constitutional amendments, voter registration,

and voter participation. To help get low-income voters

and voters of color to early voting and to their correct

polling precinct, the Miami-Dade APRI mails postcards with polling site information; it also participates

in phone banking, community walks, and “Get Out the

Vote” rallies.

4

INTRODUCTION AND SUMMARY OF

ARGUMENT

Petitioners maintain that Section 2 of the VRA

does not address restrictions on the “time, place or

manner” of voting, such as limits on out-of-precinct

(“OOP”) voting, that are race-neutral and do not exceed the “ordinary” burdens of voting. Arizona Republican Party (“ARP”) Br. at 15, 16. Section 2, they continue, is primarily designed to target vote dilution. Recent vote denial claims under the Section, they conclude, are “part of a concerted effort to use the federal

courts to radically transform the Nation’s voting practices for partisan advantage.” Id. at 1. But these contentions are manifestly wrong. In addressing the

flaws in petitioners’ position, amici make three principal points:

First, petitioners’ attempt to find support for

their theory in the VRA’s history is sophistic. Section

2 found limited use against discriminatory voting

practices prior to this Court’s decision in Shelby

County v. Holder, 570 U.S. 529 (2013), because the

Justice Department denied preclearance for many of

those practices under Section 5, making Section 2 litigation unnecessary. But after Shelby County, there

has been an explosion of such practices, making a

meaningful Section 2 remedy essential.

Second, there can be no serious doubt that, as the

Court recognized in Shelby County, Section 2 is a “permanent, nationwide ban on racial discrimination in

voting.” 570 U.S. at 557. Congress enacted Section 2

to be an all-purpose weapon against voting practices

that “result[] in a denial or abridgement of the right

of any citizen of the United States to vote on account

of race or color.” Voting Rights Act Amendments of

1982, Pub. L. No. 97-205, 96 Stat 131 (codified at 52

5

U.S.C. § 10301(a)) (amending Section 2). Courts consistently have recognized that restrictions on the

time, place, or manner of elections may be used to suppress minority voting. And the test applied by the

Ninth Circuit to assess the legality of the restrictions

at issue in this case has been applied for decades, in a

manner that has been workable and effective.

Third, amici offer a detailed look at practices regarding use of OOP voting in North Carolina, to illustrate how facially neutral schemes can have a profound, and inevitable, adverse effect on minority voting—precisely the outcome that Congress meant to

avoid when it enacted and amended the VRA. That

experience confirms the essential nature of an effective Section 2 remedy.

ARGUMENT

I.

State and local governments have frequently used discriminatory voting practices, both before and after Shelby County.

In petitioners’ telling, the use of discriminatory

voting practices by state and local government—as opposed, perhaps, to vote dilution and abusive redistricting schemes—is not a serious problem at all. Their evidence for this assertion is the observation that Section 2 was infrequently invoked against such practices

prior to Shelby County (see ARP Br. at 6), and the

claim that facially neutral voting rules pose no danger

of denying or abridging minority voting rights. Id. at

22-25.

But petitioners’ approach to Section 2 rests on a

profound misunderstanding of both the relevant history and the reality of voting practices, as reflected in

state law and judicial decisions. In fact, private litigants had little occasion to invoke Section 2 against

6

discriminatory practices pre-Shelby County because

the Justice Department rejected those—sadly ubiquitous—practices under Section 5 of the VRA. See

League of Women Voters of N.C. v. North Carolina,

769 F.3d 224, 239 (4th Cir. 2014) (the “predominance

of vote dilution” cases under Section 2 “likely

[stemmed] from the effectiveness of the now-defunct

Section 5 preclearance requirements that stopped

would-be vote denial from occurring”). And in the

years since the decision in Shelby County made Section 5 enforcement unavailable, many state and local

jurisdictions have resurrected strikingly similar discriminatory practices, with disturbingly adverse effects on minority voting participation. A robust Section 2 remedy, available to challenge these discriminatory “time, place, or manner” restrictions on voting,

is therefore essential to give force to the promise that

“any racial discrimination in voting is too much.”

Shelby Cty., 570 U.S. at 557.

Amici document below a sample of voting practices, both pre- and post-Shelby County, that had the

effect of suppressing minority voting participation.

These practices contribute to the totality of circumstances making it essential that voters of color, particularly in locales across the South, have access to a

meaningful Section 2 remedy.

A. Voter identification laws

Certain States require voters to present a government-issued photo identification in order to vote.

These strict voter identification laws can have discriminatory results because racial minorities disproportionately lack government photo identifications

and face economic barriers to acquiring them.

7

In 2011, Texas enacted SB 14, a strict voter identification law estimated to disenfranchise as many as

600,000 registered voters because they lacked the

proper identification. U.S. Dep’t of Justice, Civ. Rts.

Div.,

Objection

Letter

(Mar.

12,

2012),

https://perma.cc/J3NQ-6Y4Q. Denying preclearance,

the Department of Justice noted that, “according to

the state’s own data, a Hispanic registered voter is at

least 46.5 percent, and potentially 120.0 percent, more

likely than a non-Hispanic registered voter to lack

[the required] identification”—a “statistically significant” disparity. Ibid. A district court agreed with the

Justice Department that the law was “likely to lead to

‘retrogression in the position of racial minorities with

respect to their effective exercise of the electoral franchise,’” and that the State failed to demonstrate that

the law lacked discriminatory purpose or effect. Texas

v. Holder, 888 F. Supp. 2d 113, 144 (D.D.C. 2012) (citation omitted), vacated and remanded, 570 U.S. 928

(2013) (vacating and remanding in light of Shelby

County).

Within hours of the Shelby County decision, the

Texas Attorney General announced that SB 14 would

take immediate effect. See Jennifer L. Patin, The Voting Rights Act at 50: The Texas Voter ID Story, LAW.

COMM. FOR C.R. UNDER L. 1 (Aug. 6, 2015). The Fifth

Circuit upheld a decision striking down the law under

Section 2 of the VRA, among other grounds. Veasey v.

Abbott, 830 F.3d 216, 272 (5th Cir. 2016). The district

court had found “a stark, racial disparity between

those who possess or have access to SB 14 ID, and

those who do not,” and that “SB 14 worked in concert

with Texas’s legacy of state-sponsored discrimination

to bring about this disproportionate result.” Id. at 264265.

8

B. Voter list purges

Federal law requires States to routinely audit

their voter rolls and make reasonable efforts to purge

the names of ineligible registrants. National Voter

Registration Act, 52 U.S.C. § 20507(a)(4). But both before and after Shelby County, States and localities

have misused list maintenance to eliminate minorities from the rolls.

1.

Alabama

In the early 1980s, several Alabama counties located in the State’s “Black Belt” forced voters to “reidentify” themselves in order to remain on the voter

rolls because Black political participation was perceived as “threatening to the status quo.” H.R. Rep.

97-227 at 16 (1981) (“H.R. Rep.”).

The Department of Justice intervened in four separate counties to stop the process. U.S. Dep’t of Justice, Civ. Rts. Div., Objection Letter (Dec. 11, 1984)

https://perma.cc/5SME-8L3U; U.S. Dep’t of Justice,

Civ. Rts. Div., Objection Letter (Oct. 26, 1981)

https://perma.cc/KT82-TBEF; U.S. Dep’t of Justice,

Civ. Rts. Div., Objection Letter, (Oct. 2, 1981)

https://perma.cc/8ZJU-TFJM; U.S. Dep’t of Justice,

Civ. Rts. Div., Objection Letter (Sept. 25, 1981)

https://perma.cc/7GMV-QR6K. Due to the continuing

effects of past disenfranchisement, the lower socioeconomic status of Black residents, and the limited

hours and locations at which to “reidentify,” the Justice Department concluded in the first of these reviews that the protocol would disproportionately burden Black voters. U.S. Dep’t of Justice, Civ. Rts. Div.,

Objection

Letter

(Sept.

25,

1981),

https://perma.cc/7GMV-QR6K.

9

After Shelby County, no longer subject to preclearance, formerly covered States began removing voters

at disproportionately high rates. Jonathan Brater et

al., Purges: A Growing Threat to the Right to Vote,

BRENNAN

CTR.

FOR

JUST.

3-4

(2018),

https://perma.cc/F6MA-NJQA. In Alabama, for example, counties rapidly purged the rolls. Id. at 26-27 app.

C. In Shelby County itself, the removal rate doubled

from 2013 to 2014, when 18 percent of the county’s

voters were purged. Id. at 26 app. C. With removal

from the rolls came a surge in provisional ballot usage,

suggesting people may have been incorrectly removed.

Ibid.

2.

Texas

In 1975, Texas sought to purge its entire voter roll

and require prospective voters to re-register. The Justice Department objected. U.S. Dep’t of Justice, Civ.

Rts. Div., Objection Letter (Dec. 10, 1975),

https://perma.cc/WA7N-JEXT. The Department was

concerned that “a substantial number” of minority

voters would be “confused, unable to comply with the

statutory registration requirements * * * or only able

to comply with substantial difficulty.” Id. at 3. Given

problems minorities faced registering in the past, the

new registration procedure threatened to “cause significant frustration and result in creating voter apathy among minority citizens, thus erasing the gains

already accomplished in registering minority voters.”

Ibid.

After Shelby County, a Texas official challenged

the citizenship status of almost 100,000 registered

voters, many incorrectly. Tex. League of United Latin

Am. Citizens v. Whitley, No. CV SA-19-CA-074-FB,

2019 WL 7938511, at *1 (W.D. Tex. Feb. 27, 2019).

Voters errantly received advisories threatening to

10

purge them from the rolls unless they proved their citizenship. A federal court found that “perfectly legal,

naturalized Americans were burdened with * * * hamhanded and threatening correspondence from the

state which did not politely ask for information but

rather exemplifies the power of government to strike

fear and anxiety and to intimidate the least powerful

among us.” Ibid. Only after extensive litigation did the

State end the review in a settlement. Alexa Ura, Texas

Will End Its Botched Voter Citizenship Review and Rescind Its List of Flagged Voters, TEXAS TRIB. (Apr. 26,

2019), https://perma.cc/ZR4Z-BJLS.

C. Registration restrictions

Registration restrictions can serve as a voter suppression tactic by disproportionately limiting the ability of minorities to register to vote. Prior to Shelby

County, the Department of Justice preempted dual

registration requirements, mail-in and pre-registration restrictions, and other state laws impeding minority registration—many of which have reemerged

since 2013.

1.

Mississippi

One of the most notorious registration restrictions

was Mississippi’s “dual-registration” system, which

required voters to register separately for federal and

municipal elections. The system was finally challenged and struck down under the VRA in 1987.

PUSH v. Allain, 674 F. Supp. 1245 (N.D. Miss. 1987),

aff’d sub nom. PUSH v. Mabus, 932 F.2d 400 (5th Cir.

1991). But a decade later, the Department of Justice

found that Mississippi’s administrative plan for implementing the National Voter Registration Act had

de facto resurrected a dual-registration system—a result the Department found “hardly surprising” given

11

“the long history of discrimination against [B]lack citizens in Mississippi, and the persistence of severe socio-economic disadvantages among [B]lack citizens in

Mississippi.” U.S. Dep’t of Justice, Civ. Rts. Div., Objection Letter (Sept. 22, 1997), https://perma.cc/NS6PKBKY.

Following Shelby County, several states, including Arizona, have attempted to implement dual-registration regimes. See, e.g., STATE OF ARIZONA ELECTIONS

PROCEDURES

MANUAL

10-17

(2014),

https://perma.cc/VM7L-8ZE7. Arizona eventually

agreed to eliminate the dual-registration system in a

2018 federal consent decree after being sued by civil

rights organizations. See Consent Decree, League of

United Latin Am. Citizens of Ariz. v. Reagan, No. 2:17v-0102 (D. Ariz. June 18, 2018), https://perma.cc/4CHU4JZ.

2.

North Carolina

The development of registration restrictions in

North Carolina demonstrates how the same voter suppression tactics have continued in former preclearance States. In 1993, the Department of Justice objected to an attempt by North Carolina to delay implementing a mail-in registration system—which the

State itself acknowledged as an important step in

equalizing voter registration rates between White and

non-White citizens. U.S. Dep’t of Justice, Civ. Rts.

Div., Objection Letter 2-3 (Nov. 16, 1993),

https://perma.cc/6VG5-5MQD.

In the immediate aftermath of Shelby County, the

North Carolina legislature enacted an omnibus voting

bill that abridged the early voting period, eliminated

same-day registration and provisional OOP voting,

and stopped pre-registration of 16- and 17-year-olds.

12

The Effects of Shelby County v. Holder, BRENNAN CTR.

FOR JUST. (Aug. 6, 2018), htps://perma.cc/QF2R-TCH7

(discussing House Bill 589). The effect on amici and

Black voters in North Carolina will be detailed below.

3.

Georgia

Georgia is similar. In the 1980s, the Department

of Justice blocked state- and county-level efforts in the

State to restrict or ban voter registration drives in areas with under-registered Black populations and to

reduce satellite voting registration sites. U.S. Dep’t of

Justice, Civ. Rts. Div., Objection Letter (Mar. 5, 1982),

https://perma.cc/2QRL-LJB2; U.S. Dep’t of Justice,

Civ. Rts. Div., Objection Letter (Sept. 11, 1980),

https://perma.cc/ZYU9-GEDU. The Department also

objected to a state statute that required voters to show

a driver’s license, birth certificate, or “any other document reasonably reflecting” their “true identity,” finding that the requirement might produce a discriminatory result against Black voters, who were already

registered at a lower rate. U.S. Dep’t of Justice, Civ.

Rts. Div., Objection Letter 1-2 (Sept. 18, 1981),

https://perma.cc/EK6Y-P48S.

In 2009, the Department of Justice objected to a

Georgia law requiring officials to compare voter registration information against other state-held information, including driver’s licenses, Social Security,

and citizenship records. If the records did not match,

officials could call applicants to appear and address

the disparity. The Department found that officials

placed many people on the no-match list due to typographical errors or recent naturalization and that

“[t]he impact of these errors” fell “disproportionately

on minority voters.” U.S. Dep’t of Justice, Civ. Rts.

Div.,

Objection

Letter

(May

29,

2009),

https://perma.cc/JM2E-8XWK. It noted that “[t]hese

13

burdens are real, are substantial, and are retrogressive for minority voters.” Ibid.

In 2017, Georgia enacted a strikingly similar “no

match, no vote” law with the same results, except this

time it was not subject to preclearance requirements.

Officials held up registration applications that did not

precisely match state records, impeding over 50,000

registration applications in 2018. Mark Niesse,

Changes Coming to Georgia Purges, Vote Counts and

Voting Machines, ATLANTA J.-CONST. (Mar. 19, 2019),

https://perma.cc/8BJP-YUEC.

Lawsuits claimed that the policy “unfairly and

disproportionately prevent[ed] voters of color from

voting.” Amended Complaint for Declaratory and Injunctive Relief ¶¶ 82-93, Fair Fight Action v. Raffensperger, No. 1:18-cv-05391 (N.D. Ga. Feb. 19, 2019),

ECF 41. They pointed to the discriminatory effect on

Black voters, who represented 70% of the “pending”

voter registrations, and new citizens, whose applications were marked as pending if they had not alerted

the state driver’s license agency of their naturalization. Id. ¶¶ 90-91. A federal court enjoined part of the

policy in 2018, and Georgia largely ended it through

legislation in 2019. Ga. Coal. for the People’s Agenda,

Inc. v. Kemp, 347 F. Supp. 3d 1251, 1260-1268 (N.D.

Ga. 2018); New Voting Restrictions in America, BRENNAN

CTR. FOR JUST. 3 (Nov. 18, 2019),

https://perma.cc/5FCK-E8VU (discussing HB 316).

D. Polling location changes and closures

When counties move or close polling locations, minority voters may struggle to get to the polls, cut off

from their franchise by distance and lack of transportation. They sometimes are unaware that their polling

location has changed. Location changes also work

14

hand-in-glove with OOP voting restrictions like those

at issue in this case. When polling locations change,

voters may vote at the wrong location.

Since Shelby County, jurisdictions previously covered by preclearance have unleashed a torrent of location changes. Between 2012 and 2018, these jurisdictions have closed at least 1,688 polling sites. Democracy Diverted: Polling Place Closures and the Right to

Vote, LEADERSHIP CONF. EDUC. FUND 12 (Sept. 2019),

https://perma.cc/2B9M-HCZ7.

1.

Texas

Prior to Shelby County, the Department of Justice

lodged numerous objections to polling location

changes that were likely to have a discriminatory effect. In many cases, election officials moved polling locations to places convenient for White voters and inconvenient for minority voters. The new polling places

frequently required minority voters to travel unreasonable distances. In 1991, a hospital district in Texas

reduced the polling places for its elections from 13 to

just 1, placing the sole location in a majority-White

city. This new location was 30 miles away from most

Black voters and 19 miles from most Mexican American voters, leading the total votes to fall from 2,300 in

the previous election to just 300. U.S. Dep’t of Justice,

Civ. Rts. Div., Objection Letter 1 (June 5, 1981),

https://perma.cc/RAX7-YGXA. Often, such new locations lacked meaningful transportation options, either

by car or public transportation. See, e.g., U.S. Dep’t of

Justice, Civ. Rts. Div., Objection Letter (Apr. 18,

1994), https://perma.cc/VP2D-J8DY; U.S. Dep’t of Justice, Civ. Rts. Div., Objection Letter (May 2, 1977),

https://perma.cc/GN9H-A68U.

15

Texas has closed 750 polling places from 2012 to

2018, mostly after Shelby County, disproportionately

affecting the State’s Latino and Black voters. Democracy Diverted: Polling Place Closures and the Right to

Vote, supra, at 26.

2.

Georgia

Georgia has closed at least 214 polling locations

since 2012, mostly after Shelby County. Democracy

Diverted: Polling Place Closures and the Right to Vote,

supra, at 12. More than half of the counties to close

polling places had a significant Black population.

Mark Niesse & Maya Prabhu, Voting Precincts Closed

Across Georgia Since Election Oversight Lifted, ATLANTA

J.-CONST.

(Sept.

4,

2018),

https://perma.cc/T5JN-DNUX.

3.

Arizona

Arizona has closed 320 polling sites since 2012,

with Maricopa County alone closing 171 locations,

more than any other county nationwide. Democracy

Diverted: Polling Place Closures and the Right to Vote,

supra, at 17. These closures have especially burdened

the State’s Indigenous peoples, with the Chairman of

the Pascua Yacqui Tribe describing them as “reminiscent of when Native American voting rights were limited.” Rob Arthur & Allison McCann, How the Gutting

of the Voting Rights Act Led to Hundreds of Closed

Polls, VICE (Oct. 16, 2018), https://perma.cc/Z4NQBA2K.

* * *

As this account shows, minority voters have suffered state-imposed impediments in southern States

for decades. Prior to Shelby County, minority voter

turnout improved not because States had ceased these

16

discriminatory practices, but because the Department

of Justice succeeded in impeding them. Petitioners

draw the wrong lesson from this history: The ongoing

reality of voter discrimination calls for a robust Section 2 test, not an interpretation of the statute that

would enfeeble it.

II. The test applied by the Ninth Circuit is clear

and workable.

Petitioners also make additional errors that stem

from a misunderstanding of the VRA’s history and application. They are wrong to argue that Section 2 is

not directed at discriminatory voting practices. And

their assertion that the test applied in this case by the

Ninth Circuit is unworkable cannot be squared with

myriad decisions that have applied that test over the

last half-century.

A. Section 2 applies to discriminatory voting practices.

The ARP petitioners assert that Section 2 is aimed

only at vote-dilution and redistricting claims, and not

at “race-neutral regulation of the when, where and

how of voting.” ARP Br. at 36. Petitioners posit that

such regulations violate Section 2 only when they impose “extraordinary” burdens on the ability to vote or

are not race-neutral, imagining that a contrary reading would have rendered “nearly every electoral system in the country” illegal since 1982. Id. at 36-38.

Petitioners are wrong. When Congress amended

Section 2, it was concerned with all manner of discriminatory voting practices; Congress was aware of

and meant to proscribe discrimination perpetrated by

restrictions on the “how” of voting. The House Judiciary Committee heard “[e]xtensive testimony * * * de-

17

tailing the variety of methods used by inventive registrars and other state officials to keep racial minorities

off the voting rolls and out of the voting booths.” H.R.

Rep. at 13-14. “Despite gains in increased minority

registration and voting,” the Committee observed

“continued manipulation of registration procedures

and the electoral process which effectively exclude minority participation from all stages of the political process.” Id. at 14. The Committee’s Report highlighted,

and condemned, “inconvenient location and hours of

registration, dual registration for county and city elections * * * frequent and unnecessary purgings and

burdensome registration requirements.” Ibid.

The Senate Judiciary Committee Report (“the

Senate Report”) that accompanied the 1982 VRA

amendments likewise recognized Section 2 as the

“major statutory prohibition of all voting rights discrimination.” S. Rep. No. 97-417 at 30 (1982) (“S.

Rep.”) (emphasis added). Any voting practice that “operates to deny the minority plaintiff an equal opportunity to participate and to elect candidates of their

choice” violates Section 2. Ibid. This requirement that

the political process be “equally open” to minority

groups “extends beyond formal or official bars to registering and voting, or to maintaining a candidacy.”

Ibid. The Senate Report illustrates this point with a

series of examples: absentee ballots made available

only to White voters; a voter purge that was unfair,

unnecessary or limited opportunities for re-registration; and “administration of an election” with a discriminatory result. Id. at 30 n.119.

No doubt, Congress’s foremost concern in amending Section 2 in 1982 was addressing this Court’s

then-recent decision in City of Mobile v. Bolden, 446

U.S. 44 (1980). See S. Rep. at 2. But Congress also was

18

keenly aware of the many nefarious ways in which

state officials can use facially race-neutral regulations

of voting practices to suppress minority vote. See id.

at 30. It intended Section 2 to address all forms of discriminatory conduct enacted through seemingly neutral electoral regulations. See, e.g., League of Women

Voters of N.C., 769 F.3d at 239 (“Section 2's plain language makes clear that vote denial is precisely the

kind of issue Section 2 was intended to address”); Ohio

St. Conf. of NAACP v. Husted, 768 F.3d 524, 552 (6th

Cir. 2014), vacated Ohio St. Conf. of NAACP v.

Husted, No. 14-3877, 2014 WL 10384647 (6th Cir. Oct.

1, 2014) (“Section 2 applies to any ‘standard, practice,

or procedure’ that makes it harder for an eligible voter

to cast a ballot”). Section 2’s reach was recognized by

Justice Scalia, who provided a paradigmatic illustration of a seemingly race-neutral procedure that violates Section 2: “If, for example, a county permitted

voter registration for only three hours one day a week,

and that made it more difficult for [B]lacks to register

than [W]hites, [B]lacks would have less opportunity

‘to participate in the political process' than [W]hites,

and § 2 would therefore be violated.” Chisom v. Roemer, 501 U.S. 380, 403 (1991) (Scalia, J., dissenting).

B. The Section 2 standard, which focuses on

local conditions and history, is workable

and effective.

The genesis of the language of the amended Section 2 is this Court’s decision in White v. Regester, 412

U.S. 755, 766 (1973), which evaluated the “totality of

the circumstances” using objective factors that reflected “a blend of history and an intensely local appraisal of the design and impact of the * * * multimember district in the light of past and present reality, political and otherwise.” Id. at 770. Following

19

White, the Fifth Circuit’s influential decision in Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973) (en

banc), aff'd on other grounds sub nom. E. Carroll Parish Sch. Bd. v. Marshall, 424 U.S. 636 (1976), found

that an “aggregate of these factors”—but not all of

them—needed to be proved to obtain relief. Id. at

1305. In the years following White and Zimmer, courts

across the country applied their test in adjudicating

Section 2 claims. See, e.g., Robinson v. Comm’rs Ct.,

505 F.2d 674 (5th Cir. 1974) (Texas); Bradas v.

Rapides Parish Police Jury, 508 P.2d 1109 (5th Cir.

1975) (Louisiana); Aranda v. Van Sickle, 600 F.2d

1267 (9th Cir. 1979) (California); Black Voters v.

McDonough, 421 F. Supp. 165 (D. Mass. 1976), aff'd,

565 F.2d 1 (1st Cir. 1977) (Massachusetts).

This standard, which emphasized the local social

and historical conditions in which the voting practice

was being imposed, proved workable and durable.

Thus, the Senate Report identified nearly two

dozen lower court cases decided between 1973 and

1978 applying the White/Zimmer test—which Congress intended to incorporate into Section 2 as the “actual judicial understanding and application of the

White standard.” S. Rep. at 67. As the Senate Report

explained, Congress intended “to incorporate that

[White] precedent and extensive case law which developed around it, into the application of Section 2.” Id.

at 32. Congress did so, in part, to refute criticisms that

its test would be unworkable, pointing to the “extensive, reliable and reassuring track record of court decisions using the [White] standard” as incontrovertible

proof to the contrary. Ibid.

This history, and the decisions invoked by Congress in 1982, refute the ARP’s assertion that a test

resting on the Senate Factors either is too indefinite

20

or effectively invalidates all voting practices that have

a disparate impact on minority voters. ARP Br. at 20

(“On [Respondents’] construction, any voting rule implicates § 2 if it can be tied to racially disproportionate

outcomes.”). Of the 23 decisions analyzed in the Senate Report, the defendant prevailed in more than half.

S. Rep. at 33. Some plaintiffs who had proven one or

two or even three of the Zimmer factors (now Senate

Factors) fell short of the showing required to render

an electoral scheme void. Ibid. This remains true today, even in vote denial cases. See, e.g., Lee v. Va. St.

Bd. of Elections, 188 F. Supp. 3d 577, 603 (E.D. Va.),

aff'd, 843 F.3d 592 (4th Cir. 2016); Burton v. City of

Belle Glade, 178 F.3d 1175, 1198 (11th Cir. 1999); Ala.

St. Conf. of NAACP v. Alabama, No. 2:16-CV-731WKW, 2020 WL. 583803 (M.D. Ala. Feb. 5, 2020); N.C.

St. Conf. of NAACP v. Cooper, 430 F. Supp. 3d 15, 23

(M.D.N.C. 2019), rev'd sub nom. N.C. St. Conf. of the

NAACP v. Raymond, 981 F.3d 295 (4th Cir. 2020).

Moreover, and critically, the Senate Factors give

emphasis to local issues and history. See Veasey, 830

F.3d at 257-58 (evaluating as evidence both Texas’s

history of discrimination and the district court's finding that “[i]n every redistricting cycle since 1970,

Texas has been found to have violated the VRA with

racially gerrymandered districts.”); see also Husted,

768 F.3d at 556. By focusing on localized socioeconomic and historical conditions, the Senate Factors offer a workable test for assessing the interaction between the electoral device and local social and historical conditions.

The proof is in the pudding: courts recognize that

a test looking to the Senate Factors is administrable

and effective, offering “a sufficient and familiar way

to limit courts’ interference with ‘neutral’ election

21

laws to those that truly have a discriminatory impact

under Section 2 of the Voting Rights Act.” Veasey, 830

F.3d at 246–247. See, e.g., League of Women Voters of

N.C., 769 F.3d at 224; Feldman v. Ariz. Sec'y of State's

Off., 843 F.3d 366, 379 (9th Cir. 2016); Burton, 178

F.3d at 1198.

In fact, ARP’s assertion that the test results in

courts rubber-stamping plaintiffs’ claims in a manner

that destabilizes the electoral systems simply rehashes the arguments made by critics of the White

standard’s codification in Section 2 nearly 40 years

ago. The assertion is no more true now than it was in

1982, when Congress rejected it. Now, as in 1982, the

real argument against use of the White/Zimmer test

is that “racial politics no longer affect minority voters.” S. Rep. at 23. The “regrettable reality” (ibid.),

then and today, is that petitioners’ are wrong. Id. at

33.

III. Amici’s experience in North Carolina in recent years vividly demonstrates the need for

a vigorous Section 2.

Amici’s review of history is not academic. Amici,

particularly the North Carolina APRI, have dealt with

electoral practices that interacted with socioeconomic

disparities resulting from hundreds of years of racial

discrimination; have assisted Black voters in participating in the political process; and have sued when

the barriers of complex electoral schemes cannot be

overcome by the assistance of small non-profit organizations. Amici’s lived experience can help the Court

understand why Section 2 remains critically important to racial equity in this country’s democracy.

In the aftermath of Shelby County, the North Carolina General Assembly passed an omnibus elections

22

bill (H.B. 589)—parts of which would later be deemed

intentionally discriminatory because they targeted

Black voters with “surgical precision.” McCrory, 831

F.3d at 214. Although the Fourth Circuit invalidated

the statute based on intentional discrimination, its

factual conclusions (and those of the district court,

which the Fourth Circuit essentially adopted, id. at

214), offer a local appraisal that illustrate how facts

on the ground should lead this Court to reject petitioners’ invitation to narrow Section 2.

From 2005 to 2013, North Carolina allowed OOP

voting—that is, voters could cast a provisional ballot

if they attempted to vote in the incorrect precinct, and

their votes would be counted for every contest in

which the voter was eligible to vote. In 2005, after the

North Carolina Supreme Court held that voters “must

cast ballots on election day in their precincts of residence” (James v. Bartlett, 607 S.E.2d 638, 642-44

(N.C. 2005)), the state legislature passed clarifying

legislation establishing that voters could vote in another precinct, in their county of registration, on Election Day. N.C. Gen. Stat. § 163-55. That 2005 statute

explicitly mentioned the disparate reliance on OOP

voting by Black voters. McCrory, 831 F.3d at 217. In

the immediate aftermath of Shelby County in 2013,

however, the state legislature sought to eliminate

OOP voting in HB 589. Amicus North Carolina APRI

filed a lawsuit immediately. The Fourth Circuit found

the repeal of OOP voting invalid. Id. at 238.

A. OOP voting is necessary to safeguard minority voters in North Carolina.

OOP voting is critical in North Carolina because

it corrects the unequal opportunity that Black voters—who bear socioeconomic scars from hundreds of

23

years of official discrimination—face in trying to participate in the political process. As the district court

found in McCrory, Black voters disproportionately utilize OOP voting in comparison to White voters. 182 F.

Supp. 3d 320, 405 (M.D.N.C. 2016).

Indeed, in North Carolina, the disparate use of

OOP voting by Black voters (and the disproportionate

disenfranchisement of those voters after its repeal)

was so clear that the Fourth Circuit reversed the district court’s legal conclusions based on the district

court’s factual findings. See McCrory, 831 F.3d at 238

(citing McCrory, 182 F. Supp. 3d at 489 (finding that

the legislature requested a racial breakdown of provisional voting, including OOP voting, in deciding to

eliminate OOP voting)).

The history of discrimination in North Carolina

has resulted in many lasting socioeconomic disparities, including a lack of transportation, health disparities, and lower-paying and more restrictive work obligations, all of which prevent Black voters from voting in their precinct of registration. The Senate Factor

analysis in McCrory highlighted three specific considerations that interacted with the lack of OOP voting

to create unequal opportunity to participate in the political process: (1) poverty; (2) high residential mobility; and (3) the lack of transportation.

1.

Poverty in North Carolina

Poverty is extremely high in North Carolina, and

OOP voting helps prevent poverty from impeding

Black voter participation. The record in McCrory

demonstrated that Blacks, Native Americans, and

Hispanics are disproportionately more likely to be

poor than Whites. 182 F. Supp. 3d at 430; see also id.

at 432 n.145. Moreover, the poor in North Carolina

24

have relatively high disability rates, and the poor who

are non-Whites are more likely to be disabled. Id. at

431. The adverse effect on voting from non-White disability rates is exacerbated by the fact that 27 percent

of Black people living in poverty do not have a vehicle

available to them. Ibid.

Further, poverty, lack of transportation, and other

socioeconomic disparities are obvious vestiges of de

jure and de facto discrimination against Black voters.

In North Carolina, these Senate Factors indisputably

caused OOP voting to be critical in leveling the playing field for Black voters.

2.

High residential mobility

The high residential mobility of Black voters is another, related impediment to participation in the political process. In McCrory, the district court found

that from “2006 through 2012, unreported movers accounted for 25.4% of provisional ballots, while OOP

voters accounted for 14.7% of provisional ballots.” 182

F. Supp. 3d at 462 (internal footnote omitted). In 2012,

people who were considered poor were almost twice as

likely to have moved over the last year in North Carolina than the non-poor. Id. at 431. Further, non-Hispanic Whites resided in new residences at a lower percentage than non-Hispanic Blacks and Hispanics, at

13.6% and 18.5% respectively. Ibid. Members of minority groups who moved within the year were “significantly more likely” to be poor. Ibid.

Poverty leads to housing instability. Poor voters

who must move often just to maintain a roof over their

heads will frequently need to update their registrations and will have a more difficult time ascertaining

their correct precinct.

25

3.

Lack of transportation

Also, associated with poverty and high residential

mobility is the fact that many Black North Carolinians do not have access to transportation. This impediment inherently limited Black voters’ ability to commute to work, let alone travel to a polling site. As of

2014, 10.7% of North Carolina Blacks did not have access to a vehicle, whereas only 2.4% of Whites were so

limited. Id. at 430.

This cannot be regarded as a matter of choice or

“voter preference.” The Fourth Circuit effectively debunked any such argument in McCrory:

These socioeconomic disparities [such as having to move from year to year or lack of transportation] establish that no mere ‘preference’

led African Americans to disproportionately

use early voting, same-day registration, out-ofprecinct voting, and preregistration. * * * Registration and voting tools may be a simple

‘preference’ for many [W]hite North Carolinians, but for many African Americans, they are

a necessity.

McCrory, 831 F.3d at 233 (emphasis added). As of

2013, almost 12 percent of North Carolina’s White

(non-Hispanic) adults lived below the poverty line,

while the poverty rate for Black North Carolinians

was more than twice as high, at 27 percent. McCrory,

182 F. Supp. 3d at 430. OOP may sometimes be a preference for White voters, but the disproportionate

number of Black voters living in poverty makes it a

necessity.

26

B. Elimination of OOP voting caused disenfranchisement of minority voters in

North Carolina.

In 2013, in enacting H.B. 589, the North Carolina

legislature eliminated several important components

of the State’s robust voter engagement plan that had

been set in motion over the prior approximately 15

years. The legislature had extensive data demonstrating that Black voters more often relied on OOP voting

(and were more often disenfranchised when it was

prohibited). McCrory, 831 F.3d at 217. It proceeded

nonetheless to eliminate this important mechanism

that evened the field of political participation, and

many voters were predictably disenfranchised. These

voters’ stories make plain the way that the legacy of

North Carolina’s ugly racial discrimination, including

severe socioeconomic disparities between Black and

White voters, interacted with the repeal of OOP to result in disenfranchisement and unequal access to the

political process.

1.

Timothy and Yvonne Washington

In the case of Mr. Timothy and Mrs. Yvonne

Washington, the combination of lack of transportation

and physical disabilities led to them casting OOP ballots.

The Washingtons reside in Wayne County, North

Carolina, and rely on public assistance which, in part,

prevents them from being able to own a car or to have

sufficient money for public transportation. Consequently, they either walk to places they need to go or

rely on others’ benevolence to transport them. Pretrial Disclosures at 12, League of Women Voters of

N.C. v. North Carolina, 1:13-CV-660, (M.D.N.C. June

30, 2015), ECF 304-75 (“LWV”); see also LWV, ECF

27

304-76 at 14-15. Further, in addition to not having

easy access to transportation, the Washingtons have

physical disabilities that severely limit how far they

can walk without excessive fatigue. Id. at 20.

In November 2014, the Washingtons voted on

Election Day. They walked to vote at the closest polling site to their home, the Goldsboro Public Library,

only to be told that they were at the wrong precinct

and needed to vote at a precinct that was over twice

the distance from their home. LWV, ECF 304-75 at 1213, 44. Because of their inability to walk the extra distance to get to their correct precinct, they had to vote

with a provisional ballot. Ultimately, their provisional

votes did not count. Id. at 10-11.

The Washingtons’ experience makes them living

embodiments of the socioeconomic and health disparities suffered by Black voters as a result of the history

of discrimination against them. Mrs. Washington explained that even after being informed of her correct

precinct, she would not be able to vote there without

accessible public transportation (which is notably

lacking in Wayne County, North Carolina) or the ability to secure a safe ride from a friend or voter assistance group. LWV, ECF 304-76 at 26.

2.

Michael Owens

Like the Washingtons, during the November 2014

election, Mr. Michael Owens, a resident of Robeson

County, North Carolina, found his political participation adversely affected by a lack of transportation. He

did not have access to a car because his vehicle had

been repossessed after he faced financial challenges

from job instability. He, too, was unable to vote at the

precinct in which he was registered on Election Day.

McCrory, 182 F. Supp. 3d at 481-83.

28

In the fall of 2014, Mr. Owens worked in Lumberton, North Carolina, during the week and returned

home, to Shannon (which is on the other side of Robeson County) on the weekends. Id. at 482. On Election

Day, Mr. Owens was far from his assigned precinct,

but thought that, because he was registered in the

county, he could vote anywhere in Robeson County—

specifically, near his place of employment in Lumberton. Id. at 407. Mr. Owens had only one hour for lunch,

the period in which he voted, and had to find transportation to the polling place. Id. at 482.

Mr. Owens could not have made it to Shannon and

back to work in Lumberton on election day. Id. at 483.

If he was late returning, he risked disciplinary action

from his employer. Mr. Owens therefore decided to try

to vote at a precinct close to where he worked. Ibid.

He went to two different polling places in Lumberton,

neither of which was the precinct in which he was registered, and ultimately he was not able to vote because

he was not offered a provisional ballot. Id. at 482. Mr.

Owen’s lack of transportation and confusion about the

voting process ultimately led to his disenfranchisement—which would not have been the case were OOP

voting allowed.

3.

Gwendolyn Farrington

Ms. Gwendolyn Farrington was also disenfranchised during the pendency of McCrory, when her November 2014 provisional ballot was disregarded. Like

Mr. Owens, Ms. Farrington was not aware of the state

legislature’s 2013 changes that precluded her from

casting an OOP ballot, especially as she had previously voted in the incorrect precinct (right county,

wrong polling place) but her vote was counted, at least

in part. LWV 304-29 at 11-12.

29

Ms. Farrington went to vote at a polling place

closer to her workplace than to her assigned polling

place because her work obligations precluded her from

voting prior to 6 PM. She testified that she could not

have picked up her children and made it to her assigned precinct in time. Ms. Farrington cast a provisional ballot that she was told, for the first time in November 2014, would not count. LWV 304-29 at 10. Ms.

Farrington did not have the luxury of a job that allowed her more flexibility in voting, nor access to alternative transportation for her children.

4.

Terrilin Cunningham

Ms. Terrilin Cunningham originally moved to

North Carolina (Charlotte, in Mecklenburg County) in

2012 and successfully voted on a Sunday in the early

voting period that year. LWV 304-17 at 25-26. Because she did not have a vehicle, her son-in-law had

taken her to vote at a church near her home in 2012.

Id. at 26. She was not aware that the state legislature

eliminated OOP voting in 2013. Because Ms. Cunningham was unaware of these changes, she not only

planned to vote at another precinct (one closer to her

job), but also used social media to encourage others to

vote anywhere in the county. LWV 304-17 at 7-8.

Ms. Cunningham expressed pride in voting and

posted a picture of herself on her Facebook page after

she voted, along with a narrative about the importance of voting, because she wanted to encourage

others to follow suit. See id. at 6-8. She further explained that because she had voted at a location that

was designated as a polling site (even though not her

precinct of registration) in 2012, she understood that

North Carolina law allowed her to vote at any precinct

in her county of registration. Id. at 27-29. As she at-

30

tempted to vote in 2014, however, she was disenfranchised because the State eliminated the option for her

to use OOP voting on Election Day.

****

As each of these stories demonstrates, Section 2 is

necessary to provide protection when an election

scheme interacts with such socioeconomic conditions

as poverty, disabilities, and lack of transportation—

remnants of historical discrimination—to prevent

Black voters from fully participating in the political

process. Unfortunately, the policies and procedures

that make Section 2 necessary are not ancient history

in the South.

CONCLUSION

The decision of the court of appeals should be affirmed.

Respectfully submitted,

ALLISON J. RIGGS

CHARLES A. ROTHFELD

MITCHELL D. BROWN

Counsel of Record

JONATHAN C. AUGUSTINE LOGAN S. PAYNE

KATELIN S. KAISER

Mayer Brown LLP

Southern Coalition for

1999 K Street, NW

Social Justice

Washington, DC 20006

1415 West Highway 54,

(202) 263-3000

Suite 101

crothfeld@mayDurham, NC 27707

erbrown.com

(919) 323-3380

ALLISON@SOUTHERNCOALITION.ORG

31

LEE H. RUBIN

Mayer Brown LLP

Two Palo Alto Square,

Suite 300

3000 El Camino Real

Palo Alto, CA 94306

(650) 331-2000

WHITNEY A. SUFLAS

Mayer Brown LLP

1221 Avenue of the

Americas

New York, NY 10020

(212) 506-2500

Counsel for Amicus Curiae

JANUARY 2021