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Citation:
Atiba R. Ellis, When Political Domination Becomes
Racial Discrimination: NAACP v. McCrory and the
Inextricable Problem of Race in Politics, 68 S. C. L.
Rev. 517, 538 (2017)
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WHEN
POLITICAL
DOMINATION
BECOMES
RACIAL
DISCRIMINATION:
NAACP
V.
MCCRORY
AND
THE
INEXTRICABLE
PROBLEM
OF
RACE
IN
POLITICS
Atiba
R.
Ellis
I.
INTRODUCTION.
...................................
.........
517
II.
BACKGROUND OF
MCCRORY
CASE.....
.......................
519
III.
THE
McCRORYDECISION
AND
THE
DUE
CARE
APPROACH..................523
IV.
THE
UNCERTAIN
FUTURE
OF
MCCRORY
AND
POSSIBLE
SUPREME
COURT
REVIEW
..................................
..........
529
V.
CONCLUSION
....................................................
535
I.
INTRODUCTION
In
North
Carolina
State
Conference
of
the
NAACP
v.
McCrory,'
the
United
States
Court
of
Appeals
for
the
Fourth Circuit
struck
down the
State
of
North
Carolina's
omnibus
voting
law
passed
in
2013.
The
court held
that
the
law
violated
the
Fourteenth
and
Fifteenth Amendments
to
the
U.S.
2
Constitution
and
Section
2
of
the
Voting
Rights Act
of
1965.
In
reversing
the
decision
of
the
United
States
District
Court
for
the
Middle
District
of
North
Carolina
upholding
the
omnibus
voting
law,
3
this panel
held
that
North
Carolina's
election
changes were
passed with
a
discriminatory
effect.4
Moreover,
the
Fourth
Circuit held that
North
Carolina's
electoral changes
were
passed
with
an
intent
to
abridge
the
ability for
African
Americans
to
vote.5 While
as
of
this
writing,
North
Carolina
has
filed
a
petition
for
Professor
of
Law,
West
Virginia University
College
of
Law.
The
author
would
like
to
thank
Elizabeth
Stryker
for
research
assistance
with
this
Article.
The
author
would
also like
to
acknowledge
the
support
of
Dean
Gregory
W.
Bowman and
the
West
Virginia
University
College
of
Law
for financial
support
of
this
research via
the
Arthur
B.
Hodges Summer
Research
Grant.
Feedback
and
comments
on this
Article
are
welcome
at
atiba.ellis@mail.wvu.edu.
1.
N.C.
State
Conference
of
the
NAACP
v.
McCrory,
831
F.3d 204
(4th
Cir.
2016).
2.
Id.
at
219.
3.
N.C.
State
Conference
of
the NAACP
v.
McCrory,
182
F.
Supp.
3d 320,
423
(M.D.N.C.
2016).
4.
McCrory,
831
F.3d
at
229.
5.
Id.
at
225.
517
SOUTH
CAROLINA
LAW
REVIEW
certiorari
from
the
United
States
Supreme
Court
to
review the Fourth
Circuit's
opinion,
6 the
ruling
in
this
case
represents
a
landmark
victory
for
voting rights
advocates
against
strict
voter
identification
laws and
other
similar regulations that
foster
voter
suppression
in the
political
process.
It
also
represents
a
remarkable
and
extraordinary
use
of
the Fourteenth
and
Fifteenth
Amendments
specifically
to
find
discriminatory
intent
on
the
basis
of
race.
These
issues, however,
remain contentious
across
the
country.
The
Fourth
Circuit's
ruling
stands
in
contrast
with rulings
from
other
jurisdictions that
have,
on
similar
evidence,
tended
to
find
evidence
of
intention
less
than
fully
persuasive
and
thus constitutional penalties
did
not
accrue.
7 The
Fourth
Circuit's
ruling
stands
out
as
an
effort
for
a
three-judge
court,
in the
face
of
a
shifting political
scene
as
well
as
a
changing
legal and
jurisprudential
landscape,
to articulate
a
standard
for
understanding
where
political manipulation
translates
into
racial
discrimination-a
standard
described
in
this
Article
as
required
due
care
in the
analysis
of
race.
This
Article
begins,
in
Part
II,
with
a
description
of
the
background
to
this
case.
Then
in
Part
III,
this Article will
examine the
McCrory
decision
with
an
eye
towards parsing
out
how
the
court arrived
at
this
due
care
approach.
Part
IV
then
confronts
the
uncertain
future
of
McCrory
in
light
of
its
possible review
by
the Supreme Court, the
uncertain
present
around
the
Voting
Rights Act,
and
the
disfavored
academic
and
judicial
literature around
race-conscious
remedies.
In
particular,
it
will
compare
McCrory
with
Abbot,
the
Fifth
Circuit's
fractured
opinion considering
claims
of
disparate
impact
and
intentional
discrimination
in
Texas's
voter
identification
law,
another
voter
qualification
regulation
passed
in the
wake
of
Shelby
County
v.
Holder.
8
This Article concludes
optimistically
by
noting
that
whether
McCrory
represents
a
momentary victory
in the larger
attack against
the
Voting
Rights
Act
or
whether it
stands
as
good
law
for
the
foreseeable
future, the
opinion
offers
a
well-reasoned
approach
that
accomplishes
the
ends
of
the
Voting
Rights Act
through
offering
a
race-conscious
intersectional approach
grounded
in the
reality
of
voter
suppression
in
North
Carolina.
And
it
is
to
that
history that
this
Article
now
turns.
6.
Harris
v.
McCrory,
159
F.
Supp.
3d 600
(M.D.N.C.
2016),
argued
Dec.
5,
2016.
7.
In
particular,
as
will
be
discussed
in
this
Article,
the
Fifth
Circuit,
in
considering
the
recently passed
voter
identification law
in
Texas,
found that
the
regulation had
a
disparate
racial
impact but
fractured
on
whether
the
voter
ID
law had been
passed
with
an intent
to
abridge
the
right
to
vote
on
the
basis
of
race.
See Veasey
v.
Abbott,
830 F.3d
216
(5th
Cir.
2016).
8.
133
S.
Ct.
2612
(2013).
518
[VOL.
68:
517
THE
INEXTRICABLE
PROBLEM
OF
RACE
IN
POLITICS
II.
BACKGROUND OF
McCRORY
CASE
In 2010,
the Republican
Party
came
to
dominate
North
Carolina's
state
legislature.9
Shortly thereafter,
in 2012,
Pat McCrory,
a
Republican,
was
elected
governor
of
North
Carolina thus
unifying
legislative
and
executive
control
of
the
legislature
under
one
political
party.' 0
This
Republican
legislature
sought
to
implement
a
number
of
legislative
priorities that
it
felt
had
been neglected under
the
prior period
of
political
control
divided
between
the
Democratic
Party and
the
Republican
Party.
One
of
the
Republican
Party's
political priorities
was
the
institution
of
voter
identification
laws
and
limitation
of
voter
inclusiveness
laws
that
were
designed
to
foster further
participation in
the
electoral
process."
The
Republican
legislature
sought
to
implement these
more
"strict"
voter
participation
laws to enhance
election integrity
and
to
enhance
their
*12
opportunities
to
win
elections.
Yet
these
goals
did
not
stand in isolation.
North Carolina's
efforts
to
transform
voting
regulations
must
be
read
against
the
history
of
the
state
regarding
race and politics.
From the
passage
of
the
Voting
Rights
Act
in
1965
to
2013,
North
Carolina
(or
portions
of
the
state)
had
to
negotiate
with
the federal
government concerning
its
voting
laws
prior
to
implementing
them.
13
This
had the
effect
of
allowing
the
federal
government
to
shape
the
direction
of
any
change
in
voting.
The leverage
that
the federal
government
had
in
order
to
negotiate these
laws
was
based
on
Section
5
of
the
Voting
Rights
Act
of
1965.
Congress
determined
that
Section
5
of
the
Voting
Rights
Act
required
that
certain
jurisdictions,
which
had
a
history
of
discriminating
on
the
basis
of
race
when
it
comes
to
political
participation
and
had
a
continuing disparate
impact regarding
race
when
it
comes
to actual
9.
GOP
Takes
Control
of
State
Legislature,
WRALCOM
(Nov.
2,
2010),
http://www.wral.com/news/local/politics/story/8556651/.
10.
North
Carolina
Election
Results
2012:
McCrory
Wins
Governor's
Race;
Hudson
Tops
Kissell
for
House
Seat;
Romney
Gets
Narrow
Victory,
WASH.
POST
(Nov.
7,
2012),
https://www.washingtonpost.com/politics/decision20l2/north-carolina-election-results-2012-
mccrory-wins-govemors-race-hudson-tops-kissell-for-house-seat-ronney-gets-narrow-
victory/2012/11/07/201e8cle-23a8-11e2-ac85-e669876c6a24
story.html?utm
term=.72d8274
38331.
11.
Aaron
Blake,
North
Carolina
Governor
Signs
Extensive
Voter
ID
Law,
WASH.
POST
(Aug.
12,
2013),
https://www.washingtonpost.com/news/post-politics/wp/2013/08/12/north-
carolina-governor-signs-extensive-voter-id-law/?utm
term=.ef4al09b1cf4.
12.
Id
13.
See
Richard
L.
Hasen, This
is
Why
the
Voting
Rights
Act
is
on
Trial
in
North
Carolina,
WASH.
POST
(July
31,
2015),
https://www.washingtonpost.com/
news/monkey-cage/wp/2015/07/31/this-is-why-the-voting-rights-act-is-on-trial-in-north-
carolina/?utm term=.4023b5804c41.
2017]
519
SOUTH
CAROLINA
LAW
REVIEW
participation
in the
political
process, had
to
have
their
voting
rights
laws
subjected
to
approval
by
the
United
States
Department
of
Justice.1
4
During
the
most
immediate
time Section
5
preclearance
was
in
effect,
as
the
Fourth
Circuit
observed,
"African-American voter registration
swelled
by
51.1%
(compared
to
an
increase
of
15.8%
for
white voters).
African-American
turnout
similarly
surged, from
41.9%
in 2000 to
71.5%
in
2008
and
68.5%
in
2012."
As
a
result,
North
Carolina,
like
many
other
states
including
Texas
and
16
Virginia
and
a
number
of
other
jurisdictions
across the country,
had
to
negotiate
with
the
Department
of
Justice
in
order
to
get pre-clearance
or
pre-
approval
regarding
any
voting
rights
change
that
would
have an effect on
minority
citizens.
Within this
context,
North
Carolina,
like
South
Carolina
and
other
jurisdictions
at
the
time,
negotiated with
the
Department
in
order
to
implement
a
voter
identification
regime
and
other
voter
participation
rules
changes in
line
with
the
political interest
of
the
Republican
Party
but,
at
the
same
time, to avoid claims
of
racial
discrimination.
The
Supreme
Court's
2013
decision
in
Shelby County
v.
Holder1
7
changed
all
of
this.
In
Shelby
County,
the Supreme
Court
struck
down
Section
4(b)
of
the
Voting
Rights
Act."
Section
4(b)
contained
the
formula
by
which
the federal
government determined
which
jurisdictions
in the
United
States
would
be
considered covered
jurisdictions
and
as
a
result
would
have
to
be
subjected
to
pre-clearance.1
9 The
opinion
of
Chief
Justice
John
Roberts for
the
Shelby County
majority
found that
Congress,
in
reauthorizing
the
Voting
Rights
Act,
had
not taken
into
account
changes in
the
rates
of
participation
in
voting
in the South
nor
had
Congress
taken
into
account
the
concept
of
equal
sovereignty
among
the states
when
it
came
to
the federal
government's
power
to
regulate
areas
that
were
traditionally
considered provinces
of
state
authority.20
On
this basis,
the
Court
struck
14.
Shelby
Cnty.
v.
Holder,
133
S.
Ct.
2612, 2619
(2013).
15.
McCrory,
831
F.3d
at
215.
It
is
also
worth
noting that
in
2008 and 2012,
Barack
Obama, the
first
candidate
for
the
presidency
of
African
descent, was
running
for office.
His
candidacy
led
to tremendous
African
American
turnout.
It
was
precisely
this
turnout
that
created significant
opportunities
for
the
Democrats
to
be competitive
in
close
jurisdictions.
See
Atiba
R.
Ellis,
The
Cost
of
the
Vote:
Poll
Taxes,
Voter
Identification
Laws,
and
the
Price
of
Democracy,
86
DENV.
L.
REv. 1023,
1023
n.2
(2009).
This
is
certainly
true for
North
Carolina,
which
has, over
the late
twentieth and
early
twenty-first
centuries,
emerged
as
a
quintessential
swing state
in
presidential
elections.
16.
See
Shelby
Cnty.
v.
Holder,
133
S.
Ct.
2612,
2620
(2013).
17.
Id.
18.
Id.
19.
42
U.S.C.
§
1973(b)
(2012),
transferred
to
52 U.S.C.
§
10303(b)
(2012).
20.
Shelby
Cnty.,
133
S.
Ct.
at
2623-24.
520
[VOL.
68:
517
THE
INEXTRICABLE
PROBLEM
OF
RACE
IN
POLITICS
down
Section
4(b),
which
had
the
effect
of
leaving the
Section
5
preclearance
regime inoperative
while
leaving
open
the opportunity
for
Congress
to
pass
a
new Section
4(b)
that
took
into
account the changes in
21
political
culture
on
which
the
Court relied.
In
the
wake
of
Shelby
County,
North
Carolina
no
longer
needed
to
preclear
its
election
regulation
changes.
Indeed,
the
state
took
the
opportunity
to
pass
voting
regulations
that
fully
comported
to their particular
22
political
ends.
Accordingly, during
a
special
session
in
July
and
August
of
2013,
North
Carolina
reconsidered
all
of
the
political
measures
that
it
deemed
necessary
to
pass
and
focused
on
establishing
a
"strict"
voter
identification provision,
limiting
same-day
voting
registration, limiting
early
voting opportunities, eliminating Sunday
voter
registration
opportunities,
23
and
other
provisions.
In
reaching
this
decision,
the
legislature
specifically
"requested
and
received
racial
data
as
to
usages
of
the practices
changed
by
the
proposed
law."
24 The
data
the
legislature
received
showed
that
African
Americans
disproportionately
did
not
possess
the
voter
identification
credentials
that
would
be
required under
its
act,
that
African
Americans
disproportionately
used
early
voting
in
both
2008 and 2012, and
that
African
Americans
disproportionately used
the
first
seven days
of
early
voting.
25
The
data
also
showed
that
African
Americans
disproportionately
used
same-day
26
registration
and
provisional
voting.
Further,
the
legislature
had
data
that
showed
that
African
Americans
disproportionately used preregistration
(the
practice
of
allowing sixteen
and
seventeen-year-olds
to
register
to vote
prior
to
turning
eighteen,
so
long
as
they would
be
eligible to
vote
by
the
next
election.)27
The
Fourth
Circuit observed
that
after
receipt
of
this
data,
the
legislature
eliminated
or
restricted
all
of
these
voting
practices
so
that
they
impacted
African-American
preferences.28
Thus,
at
the
end
of
this
session,
the
21.
Id
at
2631.
22.
The
Fourth
Circuit pointed
to
a
statement
by the
Republican Chairman
of
the
North
Carolina
Senate
Rules
committee
issued
the
day
after
the
Shelby County
decision:
"I
think
we'll
have an omnibus
bill
coming out"
and
that
the
Senate
would
pass
the
"full
bill."
N.C.
State
Conference
of
the
NAACP
v.
McCrory,
182 F.
Supp.
3d
320, 339
(M.D.N.C.
2016).
23.
See
Q&A:
Changes
to
NC
Election
Laws,
WRAL.CoM (Aug.
12,
2013),
http://www.wral.com/election-changes-coming-in-2014-2016/12750290/.
24.
N.C.
State
Conference
of
the NAACP
v.
McCrory,
831
F.3d
204,
216
(4th
Cir.
2016).
25.
Id
26.
Id.
27.
Id
at
217-18.
28.
Indeed,
the
Fourth Circuit
noted
that
the
district
court
had
observed
the following:
2017]
521
SOUTH
CAROLINA
LAW
REVIEW
legislature,
over
objections
from
Democrats
and
civil
rights
groups,
passed
new
rules
regarding election
regulations.29
These
rules
included
passage
of
a
voter
identification
provision
limiting
same-day
registration
opportunities,
limiting
early voting
opportunities,
and other
related provisions.
0 The
General
Assembly
passed
those rules
to take
effect
during
the
2014
election
cycle.
Yet,
civil
rights
groups
sued
and
obtained
a
stay
of
several
of
those
regulations.
3' The
district
court
denied
the
stay,
but
the
Fourth
Circuit order
stayed
the
elimination
of
the
same-day
registration
and
out-of-precinct
32
voting
changes.
The
Supreme
Court lifted
the
Fourth
Circuit's
stay
pending
its
decision
on
certiorari,
but
then denied
certiorari,
which
then
33
reinstituted
the
Fourth
Circuit's
stay.
The
other
rules
from
the
omnibus
voting
law
were
implemented
in 2014.
This
underlying
lawsuit
nonetheless proceeded
and,
at
trial,
the
State
of
North
Carolina
defended the
omnibus
voting
bill against
claims made
by
the
NAACP
and
other
civil
rights
groups
that
these
rules
had
a
disparate
effect
35
on
the
basis
of
race.
The
state
ultimately
argued
that
the
voting
laws
were
neutral
and
reasonable
and
necessary
to
protect
election
integrity.36
The
state
also
argued
that
the
laws
were
not
intended
to
disenfranchise
on
the
basis
of
37
race.
The
district
court found that
not
only
did
[the
omnibus
voting
law]
eliminate or
restrict
these
voting
mechanisms used disproportionately
by
African
Americans,
and
require
IDs
that
African
Americans
disproportionately
lacked,
but
also that
African Americans
were more
likely
to
"experience socioeconomic
factors
that
may
hinder
their
political
participation."
This
is
so,
the
district
court
explained,
because
in
North
Carolina,
African
Americans
are
"disproportionately likely
to
move,
be
poor,
less
educated,
have
less
access
to
transportation,
and
experience
poor
health."
Id.
at
218.
29.
See
H.B.
589,
2013
Gen.
Assemb.
(N.C.
2013); 2013
N.C.
Sess.
Laws
381.
SL
2013-381
"eliminated
one
of
two
'souls-to-the-polls'
Sundays
in
which African
American
churches
provided transportation
to voters.
McCrory,
831
F.3d at
217.
SL
2013-381
eliminated
same-day
voter
registration,
and
the
bill "retained
only
the
kind
of
IDs
that white
North
Carolinians
were
more
likely
to
possess."
Id.
at
216.
30.
2013
N.C.
Sess.
Laws
381.
31.
League
of
Women
Voters
of
N.C. v.
North
Carolina,
769
F.3d
224,
248-49
(4th
Cir.
2014).
32.
Jd.
at
238.
33.
Id.
34.
North
Carolina
v.
League
of
Women
Voters
of
N.C.,
135
S.
Ct.
6
(2014)
(Mem.).
35.
N.C.
State
Conference
of
the
NAACP
v.
McCrory,
182
F.
Supp.
3d 320,
331
(M.D.N.C.
2016).
36.
Id.
at
459.
37.
Id.
522
[VOL.
68:
517
THE
INEXTRICABLE
PROBLEM
OF
RACE
IN
POLITICS
However, in advance
of
the trial, the
state
ratified
House Bill
836.38
This
law
amended
the photo
ID
by
providing
a
reasonable impediment exception
to the
photo
ID
requirement.3
A
voter
could
under
this
provision
cast
a
provisional
ballot
if
she
filed
a
written
declaration
stating
that
she
had
"a
reasonable impediment
that
prevents the
voter
from
obtaining photo
identification."
40
In
light
of
this,
the
district
court
bifurcated the trial
so
that
all
the
other
provisions
of
the
omnibus
voting
law
were
tried
first,
and
then
a
separate
trial
took
place
regarding
the
photo
ID
requirement.
After
the
bifurcated
trial,
the
district
court agreed
with
the
state's
provisions
and
upheld
the
omnibus
voting
law.
4'
In
agreeing
with
the
state's
position,
the
trial court wrote
an
in-depth opinion
of
over
one-hundred pages
which went
item
by
item
and
ultimately
justified
each
individual voting
42
change
provision.
The
district
court
found no
discriminatory
results under
Section
2,
no
discriminatory
intent
under
either
Section
2,
the
Fourteenth
Amendment,
or
the
Fifteenth Amendment,
and
no
violation
of
the
Twenty-
Sixth
Amendment.
43
Consequently,
the
plaintiffs
appealed
this decision
to
the
United
States
Court
of
Appeals
for
the
Fourth
Circuit.
44
III.
THE
McCRORYDECISION
AND
THE
DUE
CARE
APPROACH
On
appeal
before
the
Fourth
Circuit,
the
plaintiffs renewed their
arguments
that
the
laws
were
passed with discriminatory
intent
and
had
a
discriminatory
effect.
45
A
three-judge
panel
of
the
Fourth
Circuit
heard these
claims
and agreed
with
the
plaintiffs that
the
North
Carolina omnibus
voting
bill
had
been passed with discriminatory
intent
in
violation
of
the
Equal
Protection
Clause
of
the
Fourteenth
Amendment.
46
In
short, the
Fourth
Circuit
determined
that
the
district
court was
myopic
in
its
analysis.47 The
opinion,
which
was
unanimous
in
all
respects
except
the
scope
of
the
prospective
remedy,
was
authored
by
Judge
Diana Gribbon
Motz.
48
The
opinion
opens
by
criticizing
the
methodology
of
the
district
38.
H.B.
836,
Gen.
Assemb.,
Reg.
Sess.
(N.C.
2015).
39.
Id.
40.
Id.
41.
N.C.
State
Conference
of
the
NAACP
v.
McCrory,
831
F.3d
204,
219
(4th Cir.
2016).
42.
Id
43.
Id.
44.
McCrory,
831
F.3d
at
219.
45.
Id
46.
Id.
at
235.
47.
Id
at
214.
48.
Id
2017]
523
SOUTH
CAROLINA
LAW
REVIEW
court
in
as
much
as
the
district
court
"missed
the
forest
in
carefully
surveying
the many
trees."
49
In
other
words,
the
Fourth
Circuit criticized
the
district
court's
methodology
of
examining
each
particular
legal
change in
isolation
and
thus
finding
that
the
vast
majority
of
the
individual rules
passed
had
a
neutral,
rational
basis
and
therefore
ought
to
be
considered
legal.
50 The
Fourth Circuit
opined
that
the
district
court
had
ultimately
ignored
the
import
of
the
underlying totality
of
the
circumstances
analysis
required
under
the
Voting
Rights
Act.
The
Fourth
Circuit
ultimately
found
that
the
district
court's
narrow-
sighted approach
to
analyzing
the
North
Carolina
omnibus
voting
bill
ignored
the overall
total impact that
the
laws
had
in
terms
of
their
ability
to
dissuade
African-American
voters
from
voting.
52 The
district
court
ignored
the true
totality
of
the
circumstances
by
focusing
on
the
proffered
reasons
for
the changes in
law
without
actually
exploring
the
overall
atmosphere
in
which
the
laws
were created
and
thus
leaving
out
the
circumstantial
evidence
* *
53
of
discriminatory
animus
regarding these
provisions.
In
particular,
the
Fourth
Circuit's
opinion articulated
a
legal
standard
in
terms
of
assessing
the
totality
of
circumstances regarding
impact
under
Section
2
of
the
Voting
Rights Act.
54
In
reaching
this
conclusion,
the
panel
framed
the
legal
principle
as
a
question
of
understanding
intentional racial
discrimination
within
the
context
of
legislative
decision-making regarding
the
law
governing
politics.
55
The
court
began
with
an
explication
of
the
test
for
discriminatory
intent
set
forth
in
in Village
of
Arlington
Heights
v.
Metropolitan
Housing
56
Development
Corp.
The
panel
explained
that this
test
examines
the
49.
Id.
50.
Id.
51.
Id.
at
233.
52.
Id.
53.
Id.
See
also
id
at
215
("Although
the
Fourteenth and Fifteenth
Amendments
to the
United
States
Constitution prohibit
racial
discrimination
in
the
regulation
of
elections,
state
legislatures
have
too
often
found
facially
race-neutral
ways
to
deny
African
Americans
access
to
the
franchise.").
54.
Id.
The
Fourth
Circuit stressed
that
"any
individual
piece
of
evidence can
seem
innocuous when viewed
alone,
but
gains
an
entirely
different
meaning when considered
in
context,"
thus
finding that
a
totality
of
the
circumstances
approach,
as
required
by
Arlington
Heights,
is
necessary
to
uncover discriminatory
racial
intent.
Id.
at
233.
55.
Id.at234-35.
56.
429
U.S.
252
(1977).
This "sensitive
inquiry"
test includes
"the
historical
background
of
the
[challenged]
decision";
"the specific sequence
of
events leading up
to
the
challenged
decision";
"[d]epartures
from
normal
procedural
sequence";
"the
legislative
history
of
the
decision"; and
the
disproportionate "impact
of
the
official
action,
whether
it
bears
more
524
[VOL.
68:
517
THE
INEXTRICABLE
PROBLEM
OF
RACE
IN
POLITICS
circumstantial evidence around
a
decision
to
determine
whether
a
discriminatory
purpose
was
"a
motivating
factor,"
or
a
"because
of'
factor
in
making
the
decision. To
analyze
this,
the
court
correctly
noted
that
this
inquiry must
necessarily
be
circumstantial
since
explicit
evidence
regarding
the
decision
would
be
difficult
to
find.
Moreover,
the
court
noted that
this
circumstantial evaluation
is
particularly
pertinent
to
vote denial
cases,
in
as
much
as
"discrimination
today
is
more
subtle
than
the
visible
methods
used
in
1965
."59
Further, in
acknowledging
that
the
circumstantial
evidence
may
be
rebutted
by
a
demonstration
by
the
government
that
the
non-
discriminatory purposes
alone
justify
the
law,
the
court
noted
its role
as
not
60
to
be
deferential
to the
views
of
the
legislators.
While
this
serves to
frame
the
Arlington
Heights
analysis
generally,
the
most
controversial
part
of
the
court's
framing
of
these
issues
is
its
reliance
on
racially
polarized
voting
doctrine
to
explain incentives for racial
discrimination.
The
court
reasoned
that
racial
polarization
in
voting-that
is,
the
strong correlation
between the
race
of
a
group
of
voters and
a
strong
preference for
a
particular
candidate
both
exists in
North
Carolina
and
thus
61
provides
incentives for legislators
to
discriminate
on
the
basis
of
race.
In
other words,
the
"political cohesiveness
of
the
minority groups
.
..
provides
the
political
payoff
for
legislators
who
seek to dilute
or
limit the
minority
vote."62
In
other words,
politicians
who
see
a
racially polarized
electorate
may
be
motivated
to
target
that
particular minority
group in
ways
that
diminish
their
voting power
so
that
the group
may entrench
itself
through
63
discriminatory
election
laws.
heavily
on
one
race than
another."
McCrory,
831
F.3d
at
220-21
(quoting
Arlington Heights,
429
U.S.
at
266-67).
57.
McCrory,
831
F.3d
at
220.
58.
This
circumstantial
evidence test includes an inquiry into
the
following
factors: the
historical background
to the
decision,
the
sequence
of
events
related
to the
decision,
departures
from
normal procedural
sequence,
the
legislative
history
of
the
decision, and
the
disproportionate
impact
of
the official
action with particular regard
as
to
whether
it
weighs
more
heavily
on one
race or
another.
Arlington Heights,
429
U.S.
at
226-27.
59.
McCrory,
831
F.3d
at
221.
60.
Id.
at
226-27.
61.
Id.
at
222.
62.
Id.
at
222.
63.
This
theory
necessarily
relies
on
vote
dilution
cases
to
establish
its history.
In
particular,
the
Fourth Circuit relied
on
LULAC
v.
Perry,
548
U.S.
399
(2006),
for this
analysis
to
demonstrate
that
such
discrimination may
take
place. In
effect,
this opinion extends
the
theory
to the
vote
denial
realm
through
reasoning
that
such
behavior
by
legislatures
is
impermissible
as
it
constitutes
an intentional targeting
on
the
basis
of
race.
McCrory,
831
F.3d
at
222-23
(reasoning that
racially
polarized
voting
may
motivate
politicians
impermissibly
applies
to
the
vote
denial
context
because "legislatures
cannot
restrict voting
access
on
the
basis
of
race.
(Nor,
we
note,
can
legislatures
restrict
access
to
the
franchise
based
on
the
desire
2017]
525
SOUTH
CAROLINA
LAW
REVIEW
Indeed, the
Fourth Circuit
goes
so
far
as
to observe:
"Using
race
as
a
proxy
for
party
may
be an
effective
way
to
win
an
election.
But
intentionally
targeting
a
particular
race's
access to the franchise
because
its
members vote
for
a
particular
party, in
a
predictable
manner,
constitutes
discriminatory
purpose."64
In
making
this
examination
under
Arlington Heights,
as
modified
by
the
racial
polarization
principle,
the
Fourth
Circuit
made
an
effort to
understand
the
legislative
direction
and
the
facts
and
circumstances around
the
65
legislature's
actions.
It
also
added
the
context
of
North
Carolina's
history
and
the
present
statements
that
could
have
been read
as
animus
regarding
the
ability
for
black
voters
in
North
Carolina
to
participate
in the
political
66
process.
In
particular,
the
Fourth
Circuit
recognized that
race
and
politics
were
inextricably linked
and
that
both
conventional
wisdom
and data
regarding voting patterns
in
North
Carolina
demonstrated
that
racial
bloc
voting
continues
to
be
a
particular phenomenon
in
North
Carolina's
electoral
68
process.
This historical
and
modem
day
framing
of
North Carolina's
status
as
a
racially
polarized
electorate
framed
the
Arlington
Heights
analysis
for
the
Fourth
Circuit.
It
went
to
great lengths
to criticize the
district
court
for
failing
to
reconcile
the
history
of
racial
discrimination with
the evidence
of
racial impact and
the claims
of
discriminatory
intent.69
This
was
a
recurring
theme.
It
examined
the
former
of
these issues
through
exploring
in detail
North
Carolina's
history
regarding
racial
discrimination
under
its Section
5
experience
and
pending
lawsuits
regarding
racial
gerrymandering.
70
The
panel then
examined
the
latter
issue
through
a
detailed parsing
of
the
history
of
the
passage
of
the
omnibus
voting
regulations
bill.
7
It
noted
that
the effort to
pass
the
bill
took
place almost
immediately
after
the
decision
in
Shelby
County,
suggesting
a
discriminatory motivation
to
pass
72
the
law.
The
court
then
emphasized that
the
bill was
considered
in special
session
and
that
the
rules
and
practices
which took
place
during the
special
session deviated
from the
basic
practices
of
the legislature
in
such
a
way
as
to
benefit
a
certain political
party.)")
(citing
Anderson
v.
Celebrezze,
460
U.S.
780,
792-93
(1983)).
64.
McCrory,
831
F.3d
at
222.
65.
Id.
at
225.
66.
Id.
67.
Id.
68.
See
id.
at
229-30.
69.
Id.
at
214.
70.
Id.
at
214-19.
71.
Id.
at
230.
72.
Id.
at
229.
526
[VOL.
68:
517
THE
INEXTRICABLE
PROBLEM
OF
RACE
IN
POLITICS
one
could
read
the
context
as
a
decision
being
made in
a
fly
by
night
manner.73
While
there were no
particular
rule
changes, the
deviations from
the rules
were
deemed
to
be
extraordinary
in
terms
of
the
procedures
used
to
pass
these
laws and
that
the
ultimate
presentment
and
approval
of
these
laws
by
the
governor took
place
in
such
a
way that
it
raised
the concern
whether
there was
adequate
debate
around these
laws
or
adequate
knowledge
by
the
public
in
order
to make
public
opinion
known
on
whether
or
not passage
of
these
laws was in
line
with
the
people's
political
interest.
74
In
addition
to
these
procedural
concerns, the
court found
that
in
considering
the
substance
of
the
deliberations,
there was sufficient evidence
from
which
to
infer targeting
of
African
Americans
in
its
deliberations.
7 5
It
noted
that
the
district
court had
acknowledged
that
one
of
the
stated
purposes
of
the
bill was
to move
the
voter
qualification
laws
"back
to the
76
way it was"
prior
to
when
the
Republicans had
control
of
the
legislature.
But rather than
allowing
this
reason
to
serve
as
sufficient
justification,
the
panel
went
on
to
explain
that
this political
gamesmanship explicitly
targeted
the means to
register
and
vote
upon
which African
Americans
most clearly
relied.
The
opinion
explained
that
the
proffered
reasons
for
the
election
law
changes
particularly
the
Sunday
voting
changes-hinged
on
the
discrepancies
in
hours
and
the fact
that
the
counties
with
more
Sunday
voting
were
predominantly African
American.
7
'
This led Judge
Motz
to
conclude
that
"the
State's
very
justification
for
a
challenged
statute
hinges
explicitly
on
race-specifically
its
concern
that
African
Americans,
who had
overwhelmingly
voted
for
Democrats, had
too
much
access to the
franchise."
79
In
looking
at
that
pattern,
the
Fourth Circuit
found
that
there was
enough
circumstantial
evidence to
suggest
that
several
of
the
Arlington Heights
factors were met.80 The
court
noted
that
the
radical
change in
positions
between
the efforts
regarding voting
in the
preclearance
regime and those
efforts
post-Shelby
County
raised
concern.
8
In
addition
to the enormity
and
sweeping nature
of
the bill, the
court looked
at
commentary
in the
press
regarding
attitudes
of
political
leaders
regarding
race.82
Notably,
the
Fourth
73.
Id
74.
Id
at
228.
75.
Id.
at 225-26.
76.
Id.
at
226.
77.
Id.
78.
Id.
79.
Id
at
226
(emphasis
in
original).
80.
Id.
at
231.
81.
Id.
at
215-20.
82.
Id.
at
229
n.7.
2017]
527
SOUTH
CAROLINA
LAW
REVIEW
Circuit
quoted
at
length
the
comments
of
Don
Yelton, former
Republican
Party chair for Buncombe
County,
North
Carolina,
where
Mr.
Yelton
expressed
what
could
be
called animus
regarding the
ability for
African
Americans
to
vote
and
the
need
for
passage
of
voter
identification
laws.
83
These
circumstances
taken
as
a
whole
led
the
Fourth Circuit
to
find
that
there was
adequate evidence
of
discriminatory
intent
in the
passage
of
the
2013
omnibus
voting
regulations
bill.
And
the
Fourth
Circuit criticized
the
district
court
for
noting
in
significant places
the
fact
that
there were
disparities regarding
access
because
of
socioeconomic
factors,
but
failing to
bring
that
analysis to
bear
in
finding
that
there
is
an
inference
of
discrimination.
4
The
Fourth Circuit
also
dismissed
the
government's
proffered
interest
in
preventing
fraud
and
ensuring election
integrity. The
Fourth
Circuit,
as
other
courts
have
similarly
found,
had
concluded
that
there was no
actual
evidence
on
the
record
of
threats
to
election
integrity
or
substance
regarding
the idea
of
voter
fraud,
and moreover, there was
actual
evidence
of
racial
86
animus,
thus
distinguishing
Crawford
v.
Marion
County
from
this
case.
Moreover,
the
court
analyzed the
voter
identification requirement
as
both
over-broad
and
under
restrictive
in
relation
to
its
proffered
goal.
Additionally,
the
court
rejected
arguments
regarding
the
legitimacy
of
restrictions
on
early
voting
and
same-day
registration
because
the General
Assembly
had rejected
the
policy-driven
advice
of
the
State
Board
of
83.
See
Joe
Coscarelli,
Don
Yelton,
GOP
Precinct
Chair,
Delivers
Most
Baldly
Racist
Daily
Show
Interview
of
All
Time,
N.Y.
MAG.
(Oct.
24,
2013),
http://nymag.com/daily/intelligencer/2013/10/don-yelton-racist-daily-show-interview.html.
Mr.
Yelton
testified
before
the
North
Carolina
House
Rules
Committee
that
the
ID
requirement
would
"disenfranchise
some
of
[Democrats']
special
voting
blocks
[sic]," and
that "that within
itself
is
the
reason
for
the
photo voter
ID,
period,
end
of
discussion."
McCrory,
831
F.3d
at
229
n.7. The
Fourth
Circuit also
noted
that
Mr.
Yelton
said,
"If
[SL
2013-381]
hurts
the
whites
so
be
it.
If
it
hurts
a
bunch
of
lazy
blacks
that
want
to
government
to
give
them
everything,
so
be it."
Id
84.
McCrory,
831
F.3d
at
232
("In
sum,
while
the
district
court
recognized
the
undisputed
facts
as
to
the
impact
of
the
challenged
provisions
...
it
simply
refused
to
acknowledge their import.").
In
particular, this analysis relies
on
the
district
court's
acknowledgement
of
disparate
socioeconomic
status
for
African
Americans
but
its
dismissal
of
this disparate
status
as
having created
a
vulnerability
for
such
African
Americans.
I
have
argued
that this
precise
kind
of
political
vulnerability,
and
the
discrimination
to
which
it
may
lead,
ought
to
be
a
particular
situs
of
civil
rights
enforcement.
See Atiba
R.
Ellis,
Race,
Class,
and
Structural
Discrimination:
On
Vulnerability
Within
the
Political
Process,
28
J.
OF
CIVIL
RIGHTS
EcON.
DEVELOPMENT
33
(2015).
85.
McCrory,
831
F.3d
at
235-36.
86.
Id.at231.
87.
Id.
at
234-36.
528
[VOL.
68:
517
THE
INEXTRICABLE
PROBLEM
OF
RACE
IN
POLITICS
Elections.
Ultimately,
the
court found
that
"the
challenged provisions
in
SL
2013-381
constitute solutions
in
search
of
a
problem."
89
Accordingly,
the
panel
struck
down
the
law.
90
IV.
THE
UNCERTAIN
FUTURE
OF
MCCRORY
AND
POSSIBLE
SUPREME
COURT
REVIEW
The
future
of
this
case
remains
to
be
seen.
The
immediate
effect
of
the
ruling
was
to
enjoin moot
the
voter
identification
provision's
early voting
provisions
and limits
on
registration provisions
for
the 2016 election, even
though
some
argued
that
the
voter
suppression nonetheless occurred
even
with
the
Fourth
Circuit's
injunction
in
force.
9
1
This
finding survived
a
petition
for
a
stay
of
the
injunction
because
a
divided
Supreme
Court
declined
to
stay
the
Fourth
Circuit's
order
prior
to the 2016 general
election.92
Thus,
at
the
time
of
this
Article,
the
appeal
of
the
decision
by
the
State
of
North
Carolina
is
currently pending. However,
the
election
of
2016
gave
the
Democrat
Roy
Cooper
the
governorship
and
Democrat
Josh
Stein
the
office
of
Attorney
General.93
It
is conceivable
that
the
Governor
and
Attorney
General
may choose
to
rescind
Governor
McCrory's
appeal
of
this
decision.
94 While
this
would
conceivably end
this
litigation,
it
is
also
possible that
the
Republican-controlled
legislature
itself
may
continue the
appeal
before
the Supreme
Court.
95
It is
simply
unclear
at
this
point whether
the
petition
for
certiorari
currently before
the Supreme
Court will
go
forward.
88.
Id
at
237.
89.
Id
at
238.
90.
To
the
extent
that
there
was
a
dissent
in the
opinion, it
revolved around what
the
appropriate
remedy. The
majority
of
the
panel determined
that
the
omnibus voting
law
ought
to be
immediately
enjoined. Judges
Wynn
and
Floyd
determined that
the
constitutional
infirmity
ought
to
be
remedied immediately because
the
fact
that
it
had
been
done
with
discriminatory intent
made it
infirm
ab
initio.
Accordingly,
the
mandate
regarding
the
law
was
put
into
immediate
effect.
Judge
Motz
dissented
on
the
basis
that an immediate
disablement
of
the
law would
be inappropriate within
several
months
of
the actual
election.
91.
Editorial,
Voter
Suppression
in
North
Carolina,
N.Y.
TIMES
(Sept.
8,
2016),
https://www.nytimes.com/2016/09/08/opinion/voter-suppression-in-north-carolina.html?_r=0.
92.
North Carolina
v.
N.C.
State
Conference
of
the
NAACP,
137
S.
Ct.
27
(2016).
93.
North Carolina
2016
Elections,
BALLOTPEDIA (Nov.
8,
2016),
https://ballotpedia.org/NorthCarolinaAttorneyGeneralelection,_2016.
94.
Mark Binker,
Cooper
Not Tipping
Hand
on
Whether
He'll
Withdraw
NC
Voter
ID
Appeal,
WRALCOM
(Feb.
2,
2017),
http://www.wral.com/cooper-not-tipping-hand-on-
whether-he-11-withdraw-nc-voter-id-appeal/
6495766/.
95.
Id
2017]
529
SOUTH
CAROLINA
LAW
REVIEW
Nonetheless, this
was
a
clear
victory
for
voting
rights
advocates
during
the 2016
election
cycle.
And
even
though this
case
may
or
may
not
be
reconsidered
by
the Supreme Court, the
principles
it
articulated will
give
policymakers
and analysts
of
the
law
of
politics
much
to
consider
in the
future.
Probably
the
key
idea
that
will
influence
voting
rights
policy
going
forward
is the
Fourth
Circuit's
analysis
of
discriminatory
intent.
Certainly, the
North
Carolina
legislature
left
itself
open to critique
by
its
fly-by-night approach
to the
passage
of
the
omnibus
voting
bill.
The
court
made clear
its
substantial
concern for
the
procedural irregularity that
96
underlies
the
North
Carolina
General
Assembly's
actions.
But
even more
telling
was
the
court's
approach
in
determining
whether
race
was
an
impermissible motivating
factor
in
passage
of
the
law.
This
problem
has
dominated
not
only
the
time
of
the
courts
but
the
time
of
scholars
as
well.
Of
course,
Section
2
of
the
Voting
Rights
Act
was
designed
to
offer
a
broad remedy
against
racial
discrimination
in
voting.
The
end
goal,
as
has
been
stated
by many, has
been to
eliminate
racial bias
in the
administration
of
the
voting
process
(on
both
a
structural
and an
individual
level).
But
even
from
its
beginning,
Section
2
has
been
critiqued,
as
Christopher
Elmendorf
has explained,
as
"utterly
opaque,
likely
to
worsen
racial
conflict,
and
probably unconstitutional
(because
inadequately
tethered
to the
prevention
or
remediation
of
actual
constitutional violations)."
97 These
critiques
have
had
the effect
of,
among
other
things,
squarely raising
the
question
for
scholars
and
courts
as
to
what,
exactly,
constitutes
discrimination
on
the
basis
of
race.
98 Indeed, in
Elmendorfs
account
of
Section
2,
the
ultimate
focus
is
to ferret out
impermissible
race-based
decision-making
by
the
majority
in
a
particular
jurisdiction.
99
NAACP
v.
McCrory
focuses us
on
a
particular
aspect
of
this
problem:
how
to
determine
whether
racial
discrimination
that
correlates
with party
ambition
ought
to
be
actionable
under
Section
2.
This
race-or-party dilemma
96.
McCrory,
831
F.3d
at
214-30.
97.
Christopher
S.
Elmendorf,
That
Kind
of
Discrimination
Does
the
Voting
Rights
Act
Target?,
160
U.
PA.
L.
REV. PENNUMBRA
357,
357
(2012)
[hereinafter Elmendorf,
That
Kind
of
Discrimination].
See
also
Christopher
S.
Elmendorf,
Making
Sense
of
Section
2:
Of
Biased
Votes,
Unconstitutional
Elections,
and
Common
Law Statutes,
160
U.
PA.
L.
REv.
377
(2012).
98.
Guy-Uriel
E.
Charles, Response,
Section
2
is
Dead:
Long
Live
Section
2,
160
U.
PA.
L.
REV.
PENNUMBRA
219
(2012);
Elmendorf,
Fhat
Kind
ofDiscrimination, supra
note
97,
at
377.
For more
dialogue between
Elmendorf,
Charles, and Luis
Fuentes-Rohwer,
see
Luis
Fuentes-Rohwer,
Response,
Justice
Kennedy
to
the
Rescue?,
160
U.
PA.
L.
REV. PENNUMBRA
209
(2012),
which
raises
a
number
of
substantial questions about
how
Section
2
should be
properly
understood. These questions
take
heightened
relevance today
in
light
of
litigation
like
that
in
McCrory.
99.
See
Elmendorf,
Fhat
Kind ofDiscrimination, supra
note
97,
at
363.
530
[VOL.
68:
517
THE
INEXTRICABLE
PROBLEM
OF
RACE
IN
POLITICS
lies
at
the
heart
of
the
court's
reasoning,
and,
as
I
will
argue,
will become
a
focal
point
for
future Supreme
Court
jurisprudence
in this
area.
When
substantial blocs
of
voters who
are
all
of
the
same
race end
up
almost
uniformly
voting
for
the
same
political
party,
is
it
a
question
of
whether
a
particular
racial
intent informed
the
making
of
the
particular
political
choice,
or
is
it
that
the
political
choice
was
the
means to effect
a
racially motivated
end?
This
dilemma
had
been
forecasted
several
years
before
by
scholar Richard Hasen.
00
He
helpfully
contrasts
the
period
of
backlash
against
African American
voting
success
in
the
late
1890s
with
the
trajectory that this
litigation
took.' 0'
In
this
comparison,
he
sketches
out
how
the framing
of
the
consideration
of
such
a
law
like
North Carolina's
voting
qualifications
statute
as
one
that
is
about
"party competition"
or
otherwise
not
related
to
race, the
regulation
may
be
given
deference.102
But
if
such
a
law
is
framed
as
one
that
is
about
"race",
it
will
not
be
given
deference.1
03
Hasen
argues
that this
dichotomy
fails to
take
into
account
the
inherent
comingling
of
race
and
party
given the
behavior
of
voting
blocks.1
04
As
such,
Hasen
argues for
an
abolition
of
the
dichotomy
and
instead
he
advocates
for
"an
equal
protection
standard
which
requires substantial
evidence
justifying
a
burden
on
voters before
a
law
would
be
considered
constitutional."
05
While
Hasen's
solution
would
have
the
benefits
of
desiring substantial
evidence-based
justifications
for
election
law
changes
that disenfranchise,
a
concern
shared
by
a
number
of
election
law
scholars, 0 6
Hasen's
solution
falls
within
the ambit
of
discouraging
discussions
about
the
interrelationship
100.
See
Richard
L.
Hasen,
Race
or
Party?:
How
Courts
Should
Think
About
Republican
Efforts
to
Make it
Harder
to
Vote
in
North
Carolina
and
Elsewhere,
127
HARV.
L. REV. F.
58,
58-62
(2014).
101.
Id.
102.
Id
at
61.
We
have
seen
such
effects,
as
Hasen
has
pointed
out,
in
the
race-neutral
considerations
of
voter identification
laws
under
the
Crawford
v.
Marion
Co.,
553
U.S.
181
(2008),
standard under
the
Fourteenth
Amendment.
See,
e.g.,
Atiba
R.
Ellis,
A
Price
Too
High:
Efficiencies,
Voter
Suppression,
and
the
Redefining
of
Citizenship,
43
Sw.
L.
REV.
549
(2014)
(describing
a
deferential
utilitarian
balancing that prioritizes
states interests
over
generalized
voters'
interests
in
participation).
103.
Hasen,
supra
note
100,
at
61.
104.
Id
at
69.
105.
Id
at
72.
106.
See,
e.g., Heather
K.
Gerken,
The
Invisible
Election: Making
Policy
in
a
World
Without
Data,
35
OHIO
N.U.
L.
REV.
1013
(2009);
JUSTIN
LEVITT,
BRENNAN
CTR. FOR
JUSTICE,
THE
TRUTH
ABOUT
VOTER
FRAUD
(2007);
SPENCER
OVERTON,
STEALING
DEMOCRACY:
THE NEW
POLITICS OF
VOTER
SUPPRESSION
(2006).
See
also generally,
Atiba
R.
Ellis,
The
Meme
of
Voter
Fraud,
63
CATH.
U.
L.
REV.
879
(2014)
(reviewing
the
consequences
of
detachment
from
an
evidence-based
analysis).
2017]
531
SOUTH
CAROLINA
LAW
REVIEW
between
race and
politics in
a
way
that
falls
within
a
post-racialism
fallacy
by
acknowledging the
existence
of
the
interrelationship
of
race and
politics
but
failing to address
it
in
its own
terms
due
to
a
desire to
frame
the
terms
of
the
discussion
in
race-neutral
ways.
I
explore
this
in
my own
work
and
raise
the concern
that
this
period
of
the
modulation
of
race-conscious equality
has
occurred
precisely
because
we
decline
to
recognize
race
as
a
measuring
point
for equality
particularly
political equality
in
modem
society. 0 7
Put
another
way,
it
is
the normative aspiration
of
colorblindness coupled
with
the
belief
that
the
race-conscious
ends
of
integration
and
formal
equality
have
been
achieved
that
is
the driver
for
the
current
period
of
retrenchment
by
the Court.
The
Fourth
Circuit's
view
as
illustrated
by
McCrory
is
to
work within
existing doctrine and
explicitly
view
the existence
of
racialized voting
and
its
consequences
as
a
given.
It
is
arguable
that
the
Fourth
Circuit's analysis
and its
pointer
that
race
and
party
are
inextricably
linked
is
an
effort
to
fix
that
analysis
by
drawing
a
bright
line by
which partisans
cannot
unduly
manipulate
the
political
process given
the
scope
of
the
effects
that
that
manipulation
might
have. By
that,
I
mean
the
Fourth
Circuit
seems to
be
sending
the message
that
manipulation
of
particular
racial groups
in
order
to
effect
a
political
end
can
only
go
so
far
and
with
knowledge
of
that
particular
end
then
one
must then
be
subject
to the
further
regulation
demanded
by
the
Voting
Rights
Act.
Race
ought
to
remain
the
third
rail
of
the
law
of
politics.
As
we saw
in the
facts
in
McCrory,
the
court was strongly
persuaded
by
the
fact
that
the
general assembly,
in
analyzing
the
impact
of
its
proposed
voting
changes,
asked specifically
for
evidence
regarding
African
American
voting
patterns.
By
focusing
on
such
voting patterns,
the general
assembly
was
apparently
informed
that
those
voting
patterns
were
implicated
by
the
desire
for early voting
and
the
disparate
impact
on
African
Americans
regarding
voter
ID.
The
Fourth
Circuit focused very
much
on
the
fact
that
107.
Atiba
R.
Ellis,
Reviving
the
Dream:
Equality
and
the
Democratic
Promise
in the
Post-Civil
Rights
Era,
2014
MICH.
ST.
L.
REv.
789,
838 (2015).
In
this
piece,
I
offer an
account
of
Shelby
County
that reads
the case
as
a
post-racialist
narrative that
is
at odds
with
the
reality
of
voter
suppression,
as
McCrory
illustrates.
See
id.
at
839-42.
While
Hasen
and
other
scholars
tend towards
a
universalist view
in
part
to
persuade
the
Court
that
has
shown
disdain
for
race-conscious
voting
rights
remedies, see,
e.g.,
Charles,
supra
note
98,
at
226
("Conceptually,
I
am increasingly attracted
to
a
universal,
as
opposed
to
a
race-based,
approach
to
thinking
about
electoral
inequality."),
this
runs
the
risk
of
normalizing
racial
hegemony rather
than seeking
a
more
nuanced
account that locates
racial
oppression
along
with
other forms
of
oppression
that
are
historically
grounded
and continue
to
have operative
influence. Indeed,
McCrory's
focus on
race combined
with
the
socioeconomic effects that
make
possible
the
voter suppression
at
question
here
illustrate
my
point.
532
[VOL.
68:
517
THE
INEXTRICABLE
PROBLEM
OF
RACE
IN
POLITICS
with this
data
in
mind,
all
of
the
vulnerable
areas
demonstrated
by
the
report
were
areas
that
the
law
passed
by
North
Carolina
General
Assembly
focused
on.
The
Fourth Circuit
noticed
that North
Carolina,
"with
surgical
precision",
changed
the
law
to
target African
American voting
practices.
08
Thus,
when
one
puts
together
the
notion
that
race
and
voting
are
inextricably
linked
and
the fact
that
when it
came
to
voting
practices
as
analyzed
by
race, the
North
Carolina
General
Assembly
focused
on
African
American voting
practices.
The
underlying
policy
message
is
that
legislatures must
take
significantly greater
care
when
it
comes to
analyzing
these types
of
laws
and
that
legislatures
implementing
these types
of
laws
had
to
take such
due
care
is
the
ultimate
thrust
of
the opinion.
This
analysis
rejects
the
race
and
party dichotomy
given
the
evidence
placed
on
the
record.
The case
thus illustrates
what
a
lack
of
due
care
standard
is
in
relation
to the
unavoidable
racial
components
of
voting
practices.
A
knowing disregard
of
such
due
care
is
the
ultimate
violation
of
the
Voting
Rights
Act
and
of
the
Fourteenth
Amendment.
And
this
kind
of
disregard
can
exist
even
if
an
expressly
racist
attitude
is
not
announced
on
the
record.
This
sort
of
analysis
would
seem consistent
with
cases
like
Gomillion
v.
Lightfoot
09 where the
practices
accompanied
with
the
district's
intent
and
this
notion
of
lack
of
due
care
seemed
to
dominate
what
the political
process
set out
to
do.
This transitive
intent
would
seem
to
be
problematic,
however,
in cases
where
the
proof
of
motivation
is
less
than
clear,
even
by
a
circumstantial
measure.
This
can be
seen
by
comparing
McCrory
with
Fifth
Circuit's
recent decision
in
Veasey
v.
Abbott."1
0
That
case
addressed
the
2014
Texas
voter identification provision passed in
the
wake
of
Shelby
County."
There,
a
majority
of
the
Fifth
Circuit
en
banc
agreed
with
the
district
court
that
a
disparate
impact
on
the
basis
of
race existed
in
regards
to
Texas
voting
changes,
but
this
majority fractured
in
regards
to
whether discriminatory
intent was
findable
on
the evidence
presented.112
The
Fifth
Circuit majority
fractured around
the
question
of
whether
the
evidence
that
was
presented
was actually
viable.1"'
The
majority fractured
as
to
whether
the evidence
was sufficient
to
support
a
finding
of
discriminatory
intent.1
14
A
unified
dissent
of
the
Fifth Circuit demanded that
evidence
be
108.
McCrory,
831
F.3d
204,
214
(4th
Cir.
2016).
109.
364
U.S.
339
(1960).
110.
830 F.3d
216
(5th
Cir. 2016).
111.
Id.
112.
Id
at
225
n.1.
113.
Id.
114.
Id.
2017]
533
SOUTH
CAROLINA
LAW
REVIEW
more
in
depth
in
regards
to the Texas
voter
ID
litigation." 5 The
various
dissents demanded
that
there effectively
be
proof
of
some sort
of
agreement
or
motivation that ranged towards
what would
be
tantamount
to
a
conspiracy
geared towards disenfranchising
African
American
and
Latino voters
in
Texas."
6
The
Fourth Circuit's opinion
does
not
suffer
from
such
similar
coherence
concerns
regarding
evidentiary
standards.
More
telling
is
a
comparison
of
the
two
premises
of
the opinion.
Obviously,
the
Fourth
Circuit
began
from the
concept
that
race and
voting
were
inextricably linked
and
that
this
inextricable
linked-ness defined
how
to
view
the issues,
where
the
Fifth
Circuit,
in contrast,
did not
agree
on
this
beginning
premise.
Indeed,
some
judges
took
this
as
a
beginning
but
the
dissent
vociferously
argued
that
the
danger
of
accusing
government
entities
of
acting
on
the
basis
of
race
in violation
of
the
constitution
was
highly
dangerous
and
violated
democratic norms."
7
This type
of
analysis
would
eviscerate
the
ability
for
courts to mediate
claims
regarding
race,
which
in
and
of
itself
would
be
quite
problematic.
Thus the
Fifth
Circuit's precedent
would
seem
to
reveal
the
tension
between notions
of
colorblind
jurisprudence
and
notions
of
carrying
out the
Fifteenth Amendment's command
to
prevent
discrimination
on
the
basis
of
race.
It is
difficult
(or
impossible)
to
analyze
discrimination
on
the
basis
of
race
if
such claims
are
so
dangerous that
they
should
not
be
made
lightly
and
if
moreover that
such
claims
ought
to
and can
only
be
brought
if
there
is
open
and
outright
proof
of
a
conspiracy
to
discriminate
on
the
basis
of
race.
The
problem
then
with
the
dissenting Fifth Circuit opinions
is
that
it
raises
the
standard too
high
for
bringing
such
claims. In
contrast, the
Fourth
Circuit's
opinion
on
the
exact
same
type
of
issue
and
its
beginning premise
would
seem
to
be
in
line
with
where
current
reality
(and
the
law)
regarding
race
and
democracy
is.
For
example,
the Supreme
Court
had
recently
in
Alabama Legislative Black
Caucus
v.
Alabama"
8
reiterated
that
the
Shaw
v.
Reno1
9
line
of
cases
that
subject heightened scrutiny
to changes
regarding
electoral
districts
made
solely
on
the
basis
of
race was
still
a
viable
line
of
115.
Id.
at
280.
116.
Id.
at
281
(Jones,
J.
dissenting)
(by
allowing
the
discriminatory intent
claim
to
go
forward, "the
majority
fans
the flames
of
perniciously
irresponsible
racial
name-calling");
Id.
at
325
(Clement,
J.,
dissenting)
("The
plurality
also overlooks
the
total absence
of
direct
evidence
of
a
discriminatory
purpose
and the
effect
of
plaintiffs'
failure
to
unearth
such
evidence-despite
repeated
assertions that
such
evidence
exists.").
117.
See
text
accompanying
n.
116.
118.
135
S.
Ct.
1257
(2015).
119.
509
U.S.
630
(1993).
534
[VOL.
68:
517
THE
INEXTRICABLE
PROBLEM
OF
RACE
IN
POLITICS
precedent.120
This
would
suggest
that
the
heightened scrutiny
where
race
is
effected
is
still
viable.
Moreover, against
this
context,
Section
2
of
the
Voting
Rights
Act
and
its
underlying
doctrine
would
also
seem
to
be
in
effect-at
least
until
the
next iteration
of
the
Roberts Court
considers
these
issues.
V.
CONCLUSION
Given
all
of
these principles,
then,
the
Fourth
Circuit's
decision
in
McCrory
is
in
line
with
the
ultimate
intent
of
Voting
Rights
Act
jurisprudence.
It is
fair
to
say,
however,
that
there
are
those
parties who
think that
even
this
jurisprudence
is
out
of
line and
does
more
damage to the
law
than
good
for
the
law.
As
I
have
discussed
above,
commentators
have
critiqued
the
entire
enterprise
of
using
race conscious remedies
in
order
to
effect
change in
regard
of
the
law
of
politics.
Certainly
a
number
of
voices
on
the
Court
who
have
until this
point
been in
the
minority
have
sought
to limit
voting rights
jurisprudence
to open
an
outright
denials
of
the
right
to
vote and
not
to claims
which,
by
their
disparate
impact,
would
serve
to
abridge the
right
to
vote
or
premise
denials
based
on
disparate
impact.121
Others
have
argued that
in
light
of
Crawford
v.
120.
Alabama
Legislative Black
Caucus,
135
S.
Ct.
at
1260.
121.
This
is
to
say
that
a
majority
of
the
Court
has
consistently
ruled
to
constrain
the
scope
of
congressional
authority
under
the
Voting
Rights
Act,
but
at
least
two
justices
have
openly argued
in the
recent
past
that
such
constraint
does
not
go
far
enough.
This
is
clearly
illustrated
in
Shelby
County.
Chief
Justice
Roberts,
in
striking down
Section
4(b)
of
the
Act,
premised
this
action
on
the
view that
congressional
action
regarding
the
coverage formula
had
failed
to
calibrate
the coverage
of
Section
5
for current
needs
for
voting rights
enforcement,
thus
refuting
Congress's judgment
that
the
full scope
of
Section
5
was
necessary.
See
Shelby
County
v.
Holder,
133
S.
Ct.
2612,
2631 (2013)
("Congress
could have
updated
the
coverage
formula
[in
2009],
but
did
not
do
so.
Its
failure
to
act
leaves
us
today
with
no
choice
but
to
declare
[Section] 4(b)
unconstitutional.").
This
minimalist position
in
and
of
itself
disrupted
Congress's
power
in
legislating
around voting
rights
as
described
above
in
this
Article.
However,
in
concurring
with
this
judgment,
Justice
Thomas
offered
a
broader rejection
of
the
Voting Rights
Act.
He
argued that
by
merely limiting
this finding
to
the
constitutionality
of
the
coverage
formula,
the
Court
had
avoided
ruling
on
what
he
views
as the
need
to
find Section
5
unconstitutional.
See
id.
at 2631
(Thomas,
J.
concurring).
See
also
Northwest
Austin
Municipal
Dist.
No.
1
v.
Holder,
557
U.S. 193,
212
(2009)
(Thomas,
J.,
concurring).
Moreover,
Justice
Thomas's
longstanding
view
that
the
Voting Rights
Act
as
currently
interpreted
is
unconstitutional
reaches
beyond
the
scope
of
Section
2.
See,
e.g., Holder
v.
Hall,
512
U.S.
874,
891
(1994)
(Thomas,
J.,
concurring)
(joined
by
Scalia,
J.).
As
I
argue
below,
it
is
foreseeable that
this
view could receive
a
majority
of
votes
from
the
Court.
Compare
this
with
the
view
of
Justice
Ginsberg
(joined
by
Justices
Souter, Kagan,
and
Sotomayor)
that
heightened voting rights regulation
by the
federal
government
is
needed
to
thwart
state-level
efforts
at
voter
suppression.
See
Shelby
County,
133
S.
Ct.
at
2633
(Ginsburg,
J.,
dissenting).
Moreover,
she
argued that
this
was
well
within
the
authority granted
2017]
535
SOUTH
CAROLINA
LAW
REVIEW
Marion
County,122
that
provisions regarding heightened regulations
ought to
be
subject
to the
equivalent
of
purely
rational
basis
treatment, and because
of
that
use
of
regulations
like
the
Voting
Rights
Act
tend
to
stymie
the
ability
for
protecting
election
integrity.123
This
view-that
election
integrity
is
endangered
by
race-conscious
rules-is
specious.
It is as
specious
as
the existence
of
evidence
of
dangers
to
election
integrity based
on
non-existent
voter
fraud.
They
serve
to
misdirect
our
concern
from
actual
threats
to
election integrity
including
problems
of
voter
registration, problems
with
election administration
regulation
and
the
problems
that
come
from
interference
by
parties
outside
of
the
American
political
community.
But
as
this
Article
has
acknowledged,
the
former concern
about
the underlying
policy
regarding
race conscious
election
law
remedies
is
currently
an
open
question
that
awaits
a
ninth
Justice
to
resolve
it
for
the
foreseeable
future.
Indeed, the
decision
in
McCrory,
in
and
of
itself,
is
a
product
of
the
tied
Supreme
Court's
inability
to
resolve deeply
divisive
issues
due
to
its
lack
of
a
ninth
Justice.
However,
with
the
election
of
Donald
J.
Trump
as
President
of
the
United
States
and
the
Senate
continuing
to
be
controlled
by
the
Republican
Party,
a
Justice
of
Scalia's
ilk
will
likely
be
appointed
as
the
next
Associate
Justice
of
the
United
States.
This
reconstituted
Roberts Court
may
well
be
disposed
to
being
skeptical
of
the use
of
race
conscious remedies
in
election
law and
thus
McCrory,
if
it
is
appealed
and
argued before
the
Supreme
Court
on
its
merits,
or
similar
cases,
may
end up
being delimited
in
a
way
that would tend
to
be more
conservative.
What
is
more
likely
is
that
Veasey
v.
Abbott,
once
it's
resolved
and right for merits
adjudication
by
a
newly
constituted
Supreme Court,
will delimit this
analysis
regarding
intentional
discrimination
in
election
law.
However,
there
is
a
plausible theory
for
a
different approach given that
Justice
Kennedy
and
the liberal
justices
did
agree
in
other
cases
regarding
race conscious remedies
that
the
law
should
be
treated
as
correct in
regards
to
affirmative
action
and
that considerations
for
reversing
such
law
ought
not
to prevail.
Thus,
there
is
the potential
that
the
five
justice
majority
that
coalesced
in
Fisher
too
may very
well
see
that
the
same sort
of
rationale
to
Congress
by the
Fifteenth
Amendment,
and
thus
to
strike
down
Section
4(b),
and thus
nullify
Section
5,
was
beyond
the scope
of
the Court.
Id.
at
2636-39.
122.
553
U.S.
181
(2008).
123.
Justice Scalia
doined
by
Justices
Thomas
and
Alito)
in
Crawford
argued
that under
the
Fourteenth
Amendment, voting
regulations
that
do
not
significantly increase
the
burden
of
voting should be
presumed
to
be constitutional, suggesting
a
rational
basis
level
of
deference
to
such
regulations.
See
id
at
209
(Scalia,
J.
concurring).
536
[VOL.
68:
517
THE
INEXTRICABLE
PROBLEM
OF
RACE
IN
POLITICS
ought to apply in
race
conscious
law
of
democracy
cases.124
Thus, the
only
way
that
a
ruling
like
McCrory
would
continue to stand is
if
the
law
it
is
based
on
is
deemed
well settled and
as
a
modest extension
of
Arlington
Heights
within
the Section
2
context.
It
would then
be up
to
litigators
arguing
this
case
before
the
Court
and
arguing
future cases
like
it
to
find
this
zone
of
settled
law
as
a
means
by
which
to
determine
what
arguments
would
persuade Justice
Kennedy
and
ensure
that
he,
along
with
the liberal
justices,
would uphold
a
decision
in
this
regard.125
The
reality
is
that
short
of
the
Governor
of
North
Carolina
withdrawing
the
case,
the
risk
of
reversal
of
McCrory
remains
high.
This
opinion may
very well
be
remembered
as
the
high
water
mark
of
an
interregnum
created
by
the
deadlock
of
the Supreme
Court
lacking
a
functional
majority.
History
may reveal
that
a
decision
like
McCrory
may
ultimately
be an
aberration
in
the otherwise
conservative
approach that
courts
tend
to take in
imputing
bad
legislative
intent
to
brace conscious
action.
On the
other
hand,
the
decision
may
ultimately
serve
as
a
roadmap
in
terms
of
how
to
find and
combat such
legislative
intent
in
election
law.
At
the
end,
I
remain
an
optimist.
If
the
notion
of
heightened
concern in
regards
to
race
as
informed
by
the
enduring
existence
of
racialized
socioeconomic
disadvantage
as
articulated
in
McCrory
takes
purchase,
it
will
give
legislatures
and
judges
everywhere
that
are
considering electoral
systems
or
other policies that
have
a
racial
component
great pause
in
considering how
to
go
forward
with
those
changes. Such
policymakers will
have
to
balance the political motivations
with
the
concern for
not
running
afoul
of
the
constitution
in
regards
to
its
race conscious
rules regarding
election
law.
In
an
increasingly
diversifying America
where
today's
majority
will
not
last
for
longer
than this
generation,
the
need
for
attention
to
this
concern is
becoming
more
and
more
necessary.
124.
See
Fisher
v.
University
of
Texas,
136
S.
Ct.
2198
(2016),
where
a
five-justice
majority
in
an
opinion
authored
by
Justice
Anthony Kennedy and
joined
by
the
liberal
justices
upheld race-conscious
affirmative
action
policies
in
higher education
against
Fourteenth
Amendment
challenge.
125.
Cf
Fuentes-Rohwer,
supra
note
98
(arguing that
the
ultimate course
of
Section
2
jurisprudence
will
rely
on
shaping arguments that
would
appeal
to
Justice
Kennedy
as
the
"swing"
justice
of
the Court).
2017]
537
*