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League of Women Voters of North Carolina v. State of North Carolina

United States Court of Appeals, Fourth Circuit

October 1, 2014

LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA; A. PHILIP RANDOLPH INSTITUTE; UNIFOUR ONESTOP COLLABORATIVE; COMMON CAUSE NORTH CAROLINA; GOLDIE WELLS; KAY BRANDON; OCTAVIA RAINEY; SARA STOHLER; HUGH STOHLER, Plaintiffs, and LOUIS M. DUKE; CHARLES M. GRAY; ASGOD BARRANTES; JOSUE E. BERDUO; BRIAN M. MILLER; NANCY J. LUND; BECKY HURLEY MOCK; MARY-WREN RITCHIE; LYNNE M. WALTER; EBONY N. WEST, Intervenors/Plaintiffs -- Appellants,
v.
STATE OF NORTH CAROLINA; JOSHUA B. HOWARD, in his official capacity as a member of the State Board of Elections; RHONDA K. AMOROSO, in her official capacity as a member of the State Board of Elections; JOSHUA D. MALCOLM, in his official capacity as a member of the State Board of Elections; PAUL J. FOLEY, in his official capacity as a member of the State Board of Elections; MAJA KRICKER, in her official capacity as a member of the State Board of Elections; PATRICK L. MCCRORY, in his official capacity as Governor of the state of North Carolina, Defendants -- Appellees. UNITED STATES OF AMERICA, Amicus Curiae, BRENNAN CENTER FOR JUSTICE AT NYU SCHOOL OF LAW, Amicus Supporting Appellants, JUDICIAL WATCH, INCORPORATED; ALLIED EDUCATIONAL FOUNDATION; CHRISTINA KELLEY GALLEGOS-MERRILL, Amici Supporting Appellees. NORTH CAROLINA STATE CONFERENCE OF BRANCHES OF THE NAACP; ROSANELL EATON; EMMANUEL BAPTIST CHURCH; BETHEL A. BAPTIST CHURCH; COVENANT PRESBYTERIAN CHURCH; CLINTON TABERNACLE AME ZION CHURCH; BARBEE'S CHAPEL MISSIONARY BAPTIST CHURCH, INC.; ARMENTA EATON; CAROLYN COLEMAN; JOCELYN FERGUSON-KELLY; FAITH JACKSON; MARY PERRY; MARIA TERESA UNGER PALMER, Plaintiffs -- Appellants, and NEW OXLEY HILL BAPTIST CHURCH; BAHEEYAH MADANY; JOHN DOE 1; JANE DOE 1; JOHN DOE 2; JANE DOE 2; JOHN DOE 3; JANE DOE 3, Plaintiffs,
v.
PATRICK L. MCCRORY, in his official capacity as Governor of the state of North Carolina; JOSHUA B. HOWARD, in his official capacity as a member of the State Board of Elections; RHONDA K. AMOROSO, in her official capacity as a member of the State Board of Elections; JOSHUA D. MALCOLM, in his official capacity as a member of the State Board of Elections; PAUL J. FOLEY, in his official capacity as a member of the State Board of Elections; MAJA KRICKER, in her official capacity as a member of the State Board of Elections, Defendants -- Appellees. UNITED STATES OF AMERICA, Amicus Curiae, BRENNAN CENTER FOR JUSTICE AT NYU SCHOOL OF LAW, Amicus Supporting Appellants, JUDICIAL WATCH, INCORPORATED; ALLIED EDUCATIONAL FOUNDATION; CHRISTINA KELLEY GALLEGOS-MERRILL, Amici Supporting Appellees. LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA; A. PHILIP RANDOLPH INSTITUTE; UNIFOUR ONESTOP COLLABORATIVE; COMMON CAUSE NORTH CAROLINA; GOLDIE WELLS; OCTAVIA RAINEY; HUGH STOHLER; KAY BRANDON; SARA STOHLER, Plaintiffs -- Appellants, and LOUIS M. DUKE; CHARLES M. GRAY; ASGOD BARRANTES; JOSUE E. BERDUO; BRIAN M. MILLER; NANCY J. LUND; BECKY HURLEY MOCK; MARY-WREN RITCHIE; LYNNE M. WALTER; EBONY N. WEST, Intervenors/Plaintiffs,
v.
STATE OF NORTH CAROLINA; JOSHUA B. HOWARD, in his official capacity as a member of the State Board of Elections; RHONDA K. AMOROSO, in her official capacity as a member of the State Board of Elections; JOSHUA D. MALCOLM, in his official capacity as a member of the State Board of Elections; PAUL J. FOLEY, in his official capacity as a member of the State Board of Elections; MAJA KRICKER, in her official capacity as a member of the State Board of Elections; PATRICK L. MCCRORY, in his official capacity as Governor of the state of North Carolina, Defendants -- Appellees. UNITED STATES OF AMERICA, Amicus Curiae, BRENNAN CENTER FOR JUSTICE AT NYU SCHOOL OF LAW, Amicus Supporting Appellants, JUDICIAL WATCH, INCORPORATED; ALLIED EDUCATIONAL FOUNDATION; CHRISTINA KELLEY GALLEGOS-MERRILL, Amici Supporting Appellees

Argued September 25, 2014

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Appeals from the United States District Court for the Middle District of North Carolina, at Greensboro. (1:13-cv-00658-TDS-JEP; 1:13-cv-00861-TDS-JEP; 1:13-cv-00660-TDS-JEP). Thomas D. Schroeder, District Judge.

ARGUED:

Allison Jean Riggs, SOUTHERN COALITION FOR SOCIAL JUSTICE, Durham, North Carolina; Penda Denise Hair, ADVANCEMENT PROJECT, Washington, D.C.; Marc Erik Elias, PERKINS COIE LLP, Washington, D.C., for Appellants.

Alexander McClure Peters, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina; Thomas A. Farr, OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C., Raleigh, North Carolina, for Appellees.

Holly Aiyisha Thomas, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Amicus United States of America.

ON BRIEF:

Anita S. Earls, George E. Eppsteiner, SOUTHERN COALITION FOR SOCIAL JUSTICE, Durham, North Carolina; Dale Ho, Julie A. Ebenstein, Sean Young, New York, New York, Laughlin McDonald, ACLU VOTING RIGHTS PROJECT, Atlanta, Georgia; Christopher Brook, ACLU OF NORTH CAROLINA LEGAL FOUNDATION, Raleigh, North Carolina, for Appellant League of Women Voters of North Carolina.

Elisabeth C. Frost, Washington, D.C., Joshua L. Kaul, PERKINS COIE LLP, Madison, Wisconsin; Edwin M. Speas, Jr., John W. O'Hale, Caroline P. Mackie, POYNER SPRUILL LLP, Raleigh, North Carolina, for Appellant Louis M. Duke.

Edward A. Hailes, Jr., Denise D. Lieberman, Donita Judge, Caitlin Swain, ADVANCEMENT PROJECT, Washington, D.C.; Irving Joyner, Cary, North Carolina; Adam Stein, TIN FULTON WALKER & OWEN, PLLC, Chapel Hill, North Carolina; Daniel T. Donovan, Susan M. Davies, Bridget K. O'Connor, K. Winn Allen, Kim Knudson, Jodi Wu, KIRKLAND & ELLIS LLP, Washington, D.C., for Appellant North Carolina State Conference of Branches of the NAACP.

Robert C. Stephens, OFFICE OF THE GOVERNOR OF NORTH CAROLINA, Raleigh, North Carolina; Karl S. Bowers, Jr., BOWERS LAW OFFICE LLC, Columbia, South Carolina, for Appellee Governor Patrick L. McCrory.

Katherine A. Murphy, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina; Phillip J. Strach, Michael D. McKnight, OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C., Raleigh, North Carolina, for Appellees State of North Carolina and North Carolina State Board of Election.

Molly J. Moran, Acting Assistant Attorney General, Diana K. Flynn, Civil Rights Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Ripley Rand, United States Attorney, Greensboro, North Carolina, Gill P. Beck, Special Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Amicus United States of America.

Samuel Brooke, SOUTHERN POVERTY LAW CENTER, Montgomery, Alabama; Michael C. Li, Jennifer L. Clark, Tomas Lopez, THE BRENNAN CENTER FOR JUSTICE AT N.Y.U. SCHOOL OF LAW, New York, New York, for Amicus The Brennan Center for Justice at N.Y.U School of Law.

Chris Fedeli, JUDICIAL WATCH, INC., Washington, D.C.; H. Christopher Coates, LAW OFFICE OF H. CHRISTOPHER COATES, Charleston, South Carolina; Bradley J. Schlozman, HINKLE LAW FIRM LLC, Wichita, Kansas; Gene B. Johnson, JOHNSON LAW FIRM, P.A., Arden, North Carolina, for Amici Judicial Watch, Incorporated, Allied Educational Foundation, and Christina Kelley Gallegos-Merrill.

Before MOTZ, WYNN, and FLOYD, Circuit Judges. Judge Wynn wrote the majority opinion, in which Judge Floyd joined. Judge Motz wrote a dissenting opinion.

OPINION

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WYNN, Circuit Judge:

The right to vote is fundamental. " No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined." Wesberry v. Sanders, 376 U.S. 1, 17, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964). And a tight timeframe before an election does not diminish that right.

" In decision after decision, [the Supreme] Court has made clear that a citizen has a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction." Dunn v. Blumstein, 405 U.S. 330, 336, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972). Congress sought to further ensure equal access to the ballot box by passing the Voting Rights Act, which was aimed at preventing " an inequality in the opportunities enjoyed by black and white voters to elect their preferred representatives." Thornburg v. Gingles, 478 U.S. 30, 47, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986).

On June 25, 2013, the Supreme Court lifted certain Voting Rights Act restrictions that had long prevented jurisdictions like North Carolina from passing laws that would deny minorities equal access. See Shelby Cnty., Ala. v. Holder, 133 S.Ct. 2612, 186 L.Ed.2d 651 (2013). The very next day, North Carolina began pursuing sweeping voting reform--House Bill 589--which is at the heart of this appeal.

With House Bill 589, North Carolina imposed strict voter identification requirements, cut a week off of early voting, prohibited local election boards from keeping the polls open on the final Saturday afternoon before elections, eliminated same-day voter registration, opened up precincts to " challengers," eliminated pre-registration of sixteen- and seventeen-year-olds in high schools, and barred votes cast in the wrong precinct from being counted at all.

In response, various Plaintiffs and the United States Government sued North Carolina, alleging that House Bill 589 violates equal protection provisions of the United States Constitution as well as the Voting Rights Act. Plaintiffs sought to prevent

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House Bill 589 from taking effect by asking the district court for a preliminary injunction. Such an injunction would maintain the status quo to prevent irreparable harm while the lawsuit plays itself out in the courts.

But the district court refused. In so doing, the district court laid out what it believed to be the applicable law. Notably, however, the district court got the law plainly wrong in several crucial respects. When the applicable law is properly understood and applied to the facts as the district court portrayed them, it becomes clear that the district court abused its discretion in denying Plaintiffs a preliminary injunction and not preventing certain provisions of House Bill 589 from taking effect while the parties fight over the bill's legality. Accordingly, we reverse the district court's denial of the preliminary injunction as to House Bill 589's elimination of same-day registration and prohibition on counting out-of-precinct ballots.

However, we affirm the district court's denial of Plaintiffs' request for a preliminary injunction with respect to the following House Bill 589 provisions: (i) the reduction of early-voting days; (ii) the expansion of allowable voter challengers; (iii) the elimination of the discretion of county boards of elections to keep the polls open an additional hour on Election Day in " extraordinary circumstances" ; (iv) the elimination of pre-registration of sixteen- and seventeen-year-olds who will not be eighteen years old by the next general election; and (v) the soft roll-out of voter identification requirements to go into effect in 2016. With respect to these provisions, we conclude that, although Plaintiffs may ultimately succeed at trial, they have not met their burden of satisfying all elements necessary for a preliminary injunction. We therefore affirm in part, reverse in part, and remand to the district court with specific instructions to enter, as soon as possible, an order granting a preliminary injunction enjoining enforcement of certain provisions of House Bill 589.[1]

I. Background[2]

In spring 2013, the North Carolina General Assembly began working on a voter identification law. The House Committee on Elections, chaired by Representative David R. Lewis, held public hearings, and an initial version of House Bill 589 was introduced in the House on April 4. In April, House Bill 589 was debated, amended, and advanced; it ultimately passed the House essentially along party lines, with no support from any African American representatives.

In March 2013, before the bill was introduced to the house, the various sponsors of House Bill 589 sent an e-mail to the State Board of Elections asking for a " cross matching of the registered voters in [North Carolina] with the [DMV] to determine

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a list of voters who have neither a [North Carolina] Driver's License nor a [North Carolina] Identification Card." Id. at 357. The legislators also wanted " that subset broken down into different categories within each county by all possible demographics that [the State Board of Elections] typically captures (party affiliation, ethnicity, age, gender, etc.)." McCrory, 997 F.Supp.2d at 357. The State Board of Elections sent the data in a large spreadsheet the next day.

Later in March 2013, Representative Lewis sent a ten-page letter to State Board of Elections Director Gary Bartlett asking about the State Board of Elections' conclusion that 612,955 registered voters lacked a qualifying photo identification. He asked the State Board of Elections to " provide the age and racial breakdown for voters who do not have a driver's license number listed." Id. In April, Bartlett sent a nineteen-page response along with a spreadsheet that included the requested race data. That same day, Speaker of the House Thom Tillis's general counsel e-mailed the State Board of Elections, asking for additional race data on people who requested absentee ballots in 2012; that data, too, the State Board of Elections provided.

In late April 2013, House Bill 589 made its way to the North Carolina Senate, passed first reading, and was assigned to the Senate Rules Committee. That committee took no action on the bill for three months, until July 23. " The parties do not dispute that the Senate believed at this stage that [House Bill] 589 would have to be submitted to the United States Department of Justice . . . for 'pre-clearance' under Section 5 of the [Voting Rights Act], 42 U.S.C. § 1973c(a), because many North Carolina counties were 'covered jurisdictions' under that Section. However, at that time the United States Supreme Court was considering a challenge to the . . . ability to enforce Section 5." McCrory, 997 F.Supp.2d at 336.[3]

On June 25, the Supreme Court issued its decision in Shelby County, declaring the formula used to determine the Section 5 covered jurisdictions unconstitutional. The very next day, Senator Thomas Apodaca, Chairman of the North Carolina Senate Rules Committee, publicly stated, " So, now we can go with the full bill." Id. at 336. The contents of the " full bill" were not disclosed at the time.

A meeting of the Rules Committee was subsequently scheduled for July 23. The night before the Rules Committee meeting, the new bill, by then fifty-seven pages in length, was posted for the members on the Rules Committee website. Unlike the original bill, which focused mainly on voter identification, the amended House Bill 589 expanded the list of restrictive provisions to include (1) the reduction of early-voting days; (2) the elimination of same-day registration; (3) a prohibition on counting out-of-precinct ballots; (4) an expansion of allowable poll observers and voter challenges; (5) the elimination of the discretion of county boards of elections to keep the polls open an additional hour on Election Day in extraordinary circumstances; and (6) the elimination of pre-registration of sixteen- and seventeen-year-olds who will not be eighteen years old by the next general election.

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After debate on July 23, the amended bill passed the committee and proceeded to the floor. On July 25, the Senate began its session with the third reading of the substantially amended House Bill 589. Proponents and opponents of the bill debated its provisions and various proposed amendments for four hours. " Several Senators characterized the bill as voter suppression of minorities." McCrory, 997 F.Supp.2d at 337. Nevertheless, at the close of debate, a party-line vote sent House Bill 589, as amended, back to the House for concurrence.

That same day, after the bill had been modified and passed by the Senate, a State Board of Elections employee e-mailed data to Representative Lewis, one of the bill's House sponsors. The data contained verification rates for same-day registration in the 2010 and 2012 elections and information about the type of identifications presented by same-day registrants.

On the evening of July 25, the House received the Senate's version of House Bill 589. During debate, opponents characterized the measure " variously as voter suppression, partisan, and disproportionately affecting" African Americans, young voters, and the elderly. McCrory, 997 F.Supp.2d at 337. At 10:39 p.m. that night, the House voted--again along party lines--to concur in the Senate's version of House Bill 589.

The bill was ratified the next day, July 26, and presented to Governor Patrick McCrory on July 29. The Governor signed House Bill 589 into law on August 12, 2013.

That very same day, Plaintiffs filed lawsuits challenging certain House Bill 589 provisions in the federal district court for the Middle District of North Carolina. Plaintiffs alleged that the challenged provisions violated both the United States Constitution and the Voting Rights Act. Soon thereafter, in September 2013, the United States filed a lawsuit challenging certain House Bill 589 provisions exclusively under the Voting Rights Act. And finally, a group of young voters intervened, also asserting constitutional claims.

The lawsuits were consolidated, the parties undertook discovery, and Plaintiffs moved for a preliminary injunction. House Bill 589 contains numerous provisions, only some of which Plaintiffs challenge. Specifically, Plaintiffs challenge the legality of, and asked the court to enjoin: the elimination of same-day voter registration; the elimination of out-of-precinct voting; the reduction of early-voting days; an increase in at-large observers at the polls and the deputizing of any resident to challenge ballots at the polls; the elimination of the discretion of county boards of elections to extend poll hours under extraordinary circumstances; and the soft roll-out of voter identification requirements to go into effect in 2016.

A. Same-Day Registration

In 2007, the General Assembly passed legislation permitting same-day registration at early-voting sites. The law provided that " an individual who is qualified to register to vote may register in person and then vote at [an early-voting] site in the person's county of residence during the period for [early] voting provided under [Section] 163-227.2." 2007 N.C. Sess. Laws 253, § 1 (codified at N.C. Gen. Stat. § 163-82.6A(a) (2008)). The law required a prospective voter to complete a voter-registration form and produce a document to prove his or her current name and address. Id. (codified at N.C. Gen. Stat. § 163-82.6A(b) (2008)).

If the registrant wanted to vote immediately, he or she could " vote a retrievable absentee ballot as provided in [Section] 163-227.2

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immediately after registering." Id. (codified at N.C. Gen. Stat. § 163-82.6A(c) (2008)). Within two business days, both the pertinent county board of elections and the State Board of Elections were required to verify the voter's driver's license or social security number, update the database, proceed to verify the voter's proper address, and count the vote unless it was determined that the voter was not qualified to vote. Id. (codified at N.C. Gen. Stat. § 163-82.6A(d) (2008)).

House Bill 589 eliminated same-day registration. A voter's registration must now be postmarked at least twenty-five days before Election Day or, if delivered in person or via fax or scanned document, received by the county board of elections at a time established by the board. N.C. Gen. Stat. § 163-82.6(c)(1)-(2).

Plaintiffs' expert presented unrebutted testimony that African American North Carolinians have used same-day registration at a higher rate than whites in the three federal elections during which it was offered. Specifically, in 2012, 13.4% of African American voters who voted early used same-day registration, as compared to 7.2% of white voters; in the 2010 midterm, the figures were 10.2% and 5.4%, respectively; and in 2008, 13.1% and 8.9%. The district court therefore concluded that the elimination of same-day registration would " bear more heavily on African-Americans than whites." McCrory, 997 F.Supp.2d at 355.

B. Out-of-Precinct Voting

In 2002, Congress passed the Help America Vote Act, 42 U.S.C. § § 15301-15545. Under the Help America Vote Act, states are required to offer provisional ballots to Election Day voters who changed residences within thirty days of an election but failed to report the move to their county board of elections. See 42 U.S.C. § 15482(a). However, such provisional ballots are only required to be counted " in accordance with State law." Id. § 15482(a)(4).

In response, the North Carolina General Assembly passed Session Law 2005-2, removing the requirement that voters appear in the proper precinct on Election Day in order to vote. 2005 N.C. Sess. Law 2, § 2 (codified at N.C. Gen. Stat. § 163-55(a) (2006)). The law provided that " [t]he county board of elections shall count [out-of-precinct provisional ballots] for all ballot items on which it determines that the individual was eligible under State or federal law to vote." Id. § 4 (codified at N.C. Gen. Stat. § 163-166.11(5) (2006)).

The General Assembly made a finding when it adopted the mechanism in SL 2005-2 that " 'of those registered voters who happened to vote provisional ballots outside their resident precincts on the day of the November 2004 General Election, a disproportionately high percentage were African-American.'" McCrory, 997 F.Supp.2d at 368 (citation omitted).

The district court found that (1) between the years 2006 and 2010, an average of 17.1% of African Americans in North Carolina moved within the State, as compared to only 10.9% of whites; and (2) 27% of poor African Americans in North Carolina lack access to a vehicle, compared to 8.8% of poor whites. Also, the court accepted the determinations of Plaintiffs' experts that " the prohibition on counting out-of-precinct provisional ballots will disproportionately affect black voters." Id. at 366. According to calculations the district court accepted, the total number of African Americans using out-of-precinct voting represents 0.342% of the African American vote in that election. The total share of the overall white vote that voted out-of-precinct was 0.21%. Id. House Bill 589

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bars county boards of elections from counting such ballots.

C. Early Voting

" No-excuse" early voting was established for even-year general elections in North Carolina beginning in 2000. 1999 N.C. Sess. Law 455, § 1 (codified at N.C. Gen. Stat. § § 163-226(a1), 163-227.2(a1) (2000)). At that point, a registered voter could present herself at her county board of elections office " [n]ot earlier than the first business day after the twenty-fifth day before an election . . . and not later than 5:00 p.m. on the Friday prior to that election" to cast her ballot. N.C. Gen. Stat. § 163-227.2(b) (2000).

After the 2000 election cycle, the General Assembly expanded no-excuse early voting to all elections. 2001 N.C. Sess. Law 337, § 1. It also amended the early-voting period so that voters could appear at the county board of elections office to vote " [n]ot earlier than the third Thursday before an election . . . and not later than 1:00 P.M. on the last Saturday before that election." 2001 N.C. Sess. Law 319, § 5(a) (codified at N.C. Gen. Stat. § 163-227.2(b) (2002)). Under this law, county boards of elections were required to remain open for voting until 1:00 p.m. on that final Saturday, but retained the discretion to allow voting until 5:00 p.m. Id. They were also permitted to maintain early-voting hours during the evening or on weekends throughout the early-voting period. Id. § 5(b) (codified at N.C. Gen. Stat. § 163-227.2(f) (2002)).

House Bill 589 changes the law to allow only ten days of early voting. It also eliminates the discretion county boards of elections had to stay open until 5:00 p.m. on the final Saturday of early voting.

The district court found that in 2010, 36% of all African American voters that cast ballots utilized early voting, as compared to 33.1% of white voters. By comparison, in the presidential elections of 2008 and 2012, over 70% of African American voters used early voting compared to just over 50% of white voters.

D. Poll Observers and Challengers

North Carolina law permits the chair of each political party in every county to " designate two observers to attend each voting place at each primary and election." N.C. Gen. Stat. § 163-45(a). House Bill 589 allows the chair of each county party to " designate 10 additional at-large observers who are residents of that county who may attend any voting place in that county." 2013 N.C. Sess. Law 381, § 11.1 (codified at N.C. Gen. Stat. § 163-45(a)). " Not more than two observers from the same political party shall be permitted in the voting enclosure at any time, except that in addition one of the at-large observers from each party may also be in the voting enclosure." Id. The list of at-large observers must be " provided by the county director of elections to the chief judge [for each affected precinct]." Id. (codified at § 163-45(b)).

In conjunction with the addition of at-large observers, the law now permits any registered voter in the county to challenge a ballot on Election Day. Id. § 20.2 (codified at N.C. Gen. Stat. § 163-87)). And during early voting, any state resident may now ...


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