No. 602P04-2
TENTH DISTRICT
SUPREME COURT OF NORTH CAROLINA
***********************************************
WILLIAM JAMES, an elector, for
himself and others similarly
situated; WILLIAM “BILL”
FLETCHER, candidate for
Superintendent of Public
Instruction; and TRUDY WADE,
Candidate for Guilford County
Commissioner at large,
Plaintiffs,
v.
GARY O. BARTLETT, as Executive
Director of the North Carolina
State Board of Elections; LARRY
LEAKE, ROBERT CORDLE, GENEVIEVE
C. SIMS, LORRAINE G. SHINN, and
CHARLES WINFREE, in their
Official capacity as members of
the State Board of Elections;
the STATE BOARD OF ELECTIONS;
and ROY COOPER, in his official
capacity as Attorney General of
the State of North Carolina;
Defendants,
and
JUNE S. ATKINSON and W. BRITT
COBB;
Intervenors-Defendants.
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From Wake County
Nos. 04-CV-016823
04-CV-016850
04-CV-015863
***********************************************
BRIEF OF AMICI CURIAE
IN SUPPORT OF DEFENDANTS
***********************************************
- ii -
INDEX
TABLE OF CASES AND AUTHORITIES............................... iii
QUESTION PRESENTED............................................. 2
STATEMENT OF THE CASE.......................................... 2
STATEMENT OF FACTS............................................. 2
A. Provisional Ballot Requirements in North Carolina......... 2
B. Provisional Ballots Cast Out of Precinct in the November
2004 election. ............................................... 7
INTERESTS OF AMICI............................................. 8
ARGUMENT...................................................... 11
I. NORTH CAROLINA’S PROVISIONAL BALLOT LAW IS
CONSTITUTIONAL. ............................................. 12
II. INVALIDATING THE VOTES OF REGISTERED VOTERS WHO CAST A
PROVISIONAL BALLOT OUT OF PRECINCT IN THE NOVEMBER 2004
ELECTION WOULD VIOLATE SECTION 2 OF THE VOTING RIGHTS ACT. .. 20
III.
A DECLARATORY JUDGMENT OR COURT ORDER INVALIDATING
PROVISIONAL BALLOTS CAST OUT OF PRECINCT IS SUBJECT TO THE
RETROGRESSION STANDARD OF SECTION 5 OF THE VOTING RIGHTS ACT. 25
CONCLUSION.................................................... 27
CERTIFICATE OF SERVICE........................................ 28
APPENDIX
- iii TABLE OF CASES AND AUTHORITIES
CASES
Beer v. United States, 425 U.S. 130 (1976).................... 26
Bush v. Vera, 517 U.S. 952 (1996)............................. 22
Electric Service v. City of Rocky Mount, 20 N.C. App. 347, 201
S.E.2d 508, aff'd, 285 N.C. 135, 203 S.E.2d 838 (1974). ..... 15
Gingles v. Edmisten, 590 F. Supp. 345 E.D.N.C. 1984).......... 23
Hathorn v. Lovorn, 457 U.S. 255 (1982)........................ 26
LULAC of Texas v. Texas, 995 F. Supp. 719 (W.D. Tex. 1998).... 26
Martin v. N.C. Housing Corp., 277 N.C. 29, 175 S.E.2d 665
(1970). ..................................................... 17
Mississippi State Chapter, Operation Push v. Allain, 674 F.
Supp. 1245 (N.D. Miss. 1987). ............................... 21
Morse v. Republican Party of Virginia, 517 U.S. 186 (1996).... 21
Sandusky County Democratic Party v. Blackwell, 387 F.3d 565 (6th
Cir. 2004). ............................................... 3, 6
Shaw v. Hunt, 861 F. Supp. 408 (E.D.N.C. 1994)................ 24
Stephenson v. Bartlett, 355 N.C. 354; 562 S.E.2d 377 (2002)... 22
Stevenson v. City of Durham, 281 N.C. 300, 188 S.E.2d 281
(1972). ..................................................... 15
Ward v. Columbus Co., 782 F. Supp. 1097 (1991)................ 24
STATUTES
2003 N.C. Sess. Laws 226, s. 1............................. 7, 16
42 U.S.C. § 15482(a)(2) (2004)................................. 6
42 U.S.C. § 15482(a)(4)(2004).................................. 6
42 U.S.C. § 1973.............................................. 21
42 U.S.C. § 1973 et seq................................... 11, 20
42 U.S.C. § 1973c............................................. 25
42 U.S.C. § 1973gg et seq..................................... 16
- iv 42 U.S.C. §§ 15301-15545 (2004)................................ 4
Alaska Stat. § 15.20.207 (2004)................................ 3
Md. Ann. Code art. EL, § 9-404 (2004).......................... 3
N. C. Gen. Stat. § 163-166.11................................. 16
N.C. Gen. Stat. § 163-165-(6)................................. 16
N.C. Gen. Stat. § 163-166.11
(2003)...................... passim
N.C. Gen. Stat. § 163-166.11(3)............................... 15
N.C. Gen. Stat. §163-166.11(1)................................ 13
Rev. Code Wash. (ARCW) § 29A.08.625 (2004)..................... 3
OTHER AUTHORITIES
148 Cong. Rec. H7837 (daily ed. Oct. 10, 2002)................. 5
148 Cong. Rec. S10489 (daily ed. Oct. 16, 2002)................ 6
Amie Jamieson, et al., U.S. Census Bureau, Current Population
Reports: Voting and Registration in the Election of November
2000 (February 2002) ................................ 5, 17, 23
Caltech/MIT Voting Technology Project, What Is, What Could Be 89
(July 2001) (available at
www.vote.caltech.edu/Reports/2001report.html) ............. 4, 5
Election Reform Information Project, Electionline.org Briefing:
The 2004 Election (Dec. 2004) (available at
www.electionline.org/site/docs/pdf/ .......................... 3
H.R. Rep. 107-329
(2001)...................................... 6
Jennifer Cheeseman Day and Kelly Holder, Current Population
Reports: Voting and Registration in the Election of November
2002 (July 2004). ....................................... 18, 23
League of Women Voters, A Guide to Implementing the New Federal
Provisional Ballot Requirement (Aug. 2003). ....... 2, 9, 14, 19
Special Investigations Div., Comm. On Gov’t Reform, U.S. House
of Representatives, Income and Racial Disparities in the
Undercount in the 2000 Presidential Election (July 9, 2001). 4
TREATISES
12 N.C. Index 3d, Statutes § 4.1 (1978)....................... 17
- v REGULATIONS
28 C.F.R. Part 51, §51.54 (2000).............................. 26
CONSTITUTIONAL PROVISIONS
N.C. Const. art. VI, §2....................................... 11
U.S. Const. art VI, §2........................................ 20
No. 602P04-2
TENTH DISTRICT
SUPREME COURT OF NORTH CAROLINA
***********************************************
WILLIAM JAMES, an elector, for
himself and others similarly
situated; WILLIAM “BILL”
FLETCHER, candidate for
Superintendent of Public
Instruction; and TRUDY WADE,
Candidate for Guilford County
Commissioner at large,
Plaintiffs,
v.
GARY O. BARTLETT, as Executive
Director of the North Carolina
State Board of Elections; LARRY
LEAKE, ROBERT CORDLE, GENEVIEVE
C. SIMS, LORRAINE G. SHINN, and
CHARLES WINFREE, in their
Official capacity as members of
the State Board of Elections;
the STATE BOARD OF ELECTIONS;
and ROY COOPER, in his official
capacity as Attorney General of
the State of North Carolina;
Defendants,
and
JUNE S. ATKINSON and W. BRITT
COBB;
Intervenors-Defendants.
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From Wake County
Nos. 04-CV-016823
04-CV-016850
04-CV-015863
***********************************************
BRIEF OF AMICI CURIAE
IN SUPPORT OF DEFENDANTS
***********************************************
- 2 QUESTION PRESENTED
Do federal and state law require the State to count
the provisional ballots of qualified, registered
voters cast on Election Day for all ballot items that
the voter is eligible to vote on, even if the ballot
is cast outside of the voter’s home precinct?
STATEMENT OF THE CASE
Amici Rodney J. Sumler, Aljihad Shabazz, Democracy
North Carolina, League of Women Voters of North Carolina,
North Carolina Fair Share, Southeastern Church Action for
Safe and Just Communities, and Winston-Salem Voting Rights
Coalition [hereinafter collectively “Amici”], adopt
Defendants’ Statement of the Case, pursuant to Rule 28(f)
of the North Carolina Rules of Appellate Procedure.
STATEMENT OF FACTS
Amici adopt Defendants’ Statement of Facts but bring
to the Court’s attention the following additional facts
relevant to the legal issues addressed herein.
A.
Provisional Ballot Requirements in North
Carolina.
North Carolina is one of approximately seventeen
states whose laws currently require provisional ballots
- 3 cast outside of a voter’s precinct to be counted in whole
or in part.
See Election Reform Information Project,
Electionline.org Briefing: The 2004 Election 5 (Dec. 2004)
(available at www.electionline.org/site/docs/pdf/
ERIP%20Brief9%20Final.pdf.)
Of those seventeen, three
states, Alaska, Maryland and Washington, count provisional
ballots for eligible races even if they are cast in the
wrong county.
See Alaska Stat. § 15.20.207 (2004); Md.
Ann. Code art. EL, § 9-404 (2004); Rev. Code Wash. (ARCW) §
29A.08.625 (2004).
Twenty-seven states and the District of
Columbia count provisional ballots only if cast in the
correct precinct, six states offer election-day
registration, and North Dakota has no voter registration
requirement and is therefore exempt from HAVA’s provisional
voting mandate.
supra, at 5.
Election Reform Information Project,
See also, Sandusky County Democratic Party v.
Blackwell, 387 F.3d 565, 568 n.1 (6th Cir. 2004) (listing
statutes for some of the 27 states counting a voter’s
provisional ballot only if it is cast in the correct
precinct).
These inconsistent state standards for the
counting of provisional ballots evolved after recent state
and federal election law reform efforts.
Problems experienced in the November 2000 presidential
election led Congress to pass the Help America Vote Act of
- 4 2002, [hereinafter “HAVA”], Public Law 107-252, 116 Stat.
1666 (2002), codified at 42 U.S.C. §§ 15301-15545.
Although attention was focused on Florida in that election,
North Carolina also experienced a high level of uncounted
ballots.
According to the findings of a highly regarded
study by the CalTech/MIT Voting Technology Project using
data from state election boards, among forty states
analyzed, North Carolina had the fifth highest percentage
of residual ballots in the November 2000 election, a rate
higher than that of Florida.
Caltech/MIT Voting Technology
Project, What Is, What Could Be 89 (July 2001) (available
at www.vote.caltech.edu/Reports/2001report.html) (“residual
ballots” defined as uncounted, unmarked or mismarked
ballots).
The Committee on Government Reform of the United
States House of Representatives completed a study of income
and racial disparities in voting in forty congressional
districts in 20 states; it found that voters in North
Carolina’s majority-black First Congressional District were
over four times as likely to have their votes undercounted
or discarded as voters in affluent, majority-white
districts.
Special Investigations Div., Comm. On Gov’t
Reform, U.S. House of Representatives, Income and Racial
Disparities in the Undercount in the 2000 Presidential
Election 6 (July 9, 2001).
- 5 Votes were also lost in the 2000 election because of
problems with the voter registration process and problems
with polling place operations.
Caltech/MIT Voting
Technology Project, supra, at 8-9; see also Amie Jamieson,
et al., U.S. Census Bureau, Current Population Reports:
Voting and Registration in the Election of November 2000 10
& Fig. 8, (February 2002) (reporting reasons given by
registered voters for not voting).
Caltech/MIT researchers
found that 1.5 to 3 million votes nationwide were lost due
to registration problems, while up to one million votes
were lost because of polling place errors.
Id., at 9.
One of HAVA’s central promises in response to these
problems is its “fail-safe” voting provision.
As of the
first primary election in 2004, no registered voter could
be turned away from the polls because his or her name was
mistakenly omitted from the voter roll.
The provisional
ballots were to be counted once elections officials
determined that they were cast by eligible voters.
See,
e.g., 148 Cong. Rec. H7837 (daily ed. Oct. 10, 2002
(statement of Rep. Bob Ney (R-OH.)) (“Voting citizens in
this country will have the right to a provisional ballot,
so no voter will be turned away from a polling place, no
voter will be disenfranchised, just because their name does
not appear on a registration list.”); 148 Cong. Rec. S10489
- 6 (daily ed. Oct. 16, 2002 (statement of Sen. Christopher
Bond (R-MO)) (HAVA would ensure that “no voter will be
turned away from the polls because of a mistake or
oversight at the administrative level”); Sandusky County
Democratic Party, 387 F.3d at 569 (“HAVA was passed in
order to alleviate ‘a significant problem voters
experience[, which] is to arrive at the polling place
believing that they are eligible to vote, and then to be
turned away because the election workers cannot find their
names on the list of qualified voters.’ H.R. Rep. 107-329
at 38 (2001). HAVA dealt with this problem by creating a
system for provisional balloting.”)
Section 302(a) of HAVA requires every State to
implement a system of provisional balloting.
HAVA mandates
that voters be given provisional ballots if they are
registered to vote in the jurisdiction and eligible to vote
in an election for federal office.
(2004).
42 U.S.C. § 15482(a)(2)
The statute further mandates that State election
officials count those provisional ballots if “the
individual is eligible under State law to vote.”
42 U.S.C.
§ 15482(a)(4)(2004).
The North Carolina General Assembly responded in 2003
by passing legislation designed to “ensure that the State
of North Carolina has a system for all North Carolina
- 7 Elections that complies with the requirements for federal
elections set forth in the federal Help America Vote Act of
2002.”
2003 N.C. Sess. Laws 226, s. 1 (citation omitted).
Contrary to Plaintiffs’ assertion, the new statute
governing provisional ballots, N.C. Gen. Stat. § 163166.11, provides that out-of-precinct provisional ballots
cast on Election Day should be counted to the extent that
the voter is eligible to vote for the items on that ballot.
The very recent history of high rates of uncounted ballots
in North Carolina, and the disproportionate numbers of
minority voters affected, provide a strong basis for the
General Assembly’s decision to enact a fail-safe
provisional ballot law that would help guarantee the
franchise to all registered voters.
B.
Provisional Ballots Cast Out of Precinct in the
November 2004 election.
Amicus Democracy North Carolina has conducted a preliminary
analysis of publicly available data from state and local
election boards for the November 2, 2004 election.
The data
indicate that a disproportionate number of provisional ballots
cast out of precinct were cast by African-American voters. Among
96 counties excluding Forsyth, Guilford, Wake, and Mecklenburg,
data is available for 90% of the 6,504 total out-of-precinct
provisional ballots cast. Of these, 64.8% of votes were cast by
- 8 white voters; 28.7% were cast by black voters, and 6.6% were
cast by other races.
In contrast, of voters who voted in those
counties in the November 2004 election, 80.7% were white, 16.8%
were black, and 2.5% were other races.
Minorities cast a
substantially larger proportion of provisional out of precinct
votes than their percentage of the electorate.
In Mecklenburg County, data is available for 100% of the
1,777 provisional votes cast out of precinct. Of these voters,
48.1% were white, 46.9% were black, and 5.1% were other.
Of all
voters who voted in this election in Mecklenburg County, 69.4%
were white, 27.8% were black, and 3.8% were other.
Wake County has data available on 90% of the 2,120 out of
precinct provisional ballots cast. Of these, 53.9% of voters
were white, 40.8% were black, and 5.3% were other races.
Overall, Wake County voters who voted in this election were
78.2% white, 17.5% black, and 4.3% other races.
The percentage
of black out of precinct provisional votes in Wake County was
more than twice as high as the percentage of black votes cast in
the entire county.
Graphs illustrating this data, prepared by
counsel for Amici, are attached in the Appendix hereto.
INTERESTS OF AMICI
Amici are two individual African-American voters who cast
out of precinct provisional ballots on November 2, 2004 and five
- 9 non-partisan organizations concerned with guaranteeing that all
qualified registered voters are able to vote and have their
votes counted.
Rodney J. Sumler and Adjihad Shabazz both served
as precinct election officials in Winston-Salem, Forsyth County
on November 2, 2004.
However, they were not working at the
polling place for their home precincts.
In order to fulfill
their responsibilities as precinct officials and not forfeit
their right to vote, they cast provisional ballots in the
precinct where they were working.
They both understood from
their training as precinct officials and from information
provided to them by the Forsyth County Board of Elections that
their provisional ballots would count for all ballot items for
which they were eligible to vote even though their ballots were
cast outside of their assigned precincts.
want to see their votes invalidated.
These voters do not
It would be particularly
unjust to throw out their votes retroactively, without giving
them notice before the election or on Election Day that they
must vote in the polling place for their assigned precinct in
order for their votes to be counted.
Sumler and Shabazz also
have an interest in ensuring that the system of counting
provisional ballots does not disproportionately disenfranchise
black voters in North Carolina.
Democracy North Carolina, the League of Women Voters of
North Carolina, North Carolina Fair Share, Southeastern Church
- 10 Action for Safe and Just Communities and Winston-Salem Voting
Rights Coalition are non-partisan organizations with three
distinct and compelling interests in this case.
First, each
organization’s mission and purpose includes expanding democracy
by encouraging participation in the political process by
traditionally underrepresented minority and poor voters.
Thus,
they want to see the state’s law on provisional balloting upheld
so that voters who voted out of precinct in the past election
and those who may need to do so in future elections are able to
have their ballots counted to the extent possible.
Second, each of these organizations engaged in voter
education activities prior to the November 2, 2004 general
election.
They advised voters that it is preferable to locate
and vote in the correct precinct for the voter’s current address
because the vote will count for all items on the ballot.
However, they also informed voters that according to state law,
if circumstances do not permit this, it is still possible to
vote a provisional ballot in a different precinct in the county
and that vote will count for all ballot items for which the
voter is eligible to vote.
Voters relied on this advice and
exercised their right to vote provisional ballots out of their
assigned precinct for a variety of reasons.
The organizations’
credibility and reliability as a source of information about
- 11 voter’s rights and the voting process will be impaired if those
votes are not counted in the November 2004 election.
Third, each organization is committed to the fundamental
principle of equal protection of the laws and to rigorous
enforcement of the Voting Rights Act, 42 U.S.C. § 1973 et seq.
It is clear that invalidating provisional ballots cast out of
precinct in the November 2004 election will disproportionately
invalidate the votes of black voters.
Amici want to ensure that
all voters have an equal opportunity to participate in the
political process, including an equal opportunity to cast a vote
and have that vote counted.
ARGUMENT
Federal and state law require the state to count out
of precinct provisional ballots cast by qualified voters in
the November 2004 election and any such ballots cast in
future elections.
The residency requirement contained in
Article VI, Section 2 of the North Carolina constitution is
consistent with the state’s provisional voting requirements
as set out in N.C. Gen. Stat. § 163-166.11.
Const. art. VI, §2.
See N.C.
Invalidating those ballots, or failing
to count them in future elections would, moreover, be
contrary to the non-discrimination requirements of Sections
2 and 5 of the federal Voting Rights Act.
- 12 I.
NORTH CAROLINA’S PROVISIONAL BALLOT LAW IS
CONSTITUTIONAL.
North Carolina’s current rules governing the
administration of provisional ballots on Election Day were
established by the North Carolina General Assembly in N.C.
Gen. Stat. § 163-166.11.
The plain language of this
section demonstrates the intent to create a fail-safe
voting procedure for voters who are in the correct precinct
but whose names do not appear on the official list of
eligible registered voters in that precinct, as well as for
voters who are in the wrong precinct but who are registered
to vote in the county.
First, the statute distinguishes
between “jurisdiction” and “voting place”, a distinction
that makes no sense if voters can only be qualified to vote
if physically present at the correct polling place for
their precinct.
The first sentence states:
“If an
individual seeking to vote claims to be a registered voter
in a jurisdiction and though eligible to vote in the
election does not appear on the official list of eligible
registered voters in the voting place, that individual may
cast a provisional ballot as follows:”
163-166.11 (emphasis added).
N.C. Gen. Stat. §
This section of the statute
does not limit its application to voters who claim to be
registered in a particular precinct.
Subsection (2) of the
- 13 statute likewise contains the distinction between
“jurisdiction” and “voting place”.
166.11(2).
N.C. Gen. Stat. § 163-
In both of these sections, the General Assembly
surely would have used the term “precinct” in place of both
“jurisdiction” and “voting place” if it intended to limit
valid provisional ballots to those cast at the correct
polling place.
Most significantly, the concept of counting a ballot
“in part”, which is expressly provided for in subsections
(3) and (5), makes no sense unless out of precinct ballots
are counted.
A registered voter would always be eligible
to vote for all ballot items if she were registered to vote
and were voting at the correct polling place for her
residence.
It is only those voters who receive a ballot at
an out of precinct polling place who may receive a ballot
style that includes offices or items for which they are not
eligible to vote by virtue of their residence.
Finally, the statute’s notification requirement in
Section (1) is incomplete at best and misleading at worst
if out of precinct provisional ballots cannot be counted.
The statute provides that:
“(1) An election official at
the voting place shall notify the individual that the
individual may cast a provisional official ballot in that
election.”
N.C. Gen. Stat. §163-166.11(1).
The statute
- 14 does not direct election officials to inform the voter that
he or she can vote a provisional ballot only in the polling
place for their assigned precinct, nor does it suggest or
require polling place officials to have the means to
determine the voter’s correct precinct.1
The Department of Justice’s preclearance under Section
5 of the Voting Rights Act of Florida’s provisional ballot
measure, which requires that provisional ballots be cast in
a voter’s assigned polling place in order to be counted,
was expressly conditioned on the requirement that poll
workers be able to direct voters to their correct precinct.
League of Women Voters, A Guide to Implementing the New
Federal Provisional Ballot Requirement 4 (Aug. 2003). The
North Carolina statute would require election officials to
mislead voters if it were misread to limit the right to
cast a fail-safe provisional ballot only to those voters
who were already in the correct precinct.
Providing such
vague and unclear information regarding provisional ballots
is certainly contrary to the spirit of subsection (3) of
the law which mandates that extensive and detailed
1
The League of Women Voters advised states in August 2003 that
for states which “require provisional ballots to be cast in the
assigned precinct, poll workers should have access to the entire
official list at the polling place, or, at a minimum, the means
to determine the voter’s assigned precinct.” League of Women
Voters, A Guide to Implementing the New Federal Provisional
Ballot Requirement 4 (Aug. 2003).
- 15 information be provided to voters about how the voter can
determine whether and to what extent their provisional
ballot was counted.
N.C. Gen. Stat. § 163-166.11(3).
The North Carolina legislature intended that out of
precinct provisional ballots cast by registered voters
should be counted for every ballot item for which the voter
is qualified to vote by virtue of his residence.
It is
well established that the intent of the legislature
controls the interpretation of a statute.
State v.
Fulcher, 294 N.C. 503, 243 S.E.2d 338 (1978); State v.
Hart, 287 N.C. 76, 213 S.E.2d 291 (1975).
Moreover, in
ascertaining the intent of the legislature, a court must
consider the language of the statute, the spirit of the act
and what it sought to accomplish, and the effect of
proposed interpretations. Stevenson v. City of Durham, 281
N.C. 300, 188 S.E.2d 281 (1972); Electric Service v. City
of Rocky Mount, 20 N.C. App. 347, 201 S.E.2d 508, aff'd,
285 N.C. 135, 203 S.E.2d 838 (1974).
Here, each of those
three factors demonstrates that the intent of the General
Assembly in enacting N.C. Gen. Stat. § 163-166.11 in 2003
was to change the requirements for provisional ballots so
that out of precinct ballots cast by registered voters
- 16 would be counted.2
See 2003 N.C. Sess. Laws 226.
Since the
legislature intended county boards of election to count
provisional ballots cast by registered voters out of
precinct, this Court cannot invalidate those votes unless
N. C. Gen. Stat. § 163-166.11 is unconstitutional.
However, the statutory scheme is consistent with the
residency requirements set out in Article VI, Section 2 of
the Constitution.
The residency requirement is given
effect by only counting the ballot items for which the
voter is eligible to vote, the Constitution does not
require the voter to be physically present at the precinct
in order to be qualified to vote.
If it did, early voting,
absentee voting and voting by overseas voters would all
violate Article VI, Section 2 of the Constitution as well.
Plaintiffs offer a strained and illogical interpretation of
the Constitution in order to suggest that the state law
regarding provisional ballots is unconstitutional.
Plaintiffs simply cannot overcome this Court’s wellestablished principle that all statutes are presumed to be
2
Provisional ballots were first used in North Carolina following
passage of the National Voter Registration Act of 1993, 42
U.S.C. § 1973gg et seq. Since North Carolina law had previously
specified the definition of a “provisional official ballot”, see
N.C. Gen. Stat. § 163-165-(6) (effective Jan. 1, 2002), the
legislature would not have needed to enact any additional laws
in 2003 if it intended only to maintain the practice of counting
provisional ballots cast in the correct polling place for the
voter’s residence.
- 17 constitutional, and every presumption is to be indulged in
favor of validity.
Martin v. N.C. Housing Corp., 277 N.C.
29, 175 S.E.2d 665 (1970). The burden of showing a
statute's unconstitutionality is on the person who attacks
it. 12 N.C. Index 3d, Statutes § 4.1 (1978).
Here, the
Plaintiffs have not met that burden.
Beyond the evidence of statutory intent drawn from the
language of the statute and its underlying objectives,
Amici urge this Court to recognize that it is a better
practice to allow duly registered voters to cast a ballot
out of precinct if necessary.
Plaintiffs disparage the
practice, asserting that most such voters do so merely for
their personal convenience.
without any factual support.
Yet that assertion is made
Amici are aware of anecdotal
and other evidence to support the proposition that many
voters vote out of precinct from necessity or due to
exigencies beyond their control.
Nationwide evidence
documents conflicting work or school schedules,
transportation problems, and illnesses or emergencies as
among the top reasons some voters did not vote in 2000 and
2002.
See Amie Jamieson, et al., U.S. Census Bureau,
Current Population Reports: Voting and Registration in the
Election of November 2000 10 & Fig. 8 (Feb. 2002); Jennifer
Cheeseman Day and Kelly Holder, Current Population Reports:
- 18 Voting and Registration in the Election of November 2002 14
& Fig. 10 (July 2004).
The individual amici here, Mr. Sumler and Mr. Shabazz,
both had conflicting day-long responsibilities to serve as
precinct judges in other precincts that prevented them from
attending their own precinct in person on Election Day.
They did not have to forfeit their right to vote because
North Carolina’s fail-safe provisional voting requirements
justifiably afforded them the ability to cast a provisional
ballot out of precinct that was partially counted for all
elections for which they were eligible to vote.
Voters who try to vote in person and mistakenly go to
the wrong precinct late in the day because of emergencies,
transportation problems or work schedules may not, if
turned away without a provisional ballot, have sufficient
time to locate and travel to the correct precinct before
the polls close.
There is little risk that voting out of
precinct would become a routine practice under current law
since such a voting experience is less desirable; the voter
likely receives a ballot that does not contain all of the
offices for which they are eligible to vote.
The out of
precinct voter may not be able to vote for a variety of
local offices, for state legislative offices, or even for
congressional candidates because the election districts for
- 19 all of these offices cross county lines in some parts of
the state.
However, casting a provisional ballot that is
partially counted is vastly preferable to having no
opportunity whatsoever to vote.
Several amici participated in an Election Day project
on November 2, 2004 by having volunteers at selected
polling places to inform voters of their rights and by
referring voters to a toll-free hotline.
Volunteers at
polling places reported that confusion about where to vote
was one of the major problems experienced by North Carolina
voters on Election Day.
Similarly, of the hundreds of
calls received at their statewide hotline on Election Day,
a large number were from voters seeking information about
the location of their polling place.
In some instances,
callers reported being unable to reach their local board of
elections because of jammed phone lines, and they could not
determine their correct polling place.
As the League of
Women Voter’s explained:
Sometimes voters show up at a polling place other than
the one to which they are assigned. Furthermore, once
they figure out the proper polling place, there isn’t
always time for the voter to get there. Sometimes
this is the voter’s error; sometimes it is the
election official’s or the poll worker’s error. In
one state, some voters found themselves shuffled to as
many as five different polling places before finding
their way to the right one.
League of Women Voters, supra p. __ at 4.
- 20 The common sense practice of allowing such voters to
cast a provisional ballot outside of their precinct “not
only protects the voter, it also protects election
officials from voter anger and frustration created by
inefficiencies and poor polling place operations”
Id.
Thus, there are strong reasons supporting the General
Assembly’s decision to implement HAVA’s provisional ballot
requirements by amending state law and directing counties
to count the ballots of voters who vote out of precinct.
II. INVALIDATING THE VOTES OF REGISTERED VOTERS WHO CAST A
PROVISIONAL BALLOT OUT OF PRECINCT IN THE NOVEMBER 2004
ELECTION WOULD VIOLATE SECTION 2 OF THE VOTING RIGHTS ACT.
Even if the North Carolina constitution did explicitly
require voters to be physically present in their own
precinct on Election Day in order to be qualified to vote,
the state constitution is subject, under the Supremacy
Clause, U.S. Const. art VI, §2, to the statutory provisions
imposed by Congress on the States for the administration of
elections, including the Voting Rights Act of 1965, 42
U.S.C. § 1973 et seq.
The data that amici have managed to
obtain from the state and local boards of election, if
accurate, show that black voters disproportionately voted
provisional ballots out of precinct in the November 2004
election.
Failing to count those ballots under the
- 21 totality of circumstances would be a voting practice that
denied black voters an equal opportunity to participate in
the political process and would therefore violate Section 2
of the Voting Rights Act.
Section 2 of the Voting Rights Act of 1965 prohibits
voting practices or procedures that discriminate on the
basis of race, color, or membership in one of the language
minority groups identified in Section 4(f)(2) of the Act.
42 U.S.C. § 1973. Most cases arising under Section 2 since
its enactment have involved challenges to at-large election
systems or redistricting plans, but the prohibition against
discrimination in voting applies nationwide to any voting
standard, practice, or procedure that results in the denial
or abridgement of the right of any citizen to vote on
account of race, color, or membership in a language
minority group. See, e.g., Morse v. Republican Party of
Virginia, 517 U.S. 186 (1996) (holding that the act extends
to exclusion of protected groups from a nominating
convention), Mississippi State Chapter, Operation Push v.
Allain, 674 F. Supp. 1245 (N.D. Miss. 1987), aff’d sub nom.
Mississippi State Chapter, Operation Push v. Mabus, 932
F.2d 400 (5th Cir. 1991) (applying Section 2 to various
election procedures such as designating deputy county
registrars and establishing satellite registration).
- 22 In 1982, Congress examined the history of litigation under
Section 2 since 1965 and concluded that Section 2 should be
broadened to provide that a plaintiff could establish a
violation of the section if the evidence established that, in
the context of the "totality of the circumstance of the local
electoral process," the standard, practice, or procedure under
challenge had the result of denying a racial or language
minority an equal opportunity to participate in the political
process.
Proof of intentional discrimination is no longer
required to demonstrate a violation of Section 2’s “results”
test.
Bush v. Vera, 517 U.S. 952, 976 (1996) (O’Connor, J.).
State Constitutional and statutory provisions regarding voting
and elections must be enforced consistently with the federal
Voting Rights Act.
Stephenson v. Bartlett, 355 N.C. 354; 562
S.E.2d 377 (2002).
Black voters throughout North Carolina voted a
disproportionate percentage of the provisional ballots cast out
of precinct on November 2, 2004.
See supra at
.
This result
is not surprising; national census data indicating that the
reasons why voters have difficulties getting to a polling place
on Election Day bear more heavily on black voters.
For example,
in the 2000 and 2002 general elections, blacks were more likely
than white non-Hispanics or Hispanics to have transportation
- 23 problems.
Amie Jamieson, et al., supra, at 10; Jennifer
Cheeseman Day and Kelly Holder, supra, at 12.
Invalidating the
votes of out of precinct voters in the November 2004 general
election would disproportionately disenfranchise black voters.
North Carolina has a long history of using constitutional
and statutory devices to disenfranchise black voters.
The
district court found in Gingles v. Edmisten, 590 F. Supp. 345,
359 (E.D.N.C. 1984), that:
Following the emancipation of blacks from slavery and
the period of post-war Reconstruction, the State of
North Carolina had officially and effectively
discriminated against black citizens in matters
touching their exercise of the voting franchise for a
period of around seventy years, roughly two
generations, from ca. 1900 to ca. 1970.
The District Court in Gingles went on to catalogue all of the
various statutory schemes, in addition to literacy tests and
poll taxes, such as anti-single shot laws and numbered seat
requirements, that were employed in North Carolina to
discriminate against black voters until they were declared
unconstitutional in the early 1970’s.
Id.,590 F. Supp. at 359-
61.
The Gingles Court also made factual findings concerning the
impact of this official discrimination on voter registration and
participation rates by black citizens in the state.
Id.
Similar findings have been made by numerous courts in cases
- 24 brought under the Voting Rights Act in North Carolina since
then.
For example, “[t]he literacy test was used in Columbus
County until 1972, and was not applied in an even-handed
fashion.
Blacks were required to pass a literacy test at times
when whites were not.
Knowledge that passing a literacy test
would be required intimidated many black citizens and, no doubt,
kept many from attempting to register to vote.”
Ward v.
Columbus Co., 782 F. Supp. 1097 (1991).
Racially polarized voting and other factors that make it
more difficult for black voters to participate in elections have
been documented more recently.
See, e.g., Shaw v. Hunt, 861 F.
Supp. 408, 465 (E.D.N.C. 1994), rev’d on other grounds, 517 U.S.
899 (1996).
In Shaw, the District Court found that
there was considerable evidence that, although
African-American electoral candidates' success, or
near success, in both state-wide and local elections
had continued the gradual improvement noted by the
Gingles district court [**171] in 1984, see 590 F.
Supp. 345, 364-65 (E.D.N.C. 1984) (three-judge court),
aff'd in part, rev'd in part on unrelated grounds sub
nom., Thornburg v. Gingles, 478 U.S. 30, 92 L. Ed. 2d
25, 106 S. Ct. 2752 (1986), racial bloc voting still
persisted to a significant degree across the state in
both local and statewide elections, including those
for United States Congress. So also did racial appeals
and tactics in political campaigning.
Id. This evidence is part of the totality of the circumstances
that must be considered in determining whether the failure to
count out of precinct provisional ballots violates Section 2 of
- 25 the Voting Rights Act.
The fact that invalidating those votes
itself would have a disparate impact on black voters, when
conjoined with the continuing effects of past official
discrimination in voting and elections in this state, strongly
indicates that the current law is necessary to comply with
Section 2 of the Voting Rights Act.
III. A
DECLARATORY
JUDGMENT
OR
COURT
ORDER
INVALIDATING
PROVISIONAL BALLOTS CAST OUT OF PRECINCT IS SUBJECT TO THE
RETROGRESSION STANDARD OF SECTION 5 OF THE VOTING RIGHTS ACT.
The U.S. Department of Justice precleared N.C. Gen.
Stat. § 163-166.11 pursuant to Section 5 of the Voting
Rights Act, 42 U.S.C. § 1973c.
See letter dated October
25, 2004 from D. Wright to W. James, attached to the
Complaint in this action.
Any declaratory judgment or
court order that would invalidate that statute or would
provide that a different procedure be followed for the
counting of provisional ballots, whether for the 2004
election or for future elections, also must be precleared
either by the Attorney General of the United States or
though a declaratory judgment action filed in the United
States District Court for the District of Columbia.
Voting changes adopted by a state court of a fully
covered state require preclearance before they can be put
- 26 into effect, as do voting changes adopted by a state court
in a partially covered state if the change is to be
implemented in a covered political subdivision of that
state. See, e.g., Hathorn v. Lovorn, 457 U.S. 255, 265-66
n.16, 270 (1982); LULAC of Texas v. Texas, 995 F. Supp.
719, 724 (W.D. Tex. 1998).
A jurisdiction seeking preclearance must demonstrate
that the proposed change does not have the effect of
denying or abridging the right to vote on account of race
or color.
In making that determination, the guidelines of
the Department of Justice apply the retrogression standard
established by the Supreme Court in Beer v. United States,
425 U.S. 130, 140-42 (1976).
Under that standard, a change
affecting voting has a discriminatory effect “if it will
lead to a retrogression in the position of members of a
racial or language minority group (i.e., will make members
of such a group worse off than they had been before the
change) with respect to their opportunity to exercise the
electoral franchise effectively.”
28 C.F.R. Part 51,
§51.54 (2000).
In this instance that standard cannot be met because
invalidating the votes of qualified voters who cast
provisional ballots out of precinct will have a
discriminatory impact on black voters.
It will cause those
- 27 voters to be worse off than they are now relative to white
voters.
This Court should neither interpret nor seek to
enforce North Carolina laws in such as way as to contravene
federal voting rights guarantees.
CONCLUSION
For all of these reasons, Amici respectfully urge this
Court to uphold the ruling of the court below.
This Court
should hold that the state’s provisional balloting
requirements, contained in N.C. Gen. Stat. § 163-166.11,
require the counting of provisional ballots cast by
registered voters out of their precinct for all ballot
items for which they are qualified to vote and are
consistent with Article VI, Section 2 of the State
Constitution.
This 13th day of January, 2005
_______________________
Anita S. Earls
N.C. Bar No. 15597
UNC Center for Civil Rights
CB # 3380
Van Hecke Wettach Hall
Chapel Hill, N.C. 27599
Tel. No. (919) 843-7896
Fax No. (919) 962-1277
- 28 CERTIFICATE OF SERVICE
THIS IS TO CERTIFY that the undersigned has, this date,
filed a copy of this Brief of Amici Curiae in Support of
Defendants with the Clerk of the North Carolina Supreme Court by
electronic means pursuant to Rule 26 of the North Carolina Rules
of Appellate Procedure and served a copy of same upon all
parties’ counsel in accordance with said rules by electronic
means and by depositing the same in a depository under the
exclusive care and custody of the United States Postal Service,
U.S. Mail, First Class, with adequate postage affixed thereto
and property addressed to:
ADDRESSEES:
Mr. Michael Crowell
Attorney at Law
Tharrington Smith, LLP
P. O. Box 1151
Raleigh, N.C. 27602-1151
Email: [email protected]
Mr. Robert N. Hunter, Jr.
Attorney at Law
Hunter, Higgins, Miles, Elam and Benjamin, PLLC
101 W. Friendly Avenue, Ste. 500
Greensboro, N.C. 27401
Email: [email protected]
Ms. Susan K. Nichols
Attorney at Law
N.C. Department of Justice
Old Education Building
114 W. Edenton Street
Raleigh, N.C. 27602
Email: [email protected]
Mr. John R. Wallace
Mr. Joseph A. Newsome
Wallace, Creech & Sarda, LLP
P. O. Box 12065
Raleigh, N.C. 27605
Email:
[email protected]
- 29 -
Mr. Larry I. Moore, III
Johnson, Younce, Moore & Moseley LLP
Independence Center
400 West Market Street
P.O. Box 3486
Greensboro, North Carolina 27402
Email: [email protected]
This 13th day of January, 2005.
_______________________
Anita S. Earls
APPENDIX
CONTENTS OF APPENDIX
Racial Breakdown of Provisional Ballots Cast Out of
Precinct (96 Counties)............................1
Racial Breakdown of Provisional Ballots Cast Out of
Precinct (Mecklenburg County).....................2
Racial Breakdown of Provisional Ballots Cast Out of
Precinct (Wake County)............................3
-1-
Racial Breakdown of Provisional Ballots Cast Out of Precinct
November 2, 2004
Excludes Forsyth, Guilford, Mecklenburg and Wake
100
90
80.7
80
Percentage
70
64.8
60
Out of Precinct Provisional Ballots
All Ballots
50
40
28.7
30
16.8
20
6.6
10
2.5
0
White
Black
Race
Other
- 2 -
Racial Breakdown of Provisional Ballots Cast Out of Precinct
November 2, 2004
Mecklenburg County
100
90
80
69.4
70
Percentage
60
50
48.1
46.9
Out of Precinct Provisional Ballots
All Ballots
40
27.8
30
20
10
5.1
3.8
0
White
Black
Race
Other
- 3 -
Racial Breakdown of Provisional Ballots Cast Out of Precinct
November 2, 2004
Wake County
100
90
80
70
Percentage
60
Out of Precinct Provisional Ballots
All Ballots
50
40
30
20
10
0
White
Black
Race
Other