The League of Women Voters, the U.S. Justice Department and others squared off one last time with the state of North Carolina Thursday over whether to put the state's sweeping election overhaul on hold this November. In uptown Charlotte, a panel of three federal appeals court judges peppered both sides with a variety of questions.
In her opening argument, attorney Allison Riggs for the League of Women Voters said if the appeals court does not put the changes on hold, "North Carolinians who should be able to vote in the November elections will be prevented from doing so."
The changes in question cut the early voting period by a week, eliminate same-day registration, and no longer count ballots cast in the wrong precinct. The League of Women Voters, the NAACP and the U.S. Justice Department say those changes are discriminatory and should be put on hold until a full trial next summer.
Federal appeals court Judge Diana Gribbon Motz pointed out the plaintiffs have already lost this argument once.
"Well, didn't the district court say you haven't made a clear showing of irreparable harm?" she asked.
District court Judge Thomas Schroeder ruled last month the plaintiffs demonstrated neither irreparable harm nor a likelihood of success on their claims in the full trial next summer.
Schroeder accepted that some of the changes would disproportionately impact African-Americans. But he said the plaintiffs failed to show that would result in an inequality of opportunity.
Attorney Penda Hair for the NAACP said Judge Schroeder is wrong.
"African-Americans with the repeal of these provisions are going to be treated unequally as compared to whites," she said.
Before North Carolina enacted those provisions, the plaintiffs point out African-American registration and turnout lagged far behind whites. Then in the 2000s, North Carolina started counting out-of-precinct ballots, allowing early voting and same-day registration.
"Under that system, minority registration and turnout both went up," said Holly Thomas of the U.S. Justice Department. "In fact, the rates exceeded the rates for white voters in the 2012 election, so we know that if we go back to the system that existed prior to those changes in the 2000s, minorities will again be less equal."
Here's how Judge Motz responded:
"It seems to me you do a pretty good job on that," she said. "But I'm left with thinking, OK, the state did something good for minorities, and now it's being penalized."
Every time the state makes a change that helps minorities, Motz asked, it can't undo it?
Thomas replied the Justice Department considers how much African-Americans would be burdened by changes case-by-case.
"That's another error the district court made here is that assuming that finding a violation in North Carolina would mean that every other state could be liable," Thomas said. "That's just not so. The analysis is intensely local."
Lawyers defending North Carolina argued the district court judge was right to worry about setting a precedent. Attorney Thomas Farr also pointed out the state has already had one election with the new rules: the May primary.
"The turnout was higher by minorities in the primary in 2014 than it was in 2010," he said. "If this law was going to have all these horrible effects and voter suppression, one would've thought that there would've been at least some evidence of suppression of the vote in the primary."
The state's lawyers also argued that making changes this close to November would cause every voter to suffer irreparable harm by depriving them of orderly elections.
"Voter confusion, that is what the Supreme Court has said is a very real risk of changing the rules this close to an election," said Alexander Peters.
The judges pushed him on that.
"Does an administrative burden trump a constitutional right?" Judge Henry Floyd asked.
"Your honor, the administrative burden and the right of the people to an orderly election does trump the claims that the plaintiffs have when they have not shown a likelihood of any harm," Peters responded.
Another judge, James Wynn, acknowledged there'd be a burden on the state to start counting out-of-precinct ballots again.
But Wynn said he lives in North Carolina and knows the nearest precinct to your house isn't always the one you're assigned to.
"It looks like to me that would lessen confusion for voters if I could walk into that precinct and vote as opposed to having to go a mile down the road to the one I'm supposed to," he said.
Judge Wynn said counting those ballots would result in a lot of people voting who otherwise would've had their ballots tossed out.
Thomas Farr responded, "That's an assumption for which there's no evidence - you are looking at a statistical correlation."
Wynn replied: "An assumption that someone walks into the wrong precinct and votes, that his vote won't count? That's not an assumption. You told me that's a reality."
Farr asked, "Why did they go to that wrong precinct?"
Wynn answered: "It could've been Grandma's right there next door; she walked over to the precinct. I don't want to give the answers to this, and you're right, there's no evidence Grandma is going to do that. But we do have to use a little common sense here. We know this happens."
But Farr always returned to the idea that the Justice Department and other plaintiffs have not proved an inequality of opportunity.
"How can there be unequal opportunity when all voters have the right to register 25 days before the election?" he asked. "All have the right to vote during the 10-day voting period. All have the right to do 60-day absentee write-in ballot."
Farr said the law as it's written is race-neutral. If the federal appeals court decides the effect is discriminatory, North Carolina's lawyers say they may appeal to the U.S. Supreme Court.