                               PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 16-1468


NORTH CAROLINA STATE CONFERENCE OF THE NAACP; ROSANELL
EATON; EMMANUEL BAPTIST CHURCH; BETHEL A. BAPTIST CHURCH;
COVENANT PRESBYTERIAN CHURCH; BARBEE’S CHAPEL MISSIONARY
BAPTIST CHURCH, INC.; ARMENTA EATON; CAROLYN COLEMAN;
JOCELYN FERGUSON-KELLY; FAITH JACKSON; MARY PERRY, MARIA
TERESA UNGER PALMER,

                Plaintiffs - Appellants,

          and

JOHN DOE 1; JANE DOE 1; JOHN DOE 2; JANE DOE 2; JOHN DOE 3;
JANE DOE 3; NEW OXLEY HILL BAPTIST CHURCH; CLINTON
TABERNACLE AME ZION CHURCH; BAHEEYAH MADANY,

                Plaintiffs,

          v.

PATRICK L. MCCRORY, in his official capacity as Governor of
the State of North Carolina; KIM WESTBROOK STRACH, in her
official capacity as a member of the State Board of
Elections; JOSHUA B. HOWARD, in his official capacity as a
member of the State Board of Elections; RHONDA K. AMOROSO,
in her official capacity as a member of the State Board of
Elections; JOSHUA D. MALCOLM, in his official capacity as a
member of the State Board of Elections; PAUL J. FOLEY, in
his official capacity as a member of the State Board of
Elections; MAJA KRICKER, in her official capacity as a
member of the State Board of Elections; JAMES BAKER, in his
official capacity as a member of the North Carolina State
Board of Elections,

                Defendants - Appellees.

----------------------------
CONSTITUTIONAL ACCOUNTABILITY CENTER; STACEY STITT; MARIA
DIAZ; ROBERT GUNDRUM; MISTY TAYLOR; SERVICE EMPLOYEES
INTERNATIONAL UNION; DEMOCRACY NORTH CAROLINA; UNC CENTER
FOR CIVIL RIGHTS; PEARLEIN REVELS; LOUISE MITCHELL; ERIC
LOCKLEAR; ANITA HAMMONDS BLANKS,

                Amici Supporting Appellants,

JUDICIAL WATCH, INCORPORATED; ALLIED EDUCATIONAL FOUNDATION;
THOM TILLIS; LINDSEY GRAHAM; TED CRUZ; MIKE LEE; JUDICIAL
EDUCATION PROJECT; LAWYERS DEMOCRACY FUND; MOUNTAIN STATES
LEGAL FOUNDATION; AMERICAN CIVIL RIGHTS UNION; STATE OF
INDIANA; STATE OF ALABAMA; STATE OF ARIZONA; STATE OF
ARKANSAS; STATE OF GEORGIA; STATE OF KANSAS; STATE OF
MICHIGAN; STATE OF NORTH DAKOTA; STATE OF OHIO; STATE OF
OKLAHOMA; STATE OF SOUTH CAROLINA; STATE OF TEXAS; STATE OF
WEST VIRGINIA; STATE OF WISCONSIN; PACIFIC LEGAL FOUNDATION;
CENTER FOR EQUAL OPPORTUNITY; PROJECT 21,

                Amici Supporting Appellees.



                              No. 16-1469


LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA; NORTH CAROLINA A.
PHILIP RANDOLPH INSTITUTE; UNIFOUR ONESTOP COLLABORATIVE;
COMMON CAUSE NORTH CAROLINA; GOLDIE WELLS; KAY BRANDON;
OCTAVIA RAINEY; SARA STOHLER; HUGH STOHLER,

                Plaintiffs,

CHARLES M. GRAY; ASGOD BARRANTES; MARY-WREN RITCHIE,

                Intervenors/Plaintiffs,

          and

LOUIS M. DUKE; JOSUE E. BERDUO; NANCY J. LUND; BRIAN M.
MILLER; BECKY HURLEY MOCK; LYNNE M. WALTER; EBONY N. WEST,

                Intervenors/Plaintiffs - Appellants,

          v.



                                   2
STATE OF NORTH CAROLINA; JOSHUA B. HOWARD, in his official
capacity as a member of the State Board of Elections; RHONDA
K. AMOROSO, in her official capacity as a member of the
State Board of Elections; JOSHUA D. MALCOLM, in his official
capacity as a member of the State Board of Elections; PAUL
J. FOLEY, in his official capacity as a member of the State
Board of Elections; MAJA KRICKER, in her official capacity
as a member of the State Board of Elections; PATRICK L.
MCCRORY, in his official capacity as Governor of the State
of North Carolina,

               Defendants - Appellees.

----------------------------

CONSTITUTIONAL ACCOUNTABILITY CENTER; STACEY STITT; MARIA
DIAZ; ROBERT GUNDRUM; MISTY TAYLOR; SERVICE EMPLOYEES
INTERNATIONAL UNION; DEMOCRACY NORTH CAROLINA; UNC CENTER
FOR CIVIL RIGHTS; PEARLEIN REVELS; LOUISE MITCHELL; ERIC
LOCKLEAR; ANITA HAMMONDS BLANKS,

               Amici Supporting Appellants,

JUDICIAL WATCH, INCORPORATED; ALLIED EDUCATIONAL FOUNDATION;
THOM TILLIS; LINDSEY GRAHAM; TED CRUZ; MIKE LEE; JUDICIAL
EDUCATION PROJECT; LAWYERS DEMOCRACY FUND; MOUNTAIN STATES
LEGAL FOUNDATION; AMERICAN CIVIL RIGHTS UNION; STATE OF
INDIANA; STATE OF ALABAMA; STATE OF ARIZONA; STATE OF
ARKANSAS; STATE OF GEORGIA; STATE OF KANSAS; STATE OF
MICHIGAN; STATE OF NORTH DAKOTA; STATE OF OHIO; STATE OF
OKLAHOMA; STATE OF SOUTH CAROLINA; STATE OF TEXAS; STATE OF
WEST VIRGINIA; STATE OF WISCONSIN; PACIFIC LEGAL FOUNDATION;
CENTER FOR EQUAL OPPORTUNITY; PROJECT 21,

               Amici Supporting Appellees.



                           No. 16-1474


LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA; NORTH CAROLINA A.
PHILIP RANDOLPH INSTITUTE; UNIFOUR ONESTOP COLLABORATIVE;
COMMON CAUSE NORTH CAROLINA; GOLDIE WELLS; KAY BRANDON;
OCTAVIA RAINEY; SARA STOHLER; HUGH STOHLER,

               Plaintiffs - Appellants,

                                3
          and

LOUIS M. DUKE; CHARLES M. GRAY; ASGOD BARRANTES; JOSUE E.
BERDUO; BRIAN M. MILLER; NANCY J. LUND; BECKY HURLEY MOCK;
MARY-WREN RITCHIE; LYNNE M. WALTER; EBONY N. WEST,

                Intervenors/Plaintiffs,

          v.

STATE OF NORTH CAROLINA; JOSHUA B. HOWARD, in his official
capacity as a member of the State Board of Elections; RHONDA
K. AMOROSO, in her official capacity as a member of the
State Board of Elections; JOSHUA D. MALCOLM, in his official
capacity as a member of the State Board of Elections; PAUL
J. FOLEY, in his official capacity as a member of the State
Board of Elections; MAJA KRICKER, in her official capacity
as a member of the State Board of Elections; PATRICK L.
MCCRORY, in his official capacity as Governor of the State
of North Carolina,

                Defendants - Appellees.

----------------------------

CONSTITUTIONAL ACCOUNTABILITY CENTER; STACEY STITT; MARIA
DIAZ; ROBERT GUNDRUM; MISTY TAYLOR; SERVICE EMPLOYEES
INTERNATIONAL UNION; DEMOCRACY NORTH CAROLINA; UNC CENTER
FOR CIVIL RIGHTS; PEARLEIN REVELS; LOUISE MITCHELL; ERIC
LOCKLEAR; ANITA HAMMONDS BLANKS,

                Amici Supporting Appellants,

JUDICIAL WATCH, INCORPORATED; ALLIED EDUCATIONAL FOUNDATION;
THOM TILLIS; LINDSEY GRAHAM; TED CRUZ; MIKE LEE; JUDICIAL
EDUCATION PROJECT; LAWYERS DEMOCRACY FUND; MOUNTAIN STATES
LEGAL FOUNDATION; AMERICAN CIVIL RIGHTS UNION; STATE OF
INDIANA; STATE OF ALABAMA; STATE OF ARIZONA; STATE OF
ARKANSAS; STATE OF GEORGIA; STATE OF KANSAS; STATE OF
MICHIGAN; STATE OF NORTH DAKOTA; STATE OF OHIO; STATE OF
OKLAHOMA; STATE OF SOUTH CAROLINA; STATE OF TEXAS; STATE OF
WEST VIRGINIA; STATE OF WISCONSIN; PACIFIC LEGAL FOUNDATION;
CENTER FOR EQUAL OPPORTUNITY; PROJECT 21,

                Amici Supporting Appellees.



                                 4
                            No. 16-1529


UNITED STATES OF AMERICA,

                Plaintiff - Appellant,

          v.

STATE OF NORTH CAROLINA; NORTH       CAROLINA   STATE    BOARD   OF
ELECTIONS; KIM WESTBROOK STRACH,

                Defendants - Appellees,

          and

CHRISTINA    KELLEY    GALLEGOS-MERRILL;      JUDICIAL     WATCH,
INCORPORATED,

                Intervenors/Defendants.

----------------------------

CONSTITUTIONAL ACCOUNTABILITY CENTER; STACEY STITT; MARIA
DIAZ; ROBERT GUNDRUM; MISTY TAYLOR; SERVICE EMPLOYEES
INTERNATIONAL UNION; DEMOCRACY NORTH CAROLINA; UNC CENTER
FOR CIVIL RIGHTS; PEARLEIN REVELS; LOUISE MITCHELL; ERIC
LOCKLEAR; ANITA HAMMONDS BLANKS,

                Amici Supporting Appellant,

JUDICIAL WATCH, INCORPORATED; ALLIED EDUCATIONAL FOUNDATION;
THOM TILLIS; LINDSEY GRAHAM; TED CRUZ; MIKE LEE; JUDICIAL
EDUCATION PROJECT; LAWYERS DEMOCRACY FUND; MOUNTAIN STATES
LEGAL FOUNDATION; AMERICAN CIVIL RIGHTS UNION; STATE OF
INDIANA; STATE OF ALABAMA; STATE OF ARIZONA; STATE OF
ARKANSAS; STATE OF GEORGIA; STATE OF KANSAS; STATE OF
MICHIGAN; STATE OF NORTH DAKOTA; STATE OF OHIO; STATE OF
OKLAHOMA; STATE OF SOUTH CAROLINA; STATE OF TEXAS; STATE OF
WEST VIRGINIA; STATE OF WISCONSIN; PACIFIC LEGAL FOUNDATION;
CENTER FOR EQUAL OPPORTUNITY; PROJECT 21,

                Amici Supporting Appellees.



                                 5
Appeals from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge.    (1:13-cv-00658-TDS-JEP; 1:13-cv-00660-TDS-JEP;
1:13-cv-00861-TDS-JEP)


Argued:   June 21, 2016                    Decided:   July 29, 2016


Before MOTZ, WYNN, and FLOYD, Circuit Judges.


Reversed and remanded by published opinion.     Judge Motz wrote
the opinion for the court, in which Judge Wynn and Judge Floyd
joined except as to Part V.B. Judge Wynn wrote the opinion for
the court as to Part V.B., in which Judge Floyd joined.    Judge
Motz wrote a separate dissenting opinion as to Part V.B.


ARGUED: Anna Marks Baldwin, UNITED STATES DEPARTMENT OF JUSTICE,
Washington,   D.C.;    Penda   D.    Hair,   ADVANCEMENT    PROJECT,
Washington, D.C.; Allison Jean Riggs, SOUTHERN COALITION FOR
SOCIAL JUSTICE, Durham, North Carolina, for Appellants.       Thomas
A. Farr, OGLETREE DEAKINS NASH SMOAK & STEWART, PC, Raleigh,
North  Carolina;    Alexander   McClure   Peters,   NORTH   CAROLINA
DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellees.
ON BRIEF: Denise D. Lieberman, Donita Judge, Caitlin Swain,
ADVANCEMENT PROJECT, Washington, D.C.; Irving Joyner, Cary,
North Carolina; Adam Stein, TIN FULTON WALKER & OWEN, PLLC,
Chapel Hill, North Carolina; Daniel T. Donovan, Bridget K.
O’Connor, K. Winn Allen, Michael A. Glick, Ronald K. Anguas,
Jr., Madelyn A. Morris, KIRKLAND & ELLIS LLP, Washington, D.C.,
for Appellants North Carolina State Conference of Branches of
the NAACP, Rosanell Eaton, Emmanuel Baptist Church, Bethel A.
Baptist Church, Covenant Presbyterian Church, Barbee’s Chapel
Missionary Baptist Church, Inc., Armenta Eaton, Carolyn Coleman,
Jocelyn Ferguson-Kelly, Faith Jackson, Mary Perry, and Maria
Teresa Unger Palmer.    Edwin M. Speas, John O’Hale, Caroline P.
Mackie, POYNER SPRUILL LLP, Raleigh, North Carolina; Joshua L.
Kaul, Madison, Wisconsin, Marc E. Elias, Bruce V. Spiva,
Elisabeth C. Frost, Amanda Callais, Washington, D.C., Abha
Khanna, PERKINS COIE LLP, Seattle, Washington, for Appellants
Louis M. Duke, Josue E. Berduo, Nancy J. Lund, Brian M. Miller,
Becky Hurley Mock, Lynne M. Walter, and Ebony N. West. Dale E.
Ho, Julie A. Ebenstein, Sophia Lin Lakin, AMERICAN CIVIL
LIBERTIES   UNION   FOUNDATION,    INC.,   New   York,   New   York;
Christopher Brook, ACLU OF NORTH CAROLINA LEGAL FOUNDATION,

                                 6
Raleigh, North Carolina; Anita S. Earls, George Eppsteiner,
SOUTHERN COALITION FOR SOCIAL JUSTICE, Durham, North Carolina
for Appellants League of Women Voters of North Carolina, North
Carolina   A.   Philip   Randolph   Institute,   Unifour   Onestop
Collaborative, Common Cause North Carolina, Goldie Wells, Kay
Brandon, Octavia Rainey, Sara Stohler, and Hugh Stohler. Ripley
Rand, United States Attorney for the Middle District of North
Carolina, Gill P. Beck, Special Assistant United States Attorney
for the Middle District of North Carolina, Gregory B. Friel,
Deputy   Assistant  Attorney   General,   Justin  Levitt,   Deputy
Assistant Attorney General, Diana K. Flynn, Christine H. Ku,
Civil Rights Division, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellant United States of America.       L.
Gray Geddie, Jr., Phillip J. Strach, Michael D. McKnight,
OGLETREE DEAKINS NASH SMOAK & STEWART, PC, Raleigh, North
Carolina, for Appellees State of North Carolina and North
Carolina State Board of Elections; Karl S. Bowers, Jr., BOWERS
LAW OFFICE LLC, Columbia, South Carolina, Robert C. Stephens,
OFFICE OF THE GOVERNOR OF NORTH CAROLINA, Raleigh, North
Carolina, for Appellee Patrick L. McCrory. Elizabeth B. Wydra,
Brianne J. Gorod, David H. Gans, CONSTITUTIONAL ACCOUNTABILITY
CENTER,    Washington,    D.C.,    for    Amicus    Constitutional
Accountability Center. Claire Prestel, Ryan E. Griffin, JAMES &
HOFFMAN, P.C., Washington, D.C.; Mary Joyce Carlson, Washington,
D.C.; Judith A. Scott, Lauren Bonds, Katherine Roberson-Young,
SERVICE EMPLOYEES INTERNATIONAL UNION, Washington, D.C., for
Amici Stacey Stitt, Maria Diaz, Robert Gundrum, Misty Taylor,
and Service Employees International Union.       Mark R. Sigmon,
SIGMON LAW, PLLC, Raleigh, North Carolina, for Amicus Democracy
North Carolina. Mark Dorosin, Elizabeth Haddix, Brent Ducharme,
UNC CENTER FOR CIVIL RIGHTS, Chapel Hill, North Carolina, for
Amicus UNC Center for Civil Rights. Jeanette Wolfley, Assistant
Professor, UNIVERSITY OF NEW MEXICO SCHOOL OF LAW, Albuquerque,
New Mexico, Arnold Locklear, LOCKLEAR, JACOBS, HUNT & BROOKS,
Pembroke, North Carolina for Amici Pearlein Revels, Louise
Mitchell, Eric Locklear, and Anita Hammonds Blanks. Bradley J.
Schlozman, HINKLE LAW FIRM LLC, Wichita, Kansas; Chris Fedeli,
Lauren M. Burke, JUDICIAL WATCH, INC., Washington, D.C.; H.
Christopher Coates, LAW OFFICE OF H. CHRISTOPHER COATES,
Charleston, South Carolina, for Amici Judicial Watch, Inc. and
Allied Educational Foundation.     Michael A. Carvin, Anthony J.
Dick, Stephen A. Vaden, JONES DAY, Washington, D.C., for Amici
Senators Thom Tillis, Lindsey Graham, Ted Cruz, Mike Lee, and
the Judicial Education Project.      Maya M. Noronha, Trevor M.
Stanley, E. Mark Braden, Richard B. Raile, BAKER & HOSTETLER
LLP, Washington, D.C., for Amicus Lawyers Democracy Fund.
Joshua P. Thompson, Christopher M. Kieser, PACIFIC LEGAL

                                7
FOUNDATION, Sacramento, California, for Amici Pacific Legal
Foundation, Center for Equal Opportunity, and Project 21.
Steven J. Lechner, MOUNTAIN STATES LEGAL FOUNDATION, Lakewood,
Colorado, for Amicus Mountain States Legal Foundation.     Joseph
A. Vanderhulst, PUBLIC INTEREST LEGAL FOUNDATION, Plainfield,
Indiana, for Amicus American Civil Rights Union.      Gregory F.
Zoeller, Attorney General of Indiana, Thomas M. Fisher,
Solicitor General, Winston Lin, Deputy Attorney General, OFFICE
OF THE INDIANA ATTORNEY GENERAL, Indianapolis, Indiana; Luther
Strange, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF
ALABAMA, Montgomery, Alabama; Mark Brnovich, Attorney General,
OFFICE OF THE ATTORNEY GENERAL OF ARIZONA, Phoenix, Arizona;
Leslie Rutledge, Attorney General, OFFICE OF THE ATTORNEY
GENERAL OF ARKANSAS, Little Rock, Arkansas; Sam Olens, Attorney
General, OFFICE OF THE ATTORNEY GENERAL OF GEORGIA, Atlanta,
Georgia; Derek Schmidt, Attorney General, OFFICE OF THE ATTORNEY
GENERAL OF KANSAS, Topeka, Kansas; Bill Schuette, Attorney
General, OFFICE OF THE ATTORNEY GENERAL OF MICHIGAN, Lansing,
Michigan; Wayne Stenehjem, Attorney General, OFFICE OF THE
ATTORNEY GENERAL OF NORTH DAKOTA, Bismarck, North Dakota;
Michael DeWine, Attorney General, OFFICE OF THE ATTORNEY GENERAL
OF OHIO, Columbus, Ohio; E. Scott Pruitt, Attorney General,
OFFICE OF THE ATTORNEY GENERAL OF OKLAHOMA, Oklahoma City,
Oklahoma; Alan Wilson, Attorney General, OFFICE OF THE ATTORNEY
GENERAL OF SOUTH CAROLINA, Columbia, South Carolina; Ken Paxton,
Attorney General, OFFICE OF THE ATTORNEY GENERAL OF TEXAS,
Austin, Texas; Patrick Morrisey, Attorney General, OFFICE OF THE
ATTORNEY GENERAL OF WEST VIRGINIA, Charleston, West Virginia;
Brad D. Schimel, Attorney General, OFFICE OF THE ATTORNEY
GENERAL OF WISCONSIN, Madison, Wisconsin, for Amici States of
Indiana, Alabama, Arizona, Arkansas, Georgia, Kansas, Michigan,
North Dakota, Ohio, Oklahoma, South Carolina, Texas, West
Virginia, and Wisconsin.




                               8
DIANA GRIBBON MOTZ, Circuit Judge, writing for the court except
as to Part V.B.:

      These consolidated cases challenge provisions of a recently

enacted      North        Carolina     election       law.        The     district         court

rejected contentions that the challenged provisions violate the

Voting Rights Act and the Fourteenth, Fifteenth, and Twenty-

Sixth Amendments of the Constitution.                    In evaluating the massive

record     in    this        case,     the    court     issued      extensive         factual

findings.            We     appreciate       and     commend      the     court      on      its

thoroughness.             The record evidence provides substantial support

for   many      of    its    findings;       indeed,    many    rest      on    uncontested

facts.     But, for some of its findings, we must conclude that the

district      court        fundamentally       erred.        In     holding         that     the

legislature          did     not     enact    the     challenged        provisions         with

discriminatory intent, the court seems to have missed the forest

in    carefully        surveying       the    many     trees.           This    failure       of

perspective led the court to ignore critical facts bearing on

legislative intent, including the inextricable link between race

and politics in North Carolina.

      Voting         in     many     areas    of    North    Carolina          is    racially

polarized.           That is, “the race of voters correlates with the

selection of a certain candidate or candidates.”                               Thornburg v.

Gingles, 478 U.S. 30, 62 (1986) (discussing North Carolina).                                  In

Gingles and other cases brought under the Voting Rights Act, the


                                               9
Supreme Court has explained that polarization renders minority

voters uniquely vulnerable to the inevitable tendency of elected

officials to entrench themselves by targeting groups unlikely to

vote     for    them.       In   North      Carolina,         restriction         of    voting

mechanisms       and     procedures       that    most    heavily       affect         African

Americans       will     predictably       redound       to    the     benefit         of    one

political party and to the disadvantage of the other.                                  As the

evidence in the record makes clear, that is what happened here.

       After years of preclearance and expansion of voting access,

by    2013     African    American    registration            and    turnout      rates       had

finally reached near-parity with white registration and turnout

rates.         African    Americans       were     poised       to    act    as    a        major

electoral force.          But, on the day after the Supreme Court issued

Shelby County v. Holder, 133 S. Ct. 2612 (2013), eliminating

preclearance       obligations,       a    leader    of       the    party     that         newly

dominated the legislature (and the party that rarely enjoyed

African American support) announced an intention to enact what

he characterized as an “omnibus” election law.                          Before enacting

that law, the legislature requested data on the use, by race, of

a number of voting practices.                    Upon receipt of the race data,

the General Assembly enacted legislation that restricted voting

and    registration        in    five       different         ways,     all       of        which

disproportionately affected African Americans.



                                            10
     In      response          to      claims        that        intentional         racial

discrimination         animated       its    action,       the    State    offered       only

meager     justifications.             Although      the    new    provisions       target

African     Americans          with        almost    surgical        precision,          they

constitute inapt remedies for the problems assertedly justifying

them and, in fact, impose cures for problems that did not exist.

Thus the asserted justifications cannot and do not conceal the

State’s true motivation.               “In essence,” as in League of United

Latin    American      Citizens       v.    Perry    (LULAC),      548    U.S.    399,    440

(2006),    “the       State    took    away    [minority         voters’]       opportunity

because [they] were about to exercise it.”                       As in LULAC, “[t]his

bears the mark of intentional discrimination.”                      Id.

     Faced with this record, we can only conclude that the North

Carolina General Assembly enacted the challenged provisions of

the law with discriminatory intent.                   Accordingly, we reverse the

judgment of the district court to the contrary and remand with

instructions to enjoin the challenged provisions of the law.



                                              I.

     “The     Voting        Rights     Act    of    1965     employed      extraordinary

measures to address an extraordinary problem.”                       Shelby Cty., 133

S.   Ct.    at    2618.         Although       the      Fourteenth        and    Fifteenth

Amendments       to   the     United   States       Constitution         prohibit    racial

discrimination          in      the        regulation       of     elections,         state

                                              11
legislatures have too often found facially race-neutral ways to

deny African Americans access to the franchise.                           See id. at

2619; Johnson v. De Grandy, 512 U.S. 997, 1018 (1994) (noting

“the demonstrated ingenuity of state and local governments in

hobbling      minority        voting     power”      as      “jurisdictions        have

substantially        moved    from    direct,      over[t]    impediments     to     the

right   to    vote    to     more    sophisticated     devices”        (alteration    in

original) (internal quotation marks omitted)).

       To remedy this problem, Congress enacted the Voting Rights

Act.    In its current form, § 2 of the Act provides:

       No voting qualification or prerequisite to voting or
       standard, practice, or procedure shall be imposed or
       applied by any State or political subdivision in a
       manner which results in a denial or abridgement of the
       right of any citizen of the United States to vote on
       account of race or color . . . .

52 U.S.C. § 10301(a) (2012) (formerly 42 U.S.C. § 1973(a)).

       In addition to this general statutory prohibition on racial

discrimination,        Congress       identified      particular        jurisdictions

“covered” by § 5 of the Voting Rights Act.                        Shelby Cty., 133

S. Ct. at 2619.            Covered jurisdictions were those that, as of

1972,   had    maintained       suspect      prerequisites        to    voting,    like

literacy     tests,    and     had   less   than    50%   voter    registration       or

turnout.      Id. at 2619-20.           Forty North Carolina jurisdictions

were covered under the Act.             28 C.F.R. pt. 51 app. (2016).              As a

result, whenever the North Carolina legislature sought to change


                                            12
the   procedures        or    qualifications          for     voting     statewide     or    in

those jurisdictions, it first had to seek “preclearance” with

the United States Department of Justice.                       In doing so, the State

had to demonstrate that a change had neither the purpose nor

effect of “diminishing the ability of any citizens” to vote “on

account of race or color.”                 52 U.S.C. § 10304 (2012) (formerly

42 U.S.C. § 1973c).

        During    the    period       in   which      North    Carolina        jurisdictions

were covered by § 5, African American electoral participation

dramatically improved.                 In particular, between 2000 and 2012,

when the law provided for the voting mechanisms at issue here

and     did      not     require       photo        ID,     African       American     voter

registration          swelled    by     51.1%.         J.A.    804 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.      J.A. 1196-97.            Not coincidentally, during this period

North Carolina emerged as a swing state in national elections.

      Then,      in    late     June    2013,       the   Supreme       Court    issued     its

opinion in Shelby County.                   In it, the Court invalidated the

preclearance          coverage    formula,          finding    it      based    on   outdated

data.     Shelby Cty., 133 S. Ct. at 2631.                          Consequently, as of

that date, North Carolina no longer needed to preclear changes

      1Citations to “J.A. __” refer to the Joint Appendix filed
by the parties in this appeal.


                                               13
in its election laws.             As the district court found, the day

after the Supreme Court issued Shelby County, the “Republican

Chairman of the [Senate] Rules Committee[] publicly stated, ‘I

think we’ll have an omnibus bill coming out’ and . . . that the

Senate would move ahead with the ‘full bill.’”                 N.C. State Conf.

of the NAACP v. McCrory, 2016 WL 1650774, at *9 (M.D.N.C. Apr.

25, 2016).       The legislature then swiftly expanded an essentially

single-issue       bill   into    omnibus      legislation,    enacting      it   as

Session Law (“SL”) 2013-381. 2

       In this one statute, the North Carolina legislature imposed

a number of voting restrictions.                  The law required in-person

voters      to   show   certain   photo    IDs,    beginning   in    2016,   which

African Americans disproportionately lacked, and eliminated or

reduced       registration   and    voting      access   tools      that   African

Americans disproportionately used.                 Id. at *9-10, *37, *123,

*127, *131.        Moreover, as the district court found, prior to

enactment of SL 2013-381, the legislature requested and received

racial data as to usage of the practices changed by the proposed

law.       Id. at *136-38.




       2
       The parties and the district court sometimes identify the
law at issue in this case as House Bill or HB 589, the initial
bill that originated in the House of the North Carolina General
Assembly.   That bill was amended in the North Carolina Senate
and then enacted as SL 2013-381.       See H.B. 589, 2013 Gen.
Assemb. (N.C. 2013); 2013 N.C. Sess. Laws 381.


                                          14
       This data showed that African Americans disproportionately

lacked the most common kind of photo ID, those issued by the

Department of Motor Vehicles (DMV).             Id.   The pre-Shelby County

version of SL 2013-381 provided that all government-issued IDs,

even many that had been expired, would satisfy the requirement

as an alternative to DMV-issued photo IDs.               J.A. 2114-15.        After

Shelby County, with race data in hand, the legislature amended

the bill to exclude many of the alternative photo IDs used by

African Americans.         Id. at *142; J.A. 2291-92.           As amended, the

bill retained only the kinds of IDs that white North Carolinians

were more likely to possess.         Id.; J.A. 3653, 2115, 2292.

       The district court found that, prior to enactment of SL

2013-381,    legislators      also   requested    data     as    to    the    racial

breakdown of early voting usage.            Id. at *136-37.           Early voting

allows any registered voter to complete an absentee application

and ballot at the same time, in person, in advance of Election

Day.    Id. at *4-5.       Early voting thus increases opportunities to

vote   for   those   who    have   difficulty    getting    to    their      polling

place on Election Day.

       The racial data provided to the legislators revealed that

African Americans disproportionately used early voting in both

2008 and 2012.       Id. at *136-38; see also id. at *48 n.74 (trial

evidence showing that 60.36% and 64.01% of African Americans

voted early in 2008 and 2012, respectively, compared to 44.47%

                                       15
and     49.39%     of   whites).              In    particular,        African    Americans

disproportionately used the first seven days of early voting.

Id.     After receipt of this racial data, the General Assembly

amended the bill to eliminate the first week of early voting,

shortening the total early voting period from seventeen to ten

days.       Id.    at   *15,    *136.              As   a   result,    SL   2013-381         also

eliminated        one   of    two     “souls-to-the-polls”             Sundays     in    which

African     American      churches        provided          transportation       to   voters.

Id. at *55.

      The     district        court       found         that    legislators       similarly

requested data as to the racial makeup of same-day registrants.

Id.   at    *137.       Prior       to    SL       2013-381,     same-day       registration

allowed eligible North Carolinians to register in person at an

early voting site at the same time as casting their ballots.

Id. at *6.          Same-day registration provided opportunities for

those as yet unable to register, as well as those who had ended

up    in    the    “incomplete        registration            queue”    after    previously

attempting to register.               Id. at *65.           Same-day registration also

provided     an    easy      avenue      to    re-register       for    those     who    moved

frequently, and allowed those with low literacy skills or other

difficulty completing a registration form to receive personal

assistance from poll workers.                  See id.

      The    legislature’s          racial         data     demonstrated    that,       as    the

district court found, “it is indisputable that African American

                                               16
voters disproportionately used [same-day registration] when it

was available.”       Id. at *61.     The district court further found

that   African     American   registration      applications     constituted    a

disproportionate       percentage    of    the    incomplete      registration

queue.     Id. at *65.    And the court found that African Americans

“are more likely to move between counties,” and thus “are more

likely to need to re-register.”           Id.    As evidenced by the types

of errors that placed many African American applications in the

incomplete queue, id. at *65, *123 & n.26, in-person assistance

likely     would    disproportionately       benefit    African     Americans.

SL 2013-381 eliminated same-day registration.             Id. at *15.

       Legislators    additionally   requested      a   racial   breakdown     of

provisional voting, including out-of-precinct voting.                   Id. at

*136-37.    Out-of-precinct voting required the Board of Elections

in each county to count the provisional ballot of an Election

Day voter who appeared at the wrong precinct, but in the correct

county, for all of the ballot items for which the voter was

eligible to vote.        Id. at *5-6.      This provision assisted those

who moved frequently, or who mistook a voting site as being in

their correct precinct.

       The district court found that the racial data revealed that

African Americans disproportionately voted provisionally.                    Id.

at *137.      In fact, the General Assembly that had originally

enacted the out-of-precinct voting legislation had specifically

                                     17
found     that   “of    those    registered        voters    who    happened      to   vote

provisional ballots outside their resident precincts” in 2004,

“a   disproportionately          high    percentage      were      African      American.”

Id. at *138.          With SL 2013-381, the General Assembly altogether

eliminated out-of-precinct voting.                 Id. at *15.

      African           Americans         also        disproportionately               used

preregistration.         Id. at *69.          Preregistration permitted 16- and

17-year-olds,         when    obtaining       driver’s      licenses       or    attending

mandatory        high     school        registration        drives,        to     identify

themselves and indicate their intent to vote.                        Id. at *7, *68.

This allowed County Boards of Elections to verify eligibility

and automatically register eligible citizens once they reached

eighteen.         Id.    at     *7.      Although     preregistration            increased

turnout among young adult voters, SL 2013-381 eliminated it.

Id. at *15, *69. 3

      The    district        court    found    that   not    only    did    SL    2013-381

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

      3SL 2013-381 also contained many provisions that did not
restrict access to voting or registration and thus are not
subject to challenge here.   N.C. State Conf., 2016 WL 1650774,
at *9.    Of course, as explained below, our holding regarding
discriminatory intent applies only to the law’s challenged
portions.


                                              18
factors that may hinder their political participation.”                             Id. at

*89.     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 *89.

       Nevertheless, over protest by many legislators and members

of the public, the General Assembly quickly ratified SL 2013-381

by strict party-line votes.                   Id. at *9-13.           The Governor, who

was of the same political party as the party that controlled the

General Assembly, promptly signed the bill into law on August

12, 2013.       Id. at *13.

       That    same     day,     the    League      of    Women     Voters,    along    with

numerous other organizations and individuals, filed suit.                                Id.

at *16.       These Plaintiffs alleged that the restrictions on early

voting    and    elimination           of    same-day       registration      and   out-of-

precinct       voting     were    motivated          by     discriminatory      intent    in

violation of § 2 of the Voting Rights Act and the Fourteenth and

Fifteenth Amendments; that these provisions had a discriminatory

result in violation of § 2 of the Voting Rights Act; and that

these    provisions       burdened          the     right    to     vote    generally,    in

contravention of the Fourteenth Amendment.                        See id.

       Also that same day, the North Carolina State Conference of

the NAACP, in conjunction with several other organizations and

individuals, filed a separate action.                         Id.     They alleged that

                                               19
the photo ID requirement and the provisions challenged by the

League of Women Voters produced discriminatory results under § 2

and demonstrated intentional discrimination in violation of the

Fourteenth and Fifteenth Amendments.                Id.      Soon thereafter, the

United States also filed suit, challenging the same provisions

as discriminatory in both purpose and result in violation of § 2

of the Voting Rights Act.                Id.     Finally, a group of “young

voters” intervened, alleging that these same provisions violated

their rights under the Fourteenth and Twenty-Sixth Amendments.

Id. 4       The district court consolidated the cases.            Id.

        Ahead     of    the   2014   midterm    general      election,    Plaintiffs

moved for a preliminary injunction of several provisions of the

law.        See N.C. State Conf. of the NAACP v. McCrory, 997 F. Supp.

2d 322, 339 (M.D.N.C. 2014).                   The district court denied the

motion.        Id.     at 383.   On appeal, we reversed in part, remanding

the     case     with    instructions    to     issue   an    order     staying   the

elimination of same-day registration and out-of-precinct voting.

League of Women Voters of N.C. v. North Carolina (LWV), 769 F.3d

224, 248-49 (4th Cir. 2014).

        Over the dissent of two Justices, the Supreme Court stayed

our injunction mandate on October 8, 2014, pending its decision


        4
       The complaints also challenged a few other provisions of
SL 2013-381 that are not challenged on appeal and so not
discussed here. See, e.g., J.A. 16448.


                                          20
on certiorari.          See North Carolina v. League of Women Voters of

N.C., 135 S. Ct. 6 (2014) (mem.).                     On April 6, 2015, the Supreme

Court denied certiorari.                  See North Carolina v. League of Women

Voters    of    N.C.,    135    S.Ct.       1735      (2015)       (mem.).          This   denial

automatically reinstituted the preliminary injunction, restoring

same-day       registration         and    out-of-precinct             voting       pending     the

outcome of trial in this case.                        North Carolina v. League of

Women Voters of N.C., 135 S. Ct. at 6.

     That consolidated trial was scheduled to begin on July 13,

2015.     N.C. State Conf., 2016 WL 1650774, at *18.                                However, on

June 18, 2015, the General Assembly ratified House Bill 836,

enacted as Session Law (“SL”) 2015-103.                           Id. at *13, *18.              This

new law amended the photo ID requirement by permitting a voter

without    acceptable        ID      to     cast      a    provisional         ballot      if    he

completed       a     declaration         stating         that    he     had    a    reasonable

impediment      to     acquiring      acceptable           photo    ID    (“the      reasonable

impediment exception”).              Id. at *13.            Given this enactment, the

district       court    bifurcated         trial      of    the    case.        Id.     at      *18.

Beginning      in     July   2015,        the   court      conducted       a    trial      on   the

challenges       to    all     of    the        provisions        except       the    photo       ID

requirement.           Id.     In     January        2016,       the    court       conducted     a

separate trial on the photo ID requirement, as modified by the

reasonable impediment exception.                     Id.



                                                21
      On   April    25,   2016,   the   district     court    entered    judgment

against the Plaintiffs on all of their claims as to all of the

challenged    provisions.         Id.   at   *171.      The   court     found   no

discriminatory results under § 2, no discriminatory intent under

§ 2 or the Fourteenth and Fifteenth Amendments, no undue burden

on the right to vote generally under the Fourteenth Amendment,

and no violation of the Twenty-Sixth Amendment.                     See id. at

*133-34, *148, *164, *167.          At the same time, acknowledging the

imminent June primary election, the court temporarily extended

the preliminary injunction of same-day registration and out-of-

precinct voting through that election.               Id. at *167.       The photo

ID requirement went into effect as scheduled for the first time

in the March 2016 primary election, and was again in effect

during the June primary election.            Id. at *19, *171.

      Plaintiffs timely noted this appeal.               J.A. 24967, 24970,

24976, 24980.        They also requested that we stay the district

court’s mandate and extend the preliminary injunction, which we

did pending our decision in this case.                  Order Extending the

Existing Stay, No. 16-1468 (Dkt. No. 122).

      On appeal, Plaintiffs reiterate their attacks on the photo

ID requirement, the reduction in days of early voting, and the

elimination    of    same-day     registration,      out-of-precinct      voting,

and   preregistration,      alleging     discrimination       against     African

Americans and Hispanics.          Because the record evidence is limited

                                        22
regarding      Hispanics,         we    confine     our     analysis        to    African

Americans.      We hold that the challenged provisions of SL 2013-

381   were      enacted         with    racially       discriminatory         intent      in

violation      of    the    Equal      Protection      Clause    of   the     Fourteenth

Amendment and § 2 of the Voting Rights Act.                      We need not and do

not reach Plaintiffs’ remaining claims.



                                           II.

                                            A.

      An appellate court can reverse a district court’s factual

findings     only     if    clearly     erroneous.        United      States      v.    U.S.

Gypsum Co., 333 U.S. 364, 395 (1948).                    This standard applies to

the ultimate factual question of a legislature’s discriminatory

motivation.         See Pullman-Standard v. Swint, 456 U.S. 273, 287-88

(1982);    Hunt      v.    Cromartie      (Cromartie      I),   526    U.S.      541,    549

(1999).      Such a finding is clearly erroneous if review of the

entire record leaves the appellate court “with the definite and

firm conviction that the [d]istrict [c]ourt’s key findings are

mistaken.”          Easley v. Cromartie (Cromartie II), 532 U.S. 234,

243   (2001)    (citation         and   internal       quotation      marks      omitted).

This is especially so when “the key evidence consisted primarily

of    documents           and    expert     testimony”          and    “[c]redibility

evaluations played a minor role.”                Id.



                                            23
      Moreover, if “the record permits only one resolution of the

factual    issue”    of    discriminatory           purpose,      then      an   appellate

court need not remand the case to the district court.                              Pullman-

Standard, at 292; see Cromartie II, 532 U.S. at 257 (reversing,

without     remanding,       three-judge        court’s        factual      finding      that

racial      intent      predominated           in     creation         of        challenged

redistricting       plan);    Hunter      v.    Underwood,       471     U.S.     222,   229

(1985)     (affirming      Court   of     Appeals’        reversal       without    remand

where district court’s finding of no discriminatory purpose was

clearly erroneous); Dayton Bd. of Educ. v. Brinkman, 443 U.S.

526, 534, 542 (1979) (affirming Court of Appeals’ reversal of

finding of no intentional discrimination with remand only to

enter remedy order).

      In   Village    of     Arlington     Heights        v.    Metropolitan        Housing

Development     Corp.,       429   U.S.    252      (1977),      the     Supreme      Court

addressed a claim that racially discriminatory intent motivated

a facially neutral governmental action.                        The Court recognized

that a facially neutral law, like the one at issue here, can be

motivated by invidious racial discrimination.                          Id. at 264-66.

If discriminatorily motivated, such laws are just as abhorrent,

and   just     as     unconstitutional,              as     laws       that      expressly

discriminate on the basis of race.                    Id.; Washington v. Davis,

426 U.S. 229, 241 (1976).



                                           24
      When considering whether discriminatory intent motivates a

facially    neutral       law,    a    court    must       undertake      a     “sensitive

inquiry into such circumstantial and direct evidence of intent

as   may   be    available.”          Arlington      Heights,      429    U.S.    at   266.

Challengers need not show that discriminatory purpose was the

“sole[]” or even a “primary” motive for the legislation, just

that it was “a motivating factor.”                      Id. at 265-66 (emphasis

added).     Discriminatory purpose “may often be inferred from the

totality of the relevant facts, including the fact, if it is

true, that the law bears more heavily on one race than another.”

Davis, 426 U.S. at 242.           But the ultimate question remains:                     did

the legislature enact a law “because of,” and not “in spite of,”

its discriminatory effect.              Pers. Adm’r of Mass. v. Feeney, 442

U.S. 256, 279 (1979).

      In Arlington Heights, the Court set forth a nonexhaustive

list of factors to consider in making this sensitive inquiry.

These include:         “[t]he historical background of the [challenged]

decision”; “[t]he specific sequence of events leading up to the

challenged       decision”;       “[d]epartures         from       normal       procedural

sequence”;       the   legislative       history      of     the   decision;       and    of

course, the disproportionate “impact of the official action --

whether     it    bears    more       heavily   on     one    race       than    another.”

Arlington Heights, 429 U.S. at 266-67 (internal quotation marks

omitted).

                                           25
       In    instructing         courts    to      consider     the       broader    context

surrounding the passage of legislation, the Court has recognized

that “[o]utright admissions of impermissible racial motivation

are    infrequent          and   plaintiffs        often      must    rely    upon        other

evidence.”      Cromartie I, 526 U.S. at 553.                   In a vote denial case

such   as    the     one    here,     where     the   plaintiffs       allege       that       the

legislature imposed barriers to minority voting, this holistic

approach is particularly important, for “[d]iscrimination today

is more subtle than the visible methods used in 1965.”                                        H.R.

Rep. No. 109-478, at 6 (2006), as reprinted in 2006 U.S.C.C.A.N.

618, 620.          Even “second-generation barriers” to voting, while

facially       race        neutral,     may      nonetheless         be     motivated           by

impermissible racial discrimination.                       Shelby Cty., 133 S. Ct. at

2635    (Ginsburg,         J.,    dissenting)         (cataloguing         ways     in    which

facially neutral voting laws continued to discriminate against

minorities even after passage of Voting Rights Act).

       “Once    racial        discrimination          is    shown     to    have     been        a

‘substantial’         or    ‘motivating’        factor      behind    enactment          of    the

law, the burden shifts to the law’s defenders to demonstrate

that   the     law    would      have   been       enacted    without       this    factor.”

Hunter, 471 U.S. at 228.                  When determining if this burden has

been met, courts must be mindful that “racial discrimination is

not just another competing consideration.”                           Arlington Heights,

429 U.S. at 265-66.               For this reason, the judicial deference

                                              26
accorded      to     legislators      when        “balancing    numerous          competing

considerations” is “no longer justified.”                      Id.     Instead, courts

must scrutinize the legislature’s actual non-racial motivations

to determine whether they alone can justify the legislature’s

choices.      See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle,

429 U.S. 274, 287 (1977); cf. Miss. Univ. for Women v. Hogan,

458 U.S. 718, 728 (1982) (describing “inquiry into the actual

purposes underlying a statutory scheme” that classified based on

gender (emphasis added) (internal quotation marks omitted)).                            If

a court finds that a statute is unconstitutional, it can enjoin

the   law.         See,    e.g.,   Hunter,    471     U.S.     at    231;   Anderson     v.

Martin, 375 U.S. 399, 404 (1964).

                                             B.

      In the context of a § 2 discriminatory intent analysis, one

of the critical background facts of which a court must take

notice   is    whether       voting    is   racially     polarized.          Indeed,    to

prevail in a case alleging discriminatory dilution of minority

voting strength under § 2, a plaintiff must prove this fact as a

threshold showing.           See Gingles, 478 U.S. at 51, 56, 62.                    Racial

polarization        “refers     to    the   situation        where    different      races

. . . vote in blocs for different candidates.”                        Id. at 62.       This

legal    concept          “incorporates      neither     causation          nor    intent”

regarding voter preferences, for “[i]t is the difference between

the choices made by blacks and whites -- not the reasons for

                                             27
that    difference       --      that     results”      in        the    opportunity          for

discriminatory         laws   to   have      their     intended         political       effect.

Id. at 62-63.

       While the Supreme Court has expressed hope that “racially

polarized voting is waning,” it has at the same time recognized

that “racial discrimination and racially polarized voting are

not ancient history.”              Bartlett v. Strickland, 556 U.S. 1, 25

(2009).     In fact, recent scholarship suggests that, in the years

following    President        Obama’s        election        in   2008,        areas    of    the

country    formerly       subject       to   §    5    preclearance            have    seen    an

increase     in        racially         polarized       voting.                See      Stephen

Ansolabehere, Nathaniel Persily & Charles Stewart III, Regional

Differences      in     Racial     Polarization         in    the       2012    Presidential

Election: Implications for the Constitutionality of Section 5 of

the Voting Rights Act, 126 Harv. L. Rev. F. 205, 206 (2013).

Further, “[t]his gap is not the result of mere partisanship, for

even when controlling for partisan identification, race is a

statistically significant predictor of vote choice, especially

in the covered jurisdictions.”                Id.

       Racially       polarized     voting        is    not,       in    and     of     itself,

evidence    of    racial      discrimination.            But       it    does    provide       an

incentive for intentional discrimination in the regulation of

elections.        In    reauthorizing         the     Voting      Rights       Act     in   2006,

Congress recognized that “[t]he potential for discrimination in

                                             28
environments        characterized       by    racially       polarized   voting      is

great.”    H.R. Rep. No. 109-478, at 35.                 This discrimination can

take   many    forms.      One    common          way   it   has   surfaced    is   in

challenges     centered    on    vote    dilution,       where     “manipulation     of

district lines can dilute the voting strength of politically

cohesive minority group members.”                  De Grandy, 512 U.S. at 1007

(emphasis added); see also Voinovich v. Quilter, 507 U.S. 146,

153-54 (1993).        It is the political cohesiveness of the minority

groups that provides the political payoff for legislators who

seek to dilute or limit the minority vote.

       The Supreme Court squarely confronted this connection in

LULAC.     There, the record evidence revealed racially polarized

voting, such that 92% of Latinos voted against an incumbent of a

particular party, whereas 88% of non-Latinos voted for him.                         548

U.S. at 427.         The Court explained how this racial polarization

provided      the    impetus    for     the       discriminatory     vote     dilution

legislation at issue in that case:                      “In old District 23 the

increase in Latino voter registration and overall population,

the concomitant rise in Latino voting power in each successive

election, the near-victory of the Latino candidate of choice in

2002, and the resulting threat to the” incumbent representative

motivated the controlling party to dilute the minority vote.

Id. at 428 (citation omitted).                Although the Court grounded its

holding on the § 2 results test, which does not require proof of

                                             29
intentional discrimination, the Court noted that the challenged

legislation bore “the mark of intentional discrimination.”                             Id.

at 440.

      The LULAC Court addressed a claim of vote dilution, but its

recognition      that      racially          polarized       voting      may    motivate

politicians      to      entrench        themselves       through     discriminatory

election     laws     applies     with       equal   force    in   the    vote    denial

context.      Indeed, it applies perhaps even more powerfully in

cases like that at hand, where the State has restricted access

to the franchise.         This is so because, unlike in redistricting,

where states may consider race and partisanship to a certain

extent, see, e.g., Miller v. Johnson, 515 U.S. 900, 920 (1995),

legislatures cannot restrict voting access on the basis of race.

(Nor, we note, can legislatures restrict access to the franchise

based on the desire to benefit a certain political party.                              See

Anderson v. Celebrezze, 460 U.S. 780, 792-93 (1983).)

      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.           This is so even absent any evidence of

race-based hatred and despite the obvious political dynamics.                            A

state      legislature     acting       on    such    a   motivation         engages    in



                                             30
intentional racial discrimination in violation of the Fourteenth

Amendment and the Voting Rights Act.



                                         III.

     With these principles in mind, we turn to their application

in the case at hand.

                                          A.

     Arlington Heights directs us to consider “[t]he historical

background      of      the      decision”         challenged           as    racially

discriminatory.         429   U.S.       at     267.         Examination     of   North

Carolina’s history of race discrimination and recent patterns of

official discrimination, combined with the racial polarization

of politics in the state, seems particularly relevant in this

inquiry.      The district court erred in ignoring or minimizing

these facts.

     Unquestionably, North Carolina has a long history of race

discrimination       generally     and    race-based          vote   suppression    in

particular.      Although     we     recognize         its    limited    weight,   see

Shelby Cty., 133 S. Ct. at 2628-29, North Carolina’s pre-1965

history of pernicious discrimination informs our inquiry.                          For

“[i]t was in the South that slavery was upheld by law until

uprooted by the Civil War, that the reign of Jim Crow denied

African–Americans the most basic freedoms, and that state and



                                          31
local governments worked tirelessly to disenfranchise citizens

on the basis of race.”           Id. at 2628.

      While it is of course true that “history did not end in

1965,” id., it is equally true that SL 2013-381 imposes the

first meaningful restrictions on voting access since that date

-- and a comprehensive set of restrictions at that.                        Due to this

fact,   and    because     the    legislation        came   into    being    literally

within days of North Carolina’s release from the preclearance

requirements of the Voting Rights Act, that long-ago history

bears more heavily here than it might otherwise.                      Failure to so

recognize would risk allowing that troubled history to “pick[]

up   where    it    left   off   in   1965”    to     the   detriment       of    African

American voters in North Carolina.              LWV, 769 F.3d at 242.

      In     considering     Plaintiffs’       discriminatory         results       claim

under § 2, the district court expressly and properly recognized

the State’s “shameful” history of “past discrimination.”                            N.C.

State      Conf.,   2016    WL    1650774,     at     *83-86.        But    the    court

inexplicably failed to grapple with that history in its analysis

of   Plaintiffs’       discriminatory         intent    claim.         Rather,       when

assessing the intent claim, the court’s analysis on the point

consisted solely of the finding that “there is little evidence

of official discrimination since the 1980s,” accompanied by a

footnote       dismissing        examples       of     more        recent        official

discrimination.       See id. at *143.

                                         32
       That finding is clearly erroneous.                      The record is replete

with evidence of instances since the 1980s in which the North

Carolina legislature has attempted to suppress and dilute the

voting rights of African Americans.                    In some of these instances,

the Department of Justice or federal courts have determined that

the North Carolina General Assembly acted with discriminatory

intent,      “reveal[ing]        a    series    of    official    actions       taken    for

invidious purposes.”              Arlington Heights, 429 U.S. at 267.                     In

others, the Department of Justice or courts have found that the

General Assembly’s action produced discriminatory results.                               The

latter    evidence,        of    course,      proves    less    about     discriminatory

intent than the former, but it is informative.                             A historical

pattern      of     laws    producing          discriminatory        results     provides

important         context        for         determining        whether      the        same

decisionmaking body has also enacted a law with discriminatory

purpose.       See, e.g., Veasey v. Abbott, No. 14-41127, 2016 WL

3923868      (5th   Cir.    July       20,    2016)    (en   banc)    (considering        as

relevant,     in    intentional         discrimination         analysis    of    voter    ID

law,   DOJ    letters      and       previous   court    cases    about     results      and

intent).

       The record reveals that, within the time period that the

district court found free of “official discrimination” (1980 to

2013), the Department of Justice issued over fifty objection

letters to proposed election law changes in North Carolina --

                                               33
including several since 2000 -- because the State had failed to

prove the proposed changes would have no discriminatory purpose

or effect.         See U.S. Dep’t of Justice, Civil Rights Div., Voting

Determination Letters for North Carolina (DOJ Letters) (Aug. 7,

2015),      https://www.justice.gov/crt/voting-determination-letters-

north-carolina; see also Regents of the Univ. of California v.

Bakke, 438 U.S. 265, 305 (1978) (referring to objections of the

Department of Justice under § 5 as “administrative finding[s] of

discrimination”). 5         Twenty-seven of those letters objected to

laws       that    either   originated    in   the   General   Assembly   or

originated with local officials and were approved by the General

Assembly.         See DOJ Letters.




       5
       Most recently, the Department of Justice objected to a law
the General Assembly enacted in 2011, Session Law (“SL”) 2011-
174. That statute changed the method of election for the school
board in Pitt County, North Carolina by reducing the number of
members and adding an at-large seat. See Letter from Thomas E.
Perez, Assistant Att’y General, Dept. of Just., to Robert T.
Sonnenberg, In-house Counsel, Pitt Cty. Sch. (Apr. 30, 2012), at
1,                          available                          at
https://www.justice.gov/sites/default/files/crt/legacy/2014/05/3
0/l_120430.pdf.     The Department of Justice conducted an
Arlington Heights analysis and declined to preclear the
retrogressive law. Id. at 1-4. Key facts in the discriminatory
intent analysis included:    that “[t]he county’s elections are
generally racially polarized,” that “African Americans have
never elected a candidate of choice to a county-wide office,”
that “Pitt County has a history of challenges to at-large
positions under the Voting Rights Act,” that the process for
enacting the law represented “a complete departure from the
normal procedures,” and that the “discriminatory effect was not
necessary to achieve the stated goal” of the law. Id. at 2-4.


                                         34
      During the same period, private plaintiffs brought fifty-

five successful cases under § 2 of the Voting Rights Act.                               J.A.

1260; Anita S. Earls et al., Voting Rights in North Carolina:

1982-2006, 17 S. Cal. Rev. L. & Soc. Just. 577 (2008).                                   Ten

cases ended in judicial decisions finding that electoral schemes

in counties and municipalities across the state had the effect

of discriminating against minority voters.                       See, e.g., Ward v.

Columbus Cty., 782 F. Supp. 1097 (E.D.N.C. 1991); Johnson v.

Halifax      Cty.,     594   F.    Supp.        161    (E.D.N.C.       1984)    (granting

preliminary         injunction).           Forty-five          cases     were      settled

favorably for plaintiffs out of court or through consent degrees

that altered the challenged voting laws.                       See, e.g., Daniels v.

Martin Cty. Bd. of Comm’rs., No. 4:89-cv-00137 (E.D.N.C. 1992);

Hall v. Kennedy, No. 3:88-cv-00117 (E.D.N.C. 1989); Montgomery

Cty. Branch of the NAACP v. Montgomery Cty. Bd. of Elections,

No. 3:90-cv-00027 (M.D.N.C. 1990).                      On several occasions, the

United States intervened in cases or filed suit independently.

See, e.g., United States v. Anson Bd. of Educ., No. 3:93-cv-

00210 (W.D.N.C. 1994); United States v. Granville Cty. Bd. of

Educ.,    No.       5:87-cv-00353       (E.D.N.C.       1989);       United    States    v.

Lenoir Cty., No. 87-105-cv-84 (E.D.N.C. 1987).

      And,     of    course,      the    case     in    which    the     Supreme    Court

announced the standard governing § 2 results claims -- Thornburg

v.   Gingles    --     was   brought       by    a     class    of    African    American

                                            35
citizens in North Carolina challenging a statewide redistricting

plan.      478    U.S.     at    35.      There      the     Supreme    Court    affirmed

findings by the district court that each challenged district

exhibited “racially polarized voting,” and held that “the legacy

of   official       discrimination            in    voting      matters,       education,

housing, employment, and health services . . . acted in concert

with the multimember districting scheme to impair the ability”

of   African      American       voters    to      “participate        equally    in   the

political process.”         Id. at 80.

      And only a few months ago (just weeks before the district

court issued its opinion in the case at hand), a three-judge

court addressed a redistricting plan adopted by the same General

Assembly that enacted SL 2013-381.                   Harris v. McCrory, No. 1:13-

CV-949, 2016 WL 482052, at *1-2 (M.D.N.C. Feb. 5, 2016), prob.

juris. noted, __ S. Ct. __, No. 15-1262, 2016 WL 1435913 (June

27, 2016).       The court held that race was the predominant motive

in   drawing     two    congressional         districts,       in    violation    of   the

Equal Protection Clause.               Id. at *1-2, *17 & n.9.              Contrary to

the district court’s suggestion, see N.C. State Conf., 2016 WL

1650774,     at     *143        n.223,    a        holding     that     a   legislature

impermissibly          relied     on     race      certainly        provides     relevant

evidence as to whether race motivated other election legislation

passed by the same legislature.



                                              36
        The district court failed to take into account these cases

and their important takeaway:                that state officials continued in

their    efforts      to    restrict    or    dilute      African    American       voting

strength well after 1980 and up to the present day.                               Only the

robust protections of § 5 and suits by private plaintiffs under

§   2   of   the    Voting     Rights   Act       prevented    those    efforts       from

succeeding.        These cases also highlight the manner in which race

and party are inexorably linked in North Carolina.                            This fact

constitutes a critical -- perhaps the most critical -- piece of

historical         evidence    here.         The    district        court    failed     to

recognize this linkage, leading it to accept “politics as usual”

as a justification for many of the changes in SL 2013-381.                             But

that cannot be accepted where politics as usual translates into

race-based discrimination.

        As it did with the history of racial discrimination, the

district     court     again      recognized       this   reality     when    analyzing

whether SL 2013-381 had a discriminatory result, but not when

analyzing whether it was motivated by discriminatory intent.                            In

its results analysis, the court noted that racially polarized

voting between African Americans and whites remains prevalent in

North Carolina.            N.C. State Conf., 2016 WL 1650774, at *86-87.

Indeed, at trial the State admitted as much.                         Id. at *86.        As

one     of   the     State’s      experts     conceded,       “in    North    Carolina,

African-American           race    is   a     better       predictor        for     voting

                                             37
Democratic than party registration.”                  J.A. 21400.       For example,

in North Carolina, 85% of African American voters voted for John

Kerry in 2004, and 95% voted for President Obama in 2008.                           N.C.

State Conf., 2016 WL 1650774, at *86.                   In comparison, in those

elections, only 27% of white North Carolinians voted for John

Kerry, and only 35% for President Obama.                 Id.

       Thus, whether the General Assembly knew the exact numbers,

it    certainly    knew   that     African     American        voters    were    highly

likely,    and     that   white    voters      were    unlikely,        to   vote    for

Democrats.       And it knew that, in recent years, African Americans

had    begun     registering     and    voting    in     unprecedented        numbers.

Indeed, much of the recent success of Democratic candidates in

North Carolina resulted from African American voters overcoming

historical barriers and making their voices heard to a degree

unmatched in modern history.

       Despite this, the district court took no issue with one of

the legislature’s stated purposes in enacting SL 2013-381 -- to

“mov[e] the law back to the way it was.”                 N.C. State Conf., 2016

WL 1650774, at *111.        Rather, the court apparently regarded this

as entirely appropriate.            The court noted repeatedly that the

voting mechanisms that SL 2013-381 restricts or eliminates were

ratified   “relatively      recently,”         “almost    entirely       along    party

lines,” when “Democrats controlled” the legislature; and that

SL 2013-381      was   similarly       ratified   “along       party    lines”      after

                                          38
“Republicans gained . . . control of both houses.”                         Id. at *2-7,

*12.

       Thus, the district court apparently considered SL 2013-381

simply    an    appropriate        means    for    one   party   to    counter      recent

success    by       another    party.       We    recognize    that    elections      have

consequences, but winning an election does not empower anyone in

any party to engage in purposeful racial discrimination.                            When a

legislature dominated by one party has dismantled barriers to

African American access to the franchise, even if done to gain

votes,    “politics           as   usual”    does       not   allow    a    legislature

dominated by the other party to re-erect those barriers.

       The record evidence is clear that this is exactly what was

done here.           For example, the State argued before the district

court that the General Assembly enacted changes to early voting

laws to avoid “political gamesmanship” with respect to the hours

and    locations        of    early   voting      centers.       J.A.      22348.       As

“evidence of justifications” for the changes to early voting,

the    State        offered    purported     inconsistencies      in       voting    hours

across counties, including the fact that only some counties had

decided to offer Sunday voting.                   Id.    The State then elaborated

on its justification, explaining that “[c]ounties with Sunday

voting         in      2014        were     disproportionately             black”      and

“disproportionately Democratic.”                   J.A. 22348-49.          In response,

SL 2013-381 did away with one of the two days of Sunday voting.

                                             39
See N.C. State Conf., 2016 WL 1650774, at *15.                            Thus, in what

comes as close to a smoking gun as we are likely to see in

modern times, 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. 6

       These     contextual          facts,         which     reveal      the     powerful

undercurrents         influencing       North        Carolina    politics,        must     be

considered in determining why the General Assembly enacted SL

2013-381.            Indeed,    the     law’s       purpose     cannot     be     properly

understood without these considerations.                      The record makes clear

that the historical origin of the challenged provisions in this

statute is not the innocuous back-and-forth of routine partisan

struggle that the State suggests and that the district court

accepted.        Rather,       the   General      Assembly      enacted    them    in     the

immediate      aftermath        of    unprecedented         African    American         voter

participation         in   a   state   with     a    troubled    racial     history       and

racially polarized voting.              The district court clearly erred in

ignoring or dismissing this historical background evidence, all

of which supports a finding of discriminatory intent.

       6
       Of course, state legislators also cannot impermissibly
dilute or deny the votes of opponent political parties, see
Anderson, 460 U.S. at 793 -- as this same General Assembly was
found to have done earlier this year. See Raleigh Wake Citizens
Ass’n v. Wake Cty. Bd. of Elections, No. 16-1270, 2016 WL
3568147 (4th Cir. July 1, 2016).


                                             40
                                           B.

      Arlington       Heights       also     instructs     us    to    consider      the

“specific     sequence    of     events       leading     up    to    the   challenged

decision.”        429 U.S. at 267.         In doing so, a court must consider

“[d]epartures from the normal procedural sequence,” which may

demonstrate “that improper purposes are playing a role.”                             Id.

The sequential facts found by the district court are undeniably

accurate.     N.C. State Conf., 2016 WL 1650774, at *8-13.                       Indeed,

they are undisputed.          Id.    And they are devastating.              The record

shows     that,     immediately       after      Shelby    County,      the      General

Assembly vastly expanded an earlier photo ID bill and rushed

through     the    legislative      process      the    most    restrictive       voting

legislation seen in North Carolina since enactment of the Voting

Rights Act of 1965.           Id.     The district court erred in refusing

to   draw   the     obvious    inference        that   this     sequence    of    events

signals discriminatory intent.

      The    district    court       found    that     prior    to    Shelby     County,

SL 2013-381 numbered only sixteen pages and contained none of

the challenged provisions, with the exception of a much less

restrictive photo ID requirement.                 Id. at *8, *143-44.            As the

court further found, this pre-Shelby County bill was afforded

more than three weeks of debate in public hearings and almost

three more weeks of debate in the House.                      Id. at *8.       For this

version of the bill, there was some bipartisan support:                          “[f]ive

                                           41
House Democrats joined all present Republicans in voting for the

voter-ID bill.”        Id.

      The district court found that SL 2013-381 passed its first

read in the Senate on April 25, 2013, where it remained in the

Senate Rules Committee.            Id.     At that time, the Supreme Court

had heard argument in Shelby County, but had issued no opinion.

Id.     “So,” as the district court found, “the bill sat.”                             Id.

For the next two months, no public debates were had, no public

amendments made, and no action taken on the bill.

      Then,     on   June    25,   2013,    the      Supreme    Court       issued     its

opinion in Shelby County.            Id. at *9.            The very next day, the

Chairman   of    the    Senate     Rules    Committee        proclaimed       that     the

legislature “would now move ahead with the full bill,” which he

recognized would be “omnibus” legislation.                      Id. at *9.          After

that announcement, no further public debate or action occurred

for almost a month.          Id.   As the district court explained, “[i]t

was not until July 23 . . . that an expanded bill, including the

election changes challenged in this case, was released.”                          Id. at

*144.

      The new bill -- now fifty-seven pages in length -- targeted

four voting and registration mechanisms, which had previously

expanded   access      to    the   franchise,        and   provided     a    much    more

stringent photo ID provision.               See 2013 N.C. Sess. Laws 381.

Post-Shelby     County,      the   change       in   accepted    photo      IDs   is    of

                                           42
particular note:      the new ID provision retained only those types

of photo ID disproportionately held by whites and excluded those

disproportionately held by African Americans.               N.C. State Conf.,

2016 WL 1650774, at *37, *142.            The district court specifically

found that “the removal of public assistance IDs” in particular

was “suspect,” because “a reasonable legislator [would be] aware

of the socioeconomic disparities endured by African Americans

[and] could have surmised that African Americans would be more

likely to possess this form of ID.”            Id. at *142.

     Moreover, after the General Assembly finally revealed the

expanded SL 2013-381 to the public, the legislature rushed it

through    the   legislative    process.       The   new   SL   2013-381    moved

through the General Assembly in three days:                     one day for a

public hearing, two days in the Senate, and two hours in the

House.     Id. at *9-12.        The House Democrats who supported the

pre-Shelby County bill now opposed it.               Id. at *12.      The House

voted     on   concurrence    in   the    Senate’s    version,     rather    than

sending the bill to a committee.              Id. at *12.       This meant that

the House had no opportunity to offer its own amendments before

the up-or-down vote on the legislation; that vote proceeded on

strict party lines.          Id.; see J.A. 1299; N.C. H.R. Rules 43.2,

43.3, 44.      The Governor, of the same party as the proponents of

the bill, then signed the bill into law.             N.C. State Conf., 2016

WL 1650774, at *13.           This hurried pace, of course, strongly

                                         43
suggests      an   attempt       to   avoid        in-depth      scrutiny.         See,    e.g.,

Veasey, 2016 WL 3923868, at *12 (noting as suspicious voter ID

law’s “three-day passage through the Senate”).                              Indeed, neither

this    legislature         --   nor,      as    far    as   we    can     tell,    any    other

legislature in the Country -- has ever done so much, so fast, to

restrict access to the franchise.

       The district court erred in accepting the State’s efforts

to cast this suspicious narrative in an innocuous light.                                   To do

so,     the   court     focused         on      certain      minor    facts        instead     of

acknowledging         the    whole      picture.          For     example,       although     the

court     specifically           found       the       above      facts,     it      dismissed

Plaintiffs’ argument that this sequence of events demonstrated

unusual legislative speed because the legislature “acted within

all    [of    its]    procedural        rules.”         N.C.      State     Conf.,    2016     WL

1650774, at *145.            But, of course, a legislature need not break

its    own    rules    to    engage        in    unusual       procedures.          Even     just

compared to the process afforded the pre-Shelby County bill, the

process for the “full bill” was, to say the very least, abrupt.

       Similarly,       the      district           court       accused     Plaintiffs         of

“ignor[ing] the extensive debate and consideration the initial

voter-ID      bill    received        in     the     spring.”        Id.    at    *146.       But

because the pre-Shelby County bill did not contain any of the

provisions challenged here, that debate hardly seems probative.

The district court also quoted one senator who opposed the new

                                                44
“full   bill”    as    saying    that      the    legislators    had    “a    good    and

thorough debate.”          Id. at *12, *145.            We note, however, that

many more legislators expressed dismay at the rushed process.

Id. at *145.          Indeed, as the court itself noted, “[s]everal

Democratic senators characterized the bill as voter suppression

of minorities.        Others characterized the bill as partisan.”                     Id.

at   *12     (citations    omitted).             Republican   senators       “strongly

denied such claims,” while at the same time linking the bill to

partisan goals:         that “the bill reversed past practices that

Democrats passed to favor themselves.”                Id.

      Finally, the district court dismissed the expanded law’s

proximity to the Shelby County decision as above suspicion.                           The

Court   found    that     the   General      Assembly    “would     not      have    been

unreasonable” to wait until after Shelby County to consider the

“full bill” because it could have concluded that the provisions

of the “full bill” were “simply not worth the administrative and

financial cost” of preclearance.                 Id. at *144.       Although desire

to   avoid    the     hassle    of   the    preclearance        process      could,    in

another case, justify a decision to await the outcome in Shelby

County, that inference is not persuasive in this case.                                For

here, the General Assembly did not simply wait to enact changes

to   its   election     laws    that    might       require   the      administrative

hassle of, but likely would pass, preclearance.                        Rather, after

Shelby County it moved forward with what it acknowledged was an

                                            45
omnibus bill that restricted voting mechanisms it knew were used

disproportionately by African Americans, id. at *148, and so

likely would not have passed preclearance.                        And, after Shelby

County, the legislature substantially changed the one provision

that it had fully debated before.                  As noted above, the General

Assembly completely revised the list of acceptable photo IDs,

removing    from     the    list    the    IDs     held    disproportionately         by

African Americans, but retaining those disproportionately held

by whites.     Id. at *37, *142.                This fact alone undermines the

possibility that the post-Shelby County timing was merely to

avoid the administrative costs.

     Instead, this sequence of events -- the General Assembly’s

eagerness     to,     at    the    historic       moment    of     Shelby        County’s

issuance,     rush     through       the    legislative       process       the     most

restrictive voting law North Carolina has seen since the era of

Jim Crow -- bespeaks a certain purpose.                    Although this factor,

as with the other Arlington Heights factors, is not dispositive

on its own, it provides another compelling piece of the puzzle

of the General Assembly’s motivation.

                                           C.

     Arlington       Heights       also    recognizes      that    the    legislative

history     leading    to    a     challenged      provision       “may     be    highly

relevant, especially where there are contemporaneous statements

by members of the decisionmaking body, minutes of its meetings,

                                           46
or reports.”    429 U.S. at 268.    Above, we have discussed much of

what can be gleaned from the legislative history of SL 2013-381

in the sequence of events leading up to its enactment.

     No minutes of meetings about SL 2013-381 exist.         And, as

the Supreme Court has recognized, testimony as to the purpose of

challenged     legislation   “frequently    will    be    barred   by

[legislative] privilege.”    Id.   That is the case here.    See N.C.

State Conf., 2016 WL 1650774, at *71 n.124.        The district court

was correct to note that statements from only a few legislators,

or those made by legislators after the fact, are of limited

value.   See id. at 146; Barber v. Thomas, 560 U.S. 474, 485-86

(2010); Hunter, 471 U.S. at 228. 7




     7 Some of the statements by those supporting the legislation
included a Republican precinct chairman who testified before the
House Rules Committee that the photo 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.” See J.A. 1313-14; Yelton
testimony, Transcript of Public Hearing of the North Carolina
General Assembly, House Elections Committee (Apr. 10, 2013) at
51. Responding to the outcry over the law after its enactment,
the same witness later said publicly:    “If [SL 2013-381] hurts
the whites so be it.    If it hurts a bunch of lazy blacks that
want the government to give them everything, so be it.”       See
J.A. 1313-14; Joe Coscarelli, Don Yelton, GOP Precinct Chair,
Delivers Most Baldly Racist Daily Show Interview of All Time,
New York Magazine, Oct. 24, 2013. These statements do not prove
that any member of the General Assembly necessarily acted with
discriminatory intent.    But the sheer outrageousness of these
public statements by a party leader does provide some evidence
of the racial and partisan political environment in which the
General Assembly enacted the law.


                                   47
       We   do      find    worthy    of     discussion,           however,      the     General

Assembly’s requests for and use of race data in connection with

SL 2013-381.         As explained in detail above, prior to and during

the limited debate on the expanded omnibus bill, members of the

General Assembly requested and received a breakdown by race of

DMV-issued ID ownership, absentee voting, early voting, same-day

registration,         and    provisional        voting           (which   includes       out-of-

precinct voting).            N.C. State Conf., 2016 WL 1650774, at *136-

38, *148; J.A. 1628-29, 1637, 1640-41, 1782-97, 3084-3119.

       This          data      revealed               that            African          Americans

disproportionately used early voting, same-day registration, and

out-of-precinct voting, and disproportionately lacked DMV-issued

ID.    N.C. State Conf., 2016 WL 1650774, at *148; J.A. 1782-97,

3084-3119.           Not    only     that,      it        also    revealed      that     African

Americans did not disproportionately use absentee voting; whites

did.    J.A. 1796-97, 3744-47.               SL 2013-381 drastically restricted

all    of   these     other    forms       of    access          to   the    franchise,      but

exempted absentee voting from the photo ID requirement.                                  In sum,

relying       on    this    racial    data,          the    General       Assembly       enacted

legislation          restricting       all           --     and       only    --       practices

disproportionately used by African Americans.                                When juxtaposed

against       the    unpersuasive       non-racial               explanations      the     State

proffered for the specific choices it made, discussed in more



                                                48
detail below, we cannot ignore the choices the General Assembly

made with this data in hand.

                                             D.

       Finally,        Arlington     Heights       instructs           that   courts         also

consider the “impact of the official action” -- that is, whether

“it bears more heavily on one race than another.”                               429 U.S. at

266   (internal        quotation     marks    omitted).            The    district          court

expressly found that “African Americans disproportionately used”

the removed voting mechanisms and disproportionately lacked DMV-

issued photo ID.            N.C. State Conf., 2016 WL 1650774, at *37,

*136.           Nevertheless,         the         court        concluded        that         this

“disproportionate[]          use[]”     did        not    “significantly            favor      a

finding of discriminatory purpose.”                   Id. at *143.            In doing so,

the     court     clearly    erred.          Apparently,          the     district      court

believed that the disproportionate impact of the new legislation

“depends     on    the     options    remaining”          after        enactment       of    the

legislation.           Id. at *136.     Arlington Heights requires nothing

of the kind.

       The Arlington Heights Court recognized that “[t]he impact

of    [a   governmental]      decision”        not       to    rezone     for    low-income

housing “bear[s] more heavily on racial minorities.”                                429 U.S.

at    269.        In     concluding    that        the        zoning     decision      had     a

disproportionate impact, the Court explained that “[m]inorities

constitute[d] 18% of the Chicago area population, and 40% of the

                                             49
income groups said to be eligible for” the low-income housing.

Id.   The Court did not require those minority plaintiffs to show

that the Chicago area as a whole lacked low-income housing or

that the plaintiffs had no other housing options.                             Instead, it

was sufficient that the zoning decision excluded them from a

particular area.        Id. at 260, 265-66, 269; see also City of

Memphis v. Greene, 451 U.S. 100, 110, 126 (1981) (indicating

that closing a street used primarily by African Americans had a

disproportionate       impact,     even          though       “the     extent      of   the

inconvenience [was] not great”).

      Thus,    the   standard     the       district         court     used   to   measure

impact    required    too   much       in    the      context     of    an    intentional

discrimination claim.          When plaintiffs contend that a law was

motivated     by   discriminatory       intent,        proof    of     disproportionate

impact is not “the sole touchstone” of the claim.                              Davis, 426

U.S. at     242.     Rather,    plaintiffs            asserting      such     claims    must

offer other evidence that establishes discriminatory intent in

the totality of the circumstances.                      Id. at 239-42.             Showing

disproportionate       impact,     even          if    not     overwhelming        impact,

suffices      to   establish     one        of   the    circumstances          evidencing

discriminatory intent. 8


      8Interpreting Arlington Heights to require a more onerous
impact   showing   would  eliminate   the  distinction   between
discriminatory results claims under § 2 of the Voting Rights Act
(Continued)
                                            50
     Accordingly,        the    district     court’s        findings          that    African

Americans     disproportionately             used        each       of        the     removed

mechanisms, as well as disproportionately lacked the photo ID

required     by    SL    2013-381,      if        supported     by        the       evidence,

establishes sufficient disproportionate impact for an Arlington

Heights    analysis.           As   outlined       above,     the    record          evidence

provides abundant support for that holding.

     Moreover, the district court also clearly erred in finding

that the cumulative impact of the challenged provisions of SL

2013-381 does not bear more heavily on African Americans.                                  See

Clingman v. Beaver, 544 U.S. 581, 607-08 (2005) (O’Connor, J.,

concurring)       (“A    panoply       of        regulations,        each       apparently

defensible    when      considered     alone,       may     nevertheless            have   the

combined     effect     of      severely     restricting        participation              and

competition.”).           For       example,       the    photo          ID     requirement

inevitably increases the steps required to vote, and so slows

the process.       The early voting provision reduced the number of

days in which citizens can vote, resulting in more voters voting




and discriminatory intent claims under § 2 and the Constitution.
When plaintiffs contend that a law has a discriminatory result
under § 2, they need prove only impact.      In that context, of
course   plaintiffs    must   make    a   greater   showing   of
disproportionate impact. Otherwise, plaintiffs could prevail in
any and every case in which they proved any impact.


                                            51
on Election Day. 9          Together, these produce longer lines at the

polls      on    Election        Day,        and    absent        out-of-precinct        voting,

prospective Election Day voters may wait in these longer lines

only to discover that they have gone to the wrong precinct and

are     unable      to    travel        to     their      correct       precincts.        Thus,

cumulatively,        the    panoply          of     restrictions        results   in     greater

disenfranchisement               than         any        of      the     law’s     provisions

individually.

       The      district        court        discounted           the   claim     that    these

provisions        burden        African       Americans,          citing    the    fact     that

similar election laws exist or have survived challenges in other

states.         See, e.g., N.C. State Conf., 2016 WL 1650774, at *45,

*139       (photo        ID),      *46         (early           voting),    *57      (same-day

registration),             *66               (out-of-precinct              voting),         *69

(preregistration).                But        the        sheer     number   of     restrictive

       9
       The State unpersuasively contends that SL 2013-381’s “same
hours”   provision   leaves    the  opportunity  to   vote  early
“materially the same as the early voting opportunities before
the bill was enacted,” despite the reduction in early voting
days.   State Br. 51 (internal quotation marks omitted).      The
same hours provision requires counties to offer the same number
of aggregate hours of early voting in midterm and presidential
elections as they did in the comparable 2010 midterm or 2012
presidential elections.    N.C. State Conf., 2016 WL 1650774, at
*11.   A critical problem with the State’s argument is that the
law provided that any county could waive out of this
requirement, and, in 2014, about 30% of the counties did waive
out of the requirement.      See J.A. 9541-44.   Moreover, longer
lines during the reduced number of days in which citizens can
vote would necessitate opening new polling sites and placing
them in high-demand locations; the law does not require either.


                                                   52
provisions in SL 2013-381 distinguishes this case from others.

See, e.g., Crawford v. Marion Cty. Election Bd., 553 U.S. 181,

185 (2008) (challenging only a photo ID requirement); Hunter,

471   U.S.   at   223   (challenging    only    a     felon    and   misdemeanant

disenfranchisement       law);   Veasey,       2016     WL     3923868,   at   *1

(challenging only a photo ID requirement).                    Moreover, removing

voting tools that have been disproportionately used by African

Americans meaningfully differs from not initially implementing

such tools.       Cf. Harper v. Va. Bd. of Elections, 383 U.S. 663,

665 (1966) (“[O]nce the franchise is granted to the electorate,

lines may not be drawn which are inconsistent with the Equal

Protection Clause of the Fourteenth Amendment.”).

      The district court also erred in suggesting that Plaintiffs

had to prove that the challenged provisions prevented African

Americans from voting at the same levels they had in the past.

No law implicated here -- neither the Fourteenth Amendment nor

§ 2 -- requires such an onerous showing.                     Emblematic of this

error is the almost dispositive weight the court gave to the

fact that African American aggregate turnout increased by 1.8%

in the 2014 midterm election as compared to the 2010 midterm

election.     See N.C. State Conf., 2016 WL 1650774, at *18, *122,

*132.   In addition to being beyond the scope of disproportionate

impact analysis under Arlington Heights, several factors counsel

against such an inference.

                                       53
       First, as the Supreme Court has explained, courts should

not place much evidentiary weight on any one election.                                     See

Gingles, 478 U.S. at 74-77 (noting that the results of multiple

elections       are    more        probative    than     the   result        of    a    single

election,       particularly         one    held     during    pending       litigation).

This is especially true for midterm elections.                           As the State’s

own expert testified, fewer citizens vote in midterm elections,

and those that do are more likely to be better educated, repeat

voters    with    greater          economic    resources.         J.A.   23801-02;          cf.

League of Women Voters of North Carolina, 135 S. Ct. at 6-7

(Ginsburg,       J.,        dissenting)        (noting     that     midterm            primary

elections are “highly sensitive to factors likely to vary from

election to election,” more so than presidential elections).

       Moreover,        although       aggregate        African     American           turnout

increased    by       1.8%    in    2014,     many   African   American           votes   went

uncounted.        As     the       district     court    found,    African         Americans

disproportionately            cast     provisional       out-of-precinct               ballots,

which would have been counted absent SL 2013-381.                                   See N.C.

State Conf., 2016 WL 1650774, at *63.                     And thousands of African

Americans    were       disenfranchised         because    they    registered           during

what    would     have       been    the    same-day      registration         period       but

because of SL 2013-381 could not then vote.                          See id. at *67.

Furthermore, the district court failed to acknowledge that a

1.8%     increase      in     voting       actually     represents       a        significant

                                               54
decrease in the rate of change.              For example, in the prior four-

year period, African American midterm voting had increased by

12.2%.   J.A. 1197.

      In sum, while the district court recognized the undisputed

facts as to the impact of the challenged provisions of SL 2013-

381, it simply refused to acknowledge their import.                      The court

concluded its analysis by remarking that these provisions simply

eliminated a system “preferred” by African Americans as “more

convenient.”       N.C. State Conf., 2016 WL 1650774, at *170.                  But

as the court itself found elsewhere in its opinion, “African

Americans . . . in North Carolina are disproportionately likely

to    move,   be    poor,    less     educated,       have     less   access      to

transportation, and experience poor health.”                 Id. at *89.

      These   socioeconomic     disparities        establish      that    no    mere

“preference”   led    African       Americans    to   disproportionately         use

early voting, same-day registration, out-of-precinct voting, and

preregistration.      Nor does preference lead African Americans to

disproportionately lack acceptable photo ID.                   Yet the district

court refused to make the inference that undeniably flows from

the   disparities     it    found    many      African   Americans       in    North

Carolina experienced.        Registration and voting tools may be a

simple “preference” for many white North Carolinians, but for

many African Americans, they are a necessity.



                                        55
                                           E.

     In    sum,     assessment       of     the    Arlington          Heights     factors

requires the conclusion that, at least in part, discriminatory

racial     intent    motivated       the        enactment        of   the     challenged

provisions in SL 2013-381.            The district court clearly erred in

holding otherwise.         In large part, this error resulted from the

court’s consideration of each piece of evidence in a vacuum,

rather    than    engaging    in     the    totality        of    the    circumstances

analysis required by Arlington Heights.                   Any individual piece of

evidence    can   seem   innocuous        when    viewed     alone,     but      gains   an

entirely different meaning when considered in context.

     Our conclusion does not mean, and we do not suggest, that

any member of the General Assembly harbored racial hatred or

animosity toward any minority group.                   But the totality of the

circumstances       --      North         Carolina’s        history         of     voting

discrimination;      the     surge    in        African     American        voting;      the

legislature’s knowledge that African Americans voting translated

into support for one party; and the swift elimination of the

tools African Americans had used to vote and imposition of a new

barrier at the first opportunity to do so -- cumulatively and

unmistakably reveal that the General Assembly used SL 2013-381

to entrench itself.        It did so by targeting voters who, based on

race, were unlikely to vote for the majority party.                               Even if

done for partisan ends, that constituted racial discrimination.

                                           56
                                             IV.

       Because Plaintiffs have established race as a factor that

motivated enactment of the challenged provisions of SL 2013-381,

the burden now “shifts to the law’s defenders to demonstrate

that    the       law    would   have   been      enacted     without       this      factor.”

Hunter, 471 U.S. at 228; Arlington Heights, 429 U.S. at 271

n.21. 10          Once     the   burden    shifts,       a    court       must     carefully

scrutinize a state’s non-racial motivations to determine whether

they       alone     can    explain     enactment        of    the       challenged      law.

Arlington Heights, 429 U.S. at 265-66.                        “[J]udicial deference”

to     the    legislature’s         stated     justifications            “is     no    longer

justified.”          Id.

       A     court      assesses   whether     a   law   would       have    been      enacted

without       a    racially      discriminatory      motive         by   considering      the

substantiality of the state’s proffered non-racial interest and

how well the law furthers that interest.                           See Hunter, 471 U.S.

at 228-33; see also Mhany Mgmt., Inc. v. Cty. of Nassau, 819

F.3d 581, 614 (2d Cir. 2016) (considering “whether [non-racial]

concerns          were      sufficiently       strong         to     cancel        out     any




       10
        We note that at least one of our sister circuits has
rejected the second step of this inquiry as inappropriate for
intent claims under § 2.    See Askew v. City of Rome, 127 F.3d
1355, 1373 (11th Cir. 1997) (“[I]t is not a defense under the
Voting Rights Act that the same action would have been taken
regardless of the racial motive.”).


                                             57
discriminatory animus” after shifting the burden under Arlington

Heights in a Fair Housing Act claim).

       Given a state’s interest in the fair administration of its

elections, a rational justification can be imagined for many

election laws, including some of the challenged provisions here.

But a court must be mindful of the number, character, and scope

of the modifications enacted together in a single challenged law

like SL 2013-381.          Only then can a court determine whether a

legislature would have enacted that law regardless of its impact

on African American voters.

       In   this   case,     despite    finding     that    race      was      not   a

motivating factor for enactment of the challenged provisions of

SL     2013-381,    the     district     court     addressed       the       State’s

justifications for each provision at length.                 N.C. State Conf.,

2016 WL 1650774, at *96-116, *147.               The court did so, however,

through     a   rational-basis-like     lens.      For     example,    the      court

found    the    General    Assembly’s   decision     to    eliminate        same-day

registration “not unreasonable,” and found “at least plausible”

the reasons offered for excluding student IDs from the list of

qualifying IDs.       Id. at *108, *142.          But, of course, a finding

that    legislative       justifications     are    “plausible”          and     “not

unreasonable” is a far cry from a finding that a particular law

would have been enacted without considerations of race.                        As the

Supreme Court has made clear, such deference in that inquiry is

                                        58
wholly inappropriate.             See Arlington Heights, 429 U.S. at 265-66

(explaining      that       because    “racial     discrimination     is    not   just

another competing consideration,” a court must do much more than

review for “arbitrariness or irrationality”).

       Accordingly, the ultimate findings of the district court

regarding the compelling nature of the State’s interests are

clearly erroneous.           Typically, that fact would recommend remand.

But we need not remand where the record provides “a complete

understanding” of the merits, Tejada v. Dugger, 941 F.2d 1551,

1555 (11th Cir. 1991) (internal quotation marks omitted), and

“permits only one resolution of the factual issue,” Pullman-

Standard, 456 U.S. at 292.              See also Withrow v. Larkin, 421 U.S.

35, 45 (1975) (declining to remand where Court “doubt[ed] that

such    action    .     .     .    would   add     anything     essential    to     the

determination of the merits”).               After a total of four weeks of

trial, the district court entered a 479-page order based on more

than    25,000    pages       of      evidence.        N.C.   State   Conf.,      2016

WL 1650774, at *2.           Although the court erred with respect to the

appropriate degree of deference due to the State’s proffered

justifications, that error affected only its ultimate finding

regarding their persuasive weight; it did not affect the court’s

extensive foundational findings regarding those justifications.

       These   foundational         findings      as   to   justifications    for    SL

2013-381 provide a more than sufficient basis for our review of

                                           59
that law.      For we are satisfied that this record is “complete,”

indeed as “complete” as could ever reasonably be expected, and

that remand would accomplish little.                  Tejada, 941 F.2d at 1555;

see Withrow, 421 U.S. at 45.               And, after painstaking review of

the record, we must also conclude that it “permits only one

resolution of the factual issue.”                Pullman-Standard, 456 U.S. at

292.    The record evidence plainly establishes race as a “but-

for” cause of SL 2013-381.          See Hunter, 471 U.S. at 232.

       In enacting the photo ID requirement, the General Assembly

stated that it sought to combat voter fraud and promote public

confidence in the electoral system.                   See 2013 N.C. Sess. Laws

381.     These       interests    echo     those      the    Crawford   Court    held

justified a photo ID requirement in Indiana.                     553 U.S. at 194-

97.     The    State    relies    heavily        on   that   holding.     But   that

reliance      is   misplaced     because    of    the   fundamental     differences

between Crawford and this case.

       The challengers in Crawford did not even allege intentional

race discrimination.           Rather, they mounted a facial attack on a

photo ID requirement as unduly burdensome on the right to vote

generally.         The Crawford Court conducted an “Anderson-Burdick”

analysis, balancing the burden of a law on voters against the

state’s interests, and concluded that the photo ID requirement

“impose[d] only a limited burden on voters’ rights.”                     Crawford,

553 U.S. at 202-03 (internal quotation marks omitted).                          Given

                                           60
that    limited         burden,    the         Court    deferred        to    the       Indiana

legislature’s           choice    of     how     to    best    serve     its    legitimate

interests.        See id. at 194-97, 203.

       That deference does not apply here because the evidence in

this case establishes that, at least in part, race motivated the

North Carolina legislature.                    Thus, we do not ask whether the

State has an interest in preventing voter fraud -- it does -- or

whether a photo ID requirement constitutes one way to serve that

interest -- it may -- but whether the legislature would have

enacted      SL    2013-381’s          photo    ID     requirement       if    it       had    no

disproportionate impact on African American voters.                             The record

evidence establishes that it would not have.

       The photo ID requirement here is both too restrictive and

not restrictive enough to effectively prevent voter fraud; “[i]t

is at once too narrow and too broad.”                       Romer v. Evans, 517 U.S.

620,   633     (1996);      see    Anderson,          460   U.S.   at    805    (rejecting

election law as “both too broad and too narrow”).                               First, the

photo ID requirement, which applies only to in-person voting and

not to absentee voting, is too narrow to combat fraud.                                  On the

one    hand,      the    State    has     failed       to   identify     even       a    single

individual who has ever been charged with committing in-person

voter fraud in North Carolina.                       See J.A. 6802.          On the other,

the General Assembly did have evidence of alleged cases of mail-

in    absentee      voter    fraud.            J.A.    1678,   6802.          Notably,        the

                                                61
legislature        also    had      evidence        that    absentee      voting       was    not

disproportionately             used    by    African       Americans;         indeed,    whites

disproportionately used absentee voting.                             J.A. 1796-97.            The

General Assembly then exempted absentee voting from the photo ID

requirement.         2013 N.C. Sess. Laws 381, pt. 4.                    This was so even

though members of the General Assembly had proposed amendments

to   require       photo       ID   for     absentee       voting,    N.C.      Gen.    Assemb.

Proposed Amend. No. A2, H589-AST-50 [v.2] (April 24, 2013), and

the bipartisan State Board of Elections 11 specifically requested

that    the      General       Assembly      remedy      the      potential     for     mail-in

absentee voter fraud and expressed no concern about in-person

voter fraud, J.A. 1678.

       The       photo    ID    requirement         is     also    too    broad,       enacting

seemingly         irrational        restrictions         unrelated       to    the     goal    of

combating fraud.           This overbreadth is most stark in the General

Assembly’s decision to exclude as acceptable identification all

forms       of   state-issued         ID    disproportionately           held    by     African

Americans.         See N.C. State Conf., 2016 WL 1650774, at *142.                            The

State has offered little evidence justifying these exclusions.

       11
       The North Carolina State Board of Elections is the state
agency responsible for administering the elections process and
overseeing campaign finance disclosure. N.C. Gen. Stat. § 163-
19 (2016); see also About Us, North Carolina State Board of
Elections, http://www.ncsbe.gov/about-us (last visited July 25,
2016).   The Board is composed of five members appointed by the
Governor, three of which belong to the same party as the
Governor. See N.C. Gen. Stat § 163-19.


                                               62
Review of the record further undermines the contention that the

exclusions are tied to concerns of voter fraud.                        This is so

because    voters   who   lack     qualifying     ID    under      SL 2013-381    may

apply for a free voter card using two of the very same forms of

ID excluded by the law.           See N.C. State Conf., 2016 WL 1650774,

at *26.     Thus, forms of state-issued IDs the General Assembly

deemed insufficient to prove a voter’s identity on Election Day

are sufficient if shown during a separate process to a separate

state official.       In this way, SL 2013-381 elevates form over

function,    creating     hoops    through      which   certain      citizens     must

jump with little discernable gain in deterrence of voter fraud. 12

      The State’s proffered justifications regarding restrictions

on early voting similarly fail.                 The State contends that one

purpose of SL 2013-381’s reduction in early voting days was to

correct    inconsistencies        among    counties     in   the    locations     and

hours of early voting centers.             J.A. 3325; 22348-50.         See, e.g.,

J.A. 3325 (senator supporting the law:                “what we’re trying to do

is   put   some   consistency      into   the    process     and    allow   for   the

      12Tellingly, as discussed above, it was only after Shelby
County that the General Assembly removed these IDs, retaining as
acceptable ID only those disproportionately held by whites.
N.C. State Conf., 2016 WL 1650774, at *142.        Further, the
General Assembly had before it recommendations from the State
Board of Elections that the law include some of the excluded
IDs. J.A. 6866, 7392. Thus, the record evidence indicates that
the General Assembly’s decision in the wake of Shelby County to
exclude certain IDs had less to do with combating fraud, and
more to do with the race of the ID holders.


                                          63
facilities to be similarly treated in one county as in being

[sic] all the counties”).              In some minor ways, SL 2013-381 does

achieve consistency in the availability of early voting within

each county.          See N.C. Gen. Stat. § 163-227.2(g) (mandating the

same days and hours within counties).

      But the record does not offer support for the view that SL

2013-381 actually achieved consistency in early voting among the

various counties.         For example, while the State contends that it

meant      to    eliminate     inconsistencies      between   counties       in   the

availability of Sunday early voting, see, e.g., J.A. 12997-98;

20943-44; 22348-49, SL 2013-381 offers no fix for that.                      Rather,

it permits the Board of Elections of each county to determine,

in   the    Board’s      discretion,     whether    to   provide    Sunday    hours

during early voting.           See J.A. 3325 (senator supporting the law:

“[the law] still leaves the county the choice of opening on a

Sunday or not opening on Sunday”); cf. N.C. Gen. Stat. § 163-

227.2(f)        (“A   county   board    may    conduct   [early    voting]    during

evenings or on weekends . . . .” (emphasis added)).                     Moreover,

as   discussed        above,   the   State     explicitly   and   problematically

linked these “inconsistencies” in Sunday early voting to race

and party.        J.A. 22348-49.

      In other ways, the challenged provision actually promotes

inconsistency in the availability of early voting across North

Carolina.        SL 2013-381 mandates that County Boards of Elections

                                          64
offer    at    least    the    same    number     of    aggregate      hours    of   early

voting as offered in 2010 for future non-presidential elections

and as offered in 2012 for future presidential elections.                              See

N.C. Gen. Stat. § 163-227.2(g2).                  If, as the State asserts, the

2010 and 2012 elections saw great disparities in voting hours

across    county       lines,    SL     2013-381       in     effect   codifies      those

inconsistencies         by    requiring     those      same    county-specific       hours

for all future elections.

       Moreover,        in     its     quest      for       “consistency”       in     the

availability       of    early        voting,     the       General    Assembly      again

disregarded the recommendations of the State Board of Elections.

The Board counseled that, although reducing the number of days

of   early     voting    might       ease   administrative        burdens      for   lower

turnout       elections,      doing    so   for   high-turnout         elections     would

mean     that     “North        Carolina        voters’       needs     will     not    be

accommodated.”          J.A. 1700.          The Board explained that reducing

early voting days would mean that “traffic will be increased on

Election Day, increasing demands for personnel, voting equipment

and other supplies, and resulting in likely increases to the

cost of elections.”            J.A. 1700; see also J.A. 1870-72 (reducing

early voting days, according to one County Board of Elections,

would lead to “increased costs, longer lines, increased wait

times, understaffed sites, staff burn-out leading to mistakes,



                                             65
and inadequate polling places; or, in a worst case scenario, all

of these problems together”).

       Concerning same-day registration, the State justifies its

elimination      as    a    means    to     avoid    administrative          burdens         that

arise when verifying the addresses of those who register at the

very end of the early voting period.                       These concerns are real.

Even   so,     the    complete       elimination          of    same-day         registration

hardly constitutes a remedy carefully drawn to accomplish the

State’s      objectives.            The     General       Assembly      had        before      it

alternative      proposals        that      would    have       remedied         the    problem

without abolishing the popular program.                         J.A. 1533-34; 6827-28.

The    State    Board       of    Elections         had    reported         that       same-day

registration         “was    a      success.”          J.A.       1529.           The        Board

acknowledged some of the conflicts between same-day registration

and mail verification, J.A. 1533-34, but clarified that “same

day registration does not result in the registration of voters

who are any less qualified or eligible to vote than” traditional

registrants,      J.A.      6826,     and    that     “undeliverable             verification

mailings       were    not       caused      by      the       nature       of        same    day

registration,”        J.A.       6827.        Indeed,          over   97%        of    same-day

registrants passed the mail verification process.                                 J.A. 6826.

The State Board of Elections believed this number would have

been higher had some counties not delayed the mail verification

process in violation of the law.                  J.A. 6826-28.

                                             66
      Again, the General Assembly ignored this advice.                           In other

circumstances we would defer to the prerogative of a legislature

to choose among competing policy proposals.                     But, in the broader

context     of     SL 2013-381’s         multiple          restrictions     on     voting

mechanisms       disproportionately        used       by    African     Americans,     we

conclude that the General Assembly would not have eliminated

same-day     registration          entirely     but-for       its   disproportionate

impact on African Americans.

      Turning to the elimination of out-of-precinct voting, the

State initially contended that the provision was justified to

“move[] the law back to the way it was”; i.e., the way it was

before it was broadened to facilitate greater participation in

the franchise by minority voters.                 J.A. 3307.           Recognizing the

weakness of that justification, during the litigation of this

case, the State asserted that the General Assembly abolished

out-of-precinct       voting        to   “permit[]          election     officials     to

conduct    elections    in     a    timely      and   efficient        manner.”      J.A.

22328.     Such post hoc rationalizations during litigation provide

little evidence as to the actual motivations of the legislature.

See Miss. Univ. for Women, 458 U.S. at 730 (analyzing whether

the   State’s     recited    justification            was    “the   actual       purpose”

(emphasis added)); United States v. Virginia, 518 U.S. 515, 533

(1996) (“The justification must be genuine, not hypothesized or

invented post hoc in response to litigation.”).

                                           67
     Finally,       the      General            Assembly’s      elimination          of

preregistration provides yet another troubling mismatch with its

proffered justifications.         Here, the record makes clear that the

General   Assembly      contrived      a    problem    in    order   to     impose   a

solution.     According to the State, the preregistration system

was too confusing for young voters.                SL 2013-381 thus sought, in

the words of a sponsor of the law, to “offer some clarity and

some certainty as to when” a “young person is eligible to vote,”

by eliminating preregistration altogether.                  J.A. 3317. 13    But, as

the district court itself noted, that explanation does not hold

water.      The   court   found   that       “pre-registration’s          removal    []

ma[d]e registration more complex” and prone to confusion.                       N.C.

State Conf., 2016 WL 1650774, at *116 (emphasis added).

     In   sum,    the     array   of       electoral   “reforms”     the     General

Assembly pursued in SL 2013-381 were not tailored to achieve its

purported justifications, a number of which were in all events

insubstantial.      In many ways, the challenged provisions in SL

2013-381 constitute solutions in search of a problem.                       The only

clear factor linking these various “reforms” is their impact on

     13 Strangely, the main evidence regarding this asserted
confusion appears to be a single senator’s testimony regarding
the experience of his high-school-aged son.       See J.A. 3317
(senator indicating his son was confused about when to vote with
pre-registration).   But even that testimony does not coherently
identify the problem that the law sought to remedy.     See J.A.
3335 (same senator indicating his son was not confused about
when to vote under pre-SL 2013-381 law).


                                           68
African American voters.           The record thus makes obvious that the

“problem” the majority in the General Assembly sought to remedy

was emerging support for the minority party.                       Identifying and

restricting    the     ways    African       Americans   vote     was   an    easy   and

effective way to do so.                We therefore must conclude that race

constituted a but-for cause of SL 2013-381, in violation of the

Constitutional         and     statutory          prohibitions     on     intentional

discrimination.



                                             V.

     As relief in this case, Plaintiffs ask that we declare the

challenged     provisions         in    SL    2013-381     unconstitutional          and

violative     of   §    2    of   the    Voting      Rights   Act,      and   that    we

permanently enjoin each provision.                    They further ask that we

exercise our authority pursuant to § 3 of the Voting Rights Act

to authorize federal poll observers and place North Carolina

under preclearance.           These requests raise issues of severability

and the proper scope of any equitable remedy.                      We address each

in turn.

                                             A.

    When      discriminatory           intent      impermissibly     motivates       the

passage of a law, a court may remedy the injury -- the impact of

the legislation -- by invalidating the law.                      See, e.g., Hunter,

471 U.S. at 231; Anderson, 375 U.S. at 400-04.                     If a court finds

                                             69
only    part   of   the     law    unconstitutional,             it     may   sever     the

offending provision and leave the inoffensive portion of the law

intact.    Leavitt v. Jane L., 518 U.S. 137, 139-40 (1996).                           State

law governs our severability analysis.                    Id.        In North Carolina,

severability turns on whether the legislature intended that the

law be severable, Pope v. Easley, 556 S.E.2d 265, 268 (N.C.

2001), and whether provisions are “so interrelated and mutually

dependent”     on   others      that     they    “cannot        be    enforced   without

reference to another,” Fulton Corp. v. Faulkner, 481 S.E.2d 8, 9

(N.C. 1997).

       We have held that discriminatory intent motivated only the

enactment of the challenged provisions of SL 2013-381.                             As an

omnibus bill, SL 2013-381 contains many other provisions not

subject to challenge here.               We sever the challenged provisions

from the remainder of the law because it contains a severability

clause, see 2013 N.C. Sess. Laws 381 § 60.1, to which we defer

under North Carolina law.               Pope, 556 S.E.2d at 268.                 Further,

the    remainder    of    the     law    “can[]     be    enforced        without”     the

challenged     provisions.              Fulton    Corp.,        481     S.E.2d    at    9.

Therefore, we enjoin only the challenged provisions of SL 2013-

381    regarding    photo    ID,   early        voting,    same-day       registration,

out-of-precinct voting, and preregistration.




                                           70
WYNN, Circuit Judge, with whom FLOYD,                        Circuit       Judge,      joins,
writing for the court as to Part V.B.:

                                                B.

       As to the appropriate remedy for the challenged provisions,

“once     a    plaintiff        has       established        the     violation          of   a

constitutional        or    statutory         right   in    the    civil      rights    area,

. . . court[s] ha[ve] broad and flexible equitable powers to

fashion a remedy that will fully correct past wrongs.”                             Smith v.

Town of Clarkton, 682 F.2d 1055, 1068 (4th Cir. 1982); see Green

v. Cty. Sch. Bd., 391 U.S. 430, 437–39 (1968) (explaining that

once     a    court        rules    that        an    official       act      purposefully

discriminates, the “racial discrimination [must] be eliminated

root    and   branch”).        In       other    words,     courts      are    tasked    with

shaping “[a] remedial decree . . . to place persons” who have

been harmed by an unconstitutional provision “in ‘the position

they would have occupied in the absence of [discrimination].’”

Virginia, 518 U.S. at 547 (last alteration in original) (quoting

Milliken v. Bradley, 433 U.S. 267, 280 (1977)).

       The    Supreme      Court    has       established    that       official     actions

motivated by discriminatory intent “ha[ve] no legitimacy at all

under our Constitution or under the [Voting Rights Act].”                                City

of Richmond v. United States, 422 U.S. 358, 378 (1975).                                 Thus,

the     proper    remedy        for       a     legal      provision       enacted       with

discriminatory        intent       is    invalidation.            See    id.    at     378–79


                                                71
(“[Official actions] animated by [a discriminatory] purpose have

no   credentials   whatsoever;   for   [a]cts    generally   lawful   may

become unlawful when done to accomplish an unlawful end.” (last

alteration in original) (internal quotation marks omitted)); see

also Hunter, 471 U.S. at 229, 231–33 (affirming the invalidation

of a state constitutional provision because it was adopted with

the intent of disenfranchising African Americans); Washington v.

Seattle Sch. Dist. No. 1, 458 U.S. 457, 466, 470–71, 487 (1982)

(affirming a permanent injunction of a state initiative that was

motivated by a racially discriminatory purpose); Anderson, 375

U.S. at 403–04 (indicating that the purposefully discriminatory

use of race in a challenged law was “sufficient to make it

invalid”).    Notably, the Supreme Court has invalidated a state

constitutional provision enacted with discriminatory intent even

when its “more blatantly discriminatory” portions had since been

removed.   Hunter, 471 U.S. at 232–33.

     Moreover, the fact that the General Assembly later amended

one of the challenged provisions does not change our conclusion

that invalidation of each provision is the appropriate remedy in

this case.    Specifically, in 2015, the General Assembly enacted

SL 2015-103, which amended the photo ID requirement and added

the reasonable impediment exception.       See 2015 N.C. Sess. Laws

103 § 8 (codified at N.C. Gen. Stat. §§ 163-82.8, 163-166.13,

163-166.15,   163-182.1B,   163-227.2).    Our    dissenting   colleague

                                  72
contends   that        even    though      we   all     agree    that    1)    the   General

Assembly       unconstitutionally           enacted      the     photo   ID     requirement

with racially discriminatory intent, and 2) the remedy for an

unconstitutional law must completely cure the harm wrought by

the    prior    law,    we     should      remand      for     the   district     court     to

consider       whether        the    reasonable          impediment          exception     has

rendered our injunction of that provision unnecessary.                                    But,

even if the State were able to demonstrate that the amendment

lessens the discriminatory effect of the photo ID requirement,

it would not relieve us of our obligation to grant a complete

remedy in this case.             That remedy must reflect our finding that

the    challenged       provisions       were        motivated    by    an    impermissible

discriminatory intent and must ensure that those provisions do

not impose any lingering burden on African American voters.                                 We

cannot discern any basis upon which this record reflects that

the reasonable impediment exception amendment fully cures the

harm    from     the    photo       ID     provision.           Thus,    remand      is    not

necessary.

       While remedies short of invalidation may be appropriate if

a provision violates the Voting Rights Act only because of its

discriminatory         effect,      laws    passed      with     discriminatory       intent

inflict a broader injury and cannot stand.                           See Veasey, 2016 WL

3923868, at *36, *36 n.66 (distinguishing between the proper

remedy for a law enacted with a racially discriminatory purpose

                                                73
and   the     more    flexible        range        of    remedies         that    should    be

considered if the law has only a discriminatory effect).

      Here,    the     amendment       creating          the    reasonable        impediment

exception      does     not        invalidate           or     repeal      the    photo     ID

requirement.         It therefore falls short of the remedy that the

Supreme Court has consistently applied in cases of this nature.

      Significantly, the burden rests on the State to prove that

its proposed remedy completely cures the harm in this case.                                See

Virginia,     518     U.S.    at    547   (noting            that   the    defendant       “was

obliged to show that its remedial proposal ‘directly address[ed]

and   relate[d]       to’     the    violation”          (alterations        in    original)

(quoting Milliken, 433 U.S. at 282)); Green, 391 U.S. at 439

(placing the burden on the defendant to prove that its plan

would effectively cure the violation).                          Here, nothing in this

record shows that the reasonable impediment exception ensures

that the photo ID law no longer imposes any lingering burden on

African      American        voters.          To        the    contrary,         the    record

establishes that the reasonable impediment exception amendment

does not so fundamentally alter the photo ID requirement as to

eradicate its impact or otherwise “eliminate the taint from a

law   that    was    originally      enacted        with       discriminatory          intent.”

Johnson v. Governor of Fla., 405 F.3d 1214, 1223 (11th Cir.

2005) (en banc).



                                           74
     For example, the record shows that under the reasonable

impediment exception, if an in-person voter cannot present a

qualifying form of photo ID -- which “African Americans are more

likely    to     lack”     --   the    voter   must    undertake   a    multi-step

process.       N.C. State Conf., 2016 WL 1650774, at *37.               First, the

voter must complete and sign a form declaring that a reasonable

impediment prevented her from obtaining such a photo ID, and

identifying that impediment. 14           N.C. Gen. Stat. § 163-166.15.         In

addition,      the    voter     must   present   one   of   several     alternative

types of identification required by the exception.                      Id. § 163-

166.15(c).       Then, the voter may fill out a provisional ballot,

which is subject to challenge by any registered voter in the

county.     Id. § 163-182.1B.          On its face, this amendment does not

fully eliminate the burden imposed by the photo ID requirement.

Rather, it requires voters to take affirmative steps to justify

to the state why they failed to comply with a provision that we

have declared was enacted with racially discriminatory intent

and is unconstitutional.

     In sum, the State did not carry its burden at trial to

prove     that       the   reasonable     impediment        exception    amendment


     14   While   declaring   that   a   reasonable   impediment
“prevent[ed]” her from obtaining an acceptable photo ID, the
voter must heed the form’s warning that “fraudulently or falsely
completing this form is a Class I felony” under North Carolina
law. J.A. 10368.


                                          75
completely cures the harm in this case, nor could it given the

requirements of the reasonable impediment exception as enacted

by the General Assembly.                  Accordingly, to fully cure the harm

imposed      by    the        impermissible    enactment       of   SL   2013-381,   we

permanently enjoin all of the challenged provisions, including

the photo ID provision.


DIANA GRIBBON MOTZ, Circuit Judge, writing for the court:

                                              C.

      As to the other requested relief, we decline to impose any

of the discretionary additional relief available under § 3 of

the Voting Rights Act, including imposing poll observers during

elections and subjecting North Carolina to ongoing preclearance

requirements.         See 52 U.S.C. § 10302(a), (c) (formerly 42 U.S.C.

§   1973a).         Such       remedies    “[are]     rarely    used”    and   are   not

necessary here in light of our injunction.                     Conway Sch. Dist. v.

Wilhoit, 854 F. Supp. 1430, 1442 (E.D. Ark. 1994).

      To be clear, our injunction does not freeze North Carolina

election law in place as it is today.                       Neither the Fourteenth

Amendment nor § 2 of the Voting Rights Act binds the State’s

hands   in    such        a    way.    The    North    Carolina      legislature     has

authority         under       the   Constitution      to   determine     the   “times,

places, and manner” of its elections.                      U.S. Const. art. I § 4.

In exercising that power, it cannot be that states must forever


                                              76
tip-toe around certain voting provisions disproportionately used

by   minorities.          Our    holding,           and    the    injunction         we    issue

pursuant to it, does not require that.                            If in the future the

General    Assembly      finds       that     legitimate         justifications        counsel

modification of its election laws, then the General Assembly can

certainly so act.          Of course, legitimate justifications do not

include a desire to suppress African American voting strength.



                                              ***

     It    is     beyond       dispute        that        “voting      is     of     the       most

fundamental            significance                under         our         constitutional

structure.”       Ill. State Bd. of Elections v. Socialist Workers

Party,    440    U.S.    173,    184        (1979).        For    “[n]o      right    is       more

precious in a free country than that of having a voice in the

election    of    those    who       make     the     laws       under      which,    as       good

citizens, we must live.              Other rights, even the most basic, are

illusory    if    the    right       to     vote    is     undermined.”          Wesberry        v.

Sanders, 376 U.S. 1, 17 (1964).                     We thus take seriously, as the

Constitution demands, any infringement on this right.                                We cannot

ignore     the    record        evidence           that,     because        of     race,       the

legislature      enacted       one     of    the     largest      restrictions            of   the

franchise in modern North Carolina history.

     We therefore reverse the judgment of the district court.

We   remand      the    case     for      entry      of     an    order      enjoining         the

                                              77
implementation of SL 2013-381’s photo ID requirement and changes

to early voting, same-day registration, out-of-precinct voting,

and preregistration.

                                           REVERSED AND REMANDED




                               78
DIANA GRIBBON MOTZ, Circuit Judge, dissenting as to Part V.B.:

        We have held that in 2013, the General Assembly, acting

with discriminatory intent, enacted a photo ID requirement to

become effective in 2016.                But in 2015, before the requirement

ever went into effect, the legislature significantly amended the

law.     North Carolina recently held two elections in which the

photo ID requirement, as amended, was in effect.                          The record,

however, contains no evidence as to how the amended voter ID

requirement affected voting in North Carolina.                      In view of these

facts    and    Supreme         Court    precedent    as    to    the   propriety     of

injunctive relief, I believe we should act cautiously.

       The Supreme Court has explained that “[a]n injunction is a

matter of equitable discretion; it does not follow from success

on the merits as a matter of course.”                      Winter v. Natural Res.

Defense Council Inc., 555 U.S. 7, 32 (2008); see also Weinberger

v. Romero-Barcelo, 456 U.S. 305 (1982).                        Given the “inherent

limitation upon federal judicial authority,” a court’s charge is

only    to   “cure        the   condition   that     offends      the   Constitution.”

Milliken       v.    Bradley,      433    U.S.     267,    282     (1977)     (internal

quotation marks omitted).

       If interim events have “cured the condition,” id., and a

defendant carries its “heavy burden” of demonstrating that the

wrong    will       not    be   repeated,   a    court     will    properly    deny   an

injunction of the abandoned practice.                      United States v. W.T.

                                            79
Grant,    345    U.S.    894,     896-97       (1953);     see       Kohl     by    Kohl     v.

Woodhaven Learning Ctr., 865 F.2d 930, 934 (8th Cir. 1989) (“A

change     in     circumstances          can      destroy       the     need         for     an

injunction.”).          Thus, a defendant’s voluntary cessation of an

unconstitutional        practice      or   amendment       of    an    unconstitutional

law    fundamentally      bears    “on     the    question      of    whether        a    court

should exercise its power to enjoin” the practice or law.                                  City

of    Mesquite    v.   Aladdin’s      Castle,      Inc.,    455       U.S.    283,       288-89

(1982).

       The remedy for an unconstitutional law must completely cure

the harm wrought by the prior law.                   But, a superseding statute

can have that effect.           See id.          And, where a governmental body

has already taken adequate steps to remedy an unconstitutional

law, courts “generally decline to add . . . a judicial remedy to

the heap.”       Winzler, 681 F.3d at 1211; cf. A. L. Mechling Barge

Lines, Inc. v. United States, 368 U.S. 324, 331 (1961) (“[S]ound

discretion       withholds      the      remedy    where        it    appears        that     a

challenged ‘continuing practice’ is, at the moment adjudication

is    sought,    undergoing       significant       modification             so    that     its

ultimate form cannot be confidently predicted.”).

       In 2015, two years after the enactment of the photo ID

requirement,      but     prior    to      its    implementation,            the     General

Assembly added the reasonable impediment exception to the photo

ID    requirement.        See     2015     N.C.    Sess.     Laws      103        § 8.      The

                                           80
exception provides that a voter without qualifying photo ID may

cast       a    provisional    ballot     after      declaring      under    penalty   of

perjury that he or she “suffer[s] from a reasonable impediment

that           prevents      [him]     from        obtaining     acceptable          photo

identification.”             N.C.    State    Conf.,    2016   WL    1650774,    at    *36

(internal         quotation    marks    omitted).        No    party    in    this    case

suggests that the legislature acted with discriminatory intent

when it enacted the reasonable impediment exception.

       The        majority     maintains,      however,       that    the    reasonable

impediment exception does not fully remedy the impact of the

photo ID requirement.                Perhaps not.        But, by its terms, the

exception          totally      excuses       the      discriminatory         photo     ID

requirement. 1         Of course, in practice, it may not do so.                 But on

this record, I believe we cannot assess whether, or to what

extent,          the      reasonable      impediment       exception         cures     the

unconstitutional 2013 photo ID requirement.


       1Recently, a court considering a similar reasonable
impediment exception suggested that the exception could remedy
an otherwise problematic photo ID requirement.          See South
Carolina v. United States, 898 F. Supp. 2d 30, 35-38 (D.D.C.
2012).   In South Carolina, a three-judge panel precleared a
photo ID requirement with a reasonable impediment exception
after finding that it would not “disproportionately and
materially burden racial minorities” as compared to the then-
existing identification requirement.    Id. at 38.    Here, North
Carolina’s reasonable impediment exception “is effectively a
codification of th[at] three-judge panel’s holding.” N.C. State
Conf., 2016 WL 1650774, at *12.      See also Veasey v. Abbott,
Civil Action No. 2:13-cv-193 (S.D. Tex. July 23, 2016).


                                              81
        Because the district court failed to find discriminatory

intent, it did not consider whether any unconstitutional effect

survived the 2015 amendment.                 Instead, it focused on whether the

law,        as   amended     in   2015,    burdened    voters     enough    to   sustain

claims under a § 2 results or an Anderson-Burdick analysis.                          Id.

at   *122,        *156.      Of    course,    this    is    not   the    standard   that

controls or the findings that bear on whether a court should

enjoin           an     unconstitutional       racially       discriminatory,        but

subsequently amended, law. 2

       Moreover,          additional       information      now   exists    that    goes

directly to this inquiry.                  For after trial in this case, the

State implemented the reasonable impediment exception in primary

elections in March and June of 2016.                       The parties and amici in

this case have urged on us anecdotal extra-record information

concerning the implementation of the exception during the March

election.             For example, Amicus supporting the Plaintiffs reports

that,       in    the    March    2016    primary    election,    poll    workers   gave

reasonable-impediment voters incorrect ballots and County Boards

        2
       This contrasts with our ability to assess, without remand,
whether the State demonstrated that SL 2013-381 would have been
enacted without considerations of race.     See supra, Part IV.
Although the district court did not shift the burden to the
State under Arlington Heights, it had already made extensive
findings of the relevant foundational facts regarding the
State’s proffered justifications.       We lack the equivalent
findings regarding what discriminatory impact less than a
“material   burden”   may  survive   the  reasonable   impediment
exception.


                                              82
of    Elections    were    inconsistent       about    what    they     deemed    a

“reasonable” impediment.            See Br. of Amicus Curiae Democracy

North   Carolina    in    Support   of    Appellants    at    8-32,    N.C.    State

Conf., ___ F.3d ___ (4th Cir. 2016) (No. 16-1468).                    In response,

the State maintains that “the vast majority” of these criticisms

“are inaccurate or misleading,” in part because Amicus completed

its   report   before     the   State    conducted    its    final    vote    count.

Appellee’s Resp. in Opp’n. to Mot. for Stay of J. and Inj.

Pending Appeal at 3-5, N.C. State Conf., ___ F.3d ___ (4th Cir.

2016) (No. 16-1468).            Of course, these submissions as to the

March election do not constitute evidence and we cannot consider

them as such.       Witters v. Washington Dep’t of Servs. for the

Blind, 474 U.S. 481, 488 n.3 (1986).            And for the June election,

we do not even have anecdotal information.

      Thus, we are faced with a statute enacted with racially

discriminatory intent, amended before ever implemented in a way

that may remedy that harm, and a record incomplete in more than

one respect.      Given these facts, I would only temporarily enjoin

the photo ID requirement and remand the case to the district

court to determine if, in practice, the exception fully remedies

the discriminatory requirement or if a permanent injunction is

necessary.     In my view, this approach is that most faithful to

Supreme Court teaching as to injunctive relief.



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