                               PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 14-1845


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

                Plaintiffs,

          and

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

                Intervenors/Plaintiffs – Appellants,

          v.

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

                Defendants – Appellees.

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

UNITED STATES OF AMERICA,

                Amicus Curiae,
BRENNAN CENTER FOR JUSTICE AT NYU SCHOOL OF LAW,

                Amicus Supporting Appellants,

JUDICIAL WATCH, INCORPORATED; ALLIED EDUCATIONAL FOUNDATION;
CHRISTINA KELLEY GALLEGOS-MERRILL,

                Amici Supporting Appellees.



                              No. 14-1856


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

                Plaintiffs – Appellants,

          and

NEW OXLEY HILL BAPTIST CHURCH; BAHEEYAH MADANY; JOHN DOE 1;
JANE DOE 1; JOHN DOE 2; JANE DOE 2; JOHN DOE 3; JANE DOE 3,

                Plaintiffs,

          v.

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

                Defendants – Appellees.




                                   2
------------------------------------

UNITED STATES OF AMERICA,

                Amicus Curiae,

BRENNAN CENTER FOR JUSTICE AT NYU SCHOOL OF LAW,

                Amicus Supporting Appellants,

JUDICIAL WATCH, INCORPORATED; ALLIED EDUCATIONAL FOUNDATION;
CHRISTINA KELLEY GALLEGOS-MERRILL,

                Amici Supporting Appellees.



                            No. 14-1859


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

                Plaintiffs – Appellants,

          and

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

                Intervenors/Plaintiffs,

          v.

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



                                 3
MCCRORY, in his official capacity as Governor of the state
of North Carolina,

                Defendants – Appellees.

−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−-------

UNITED STATES OF AMERICA,

                Amicus Curiae,

BRENNAN CENTER FOR JUSTICE AT NYU SCHOOL OF LAW,

                Amicus Supporting Appellants,

JUDICIAL WATCH, INCORPORATED; ALLIED EDUCATIONAL FOUNDATION;
CHRISTINA KELLEY GALLEGOS-MERRILL,

                Amici Supporting Appellees.



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-00861-TDS-JEP;
1:13-cv-00660-TDS-JEP)


Argued:   September 25, 2014              Decided: October 1, 2014


Before MOTZ, WYNN, and FLOYD, Circuit Judges.


Reversed in    part,  affirmed   in  part,  and  remanded  with
instructions by published opinion.       Judge Wynn wrote the
majority opinion, in which Judge Floyd joined. Judge Motz wrote
a dissenting opinion.


ARGUED:    Allison Jean Riggs, SOUTHERN COALITION FOR SOCIAL
JUSTICE, Durham, North Carolina; Penda Denise Hair, ADVANCEMENT
PROJECT, Washington, D.C.; Marc Erik Elias, PERKINS COIE LLP,
Washington, D.C., for Appellants.    Alexander McClure Peters,
NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina;
Thomas A. Farr, OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C.,
Raleigh, North Carolina, for Appellees.   Holly Aiyisha Thomas,

                                 4
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Amicus United States of America.      ON BRIEF: Anita S. Earls,
George E. Eppsteiner, SOUTHERN COALITION FOR SOCIAL JUSTICE,
Durham, North Carolina; Dale Ho, Julie A. Ebenstein, Sean Young,
New York, New York, Laughlin McDonald, ACLU VOTING RIGHTS
PROJECT, Atlanta, Georgia; Christopher Brook, ACLU OF NORTH
CAROLINA   LEGAL   FOUNDATION,  Raleigh,   North   Carolina,   for
Appellant League of Women Voters of North Carolina.      Elisabeth
C. Frost, Washington, D.C., Joshua L. Kaul, PERKINS COIE LLP,
Madison, Wisconsin; Edwin M. Speas, Jr., John W. O’Hale,
Caroline P. Mackie, POYNER SPRUILL LLP, Raleigh, North Carolina,
for Appellant Louis M. Duke. Edward A. Hailes, Jr., Denise D.
Lieberman, Donita Judge, Caitlin Swain, ADVANCEMENT PROJECT,
Washington, D.C.; Irving Joyner, Cary, North Carolina; Adam
Stein, TIN FULTON WALKER & OWEN, PLLC, Chapel Hill, North
Carolina; Daniel T. Donovan, Susan M. Davies, Bridget K.
O’Connor, K. Winn Allen, Kim Knudson, Jodi Wu, KIRKLAND & ELLIS
LLP, Washington, D.C., for Appellant North Carolina State
Conference of Branches of the NAACP. Robert C. Stephens, OFFICE
OF THE GOVERNOR OF NORTH CAROLINA, Raleigh, North Carolina; Karl
S. Bowers, Jr., BOWERS LAW OFFICE LLC, Columbia, South Carolina,
for Appellee Governor Patrick L. McCrory. Katherine A. Murphy,
NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina;
Phillip J. Strach, Michael D. McKnight, OGLETREE, DEAKINS, NASH,
SMOAK & STEWART, P.C., Raleigh, North Carolina, for Appellees
State of North Carolina and North Carolina State Board of
Election.    Molly J. Moran, Acting Assistant Attorney General,
Diana K. Flynn, Civil Rights Division, UNITED STATES DEPARTMENT
OF JUSTICE, Washington, D.C.; Ripley Rand, United States
Attorney, Greensboro, North Carolina, Gill P. Beck, Special
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Asheville, North Carolina, for Amicus United States of
America.      Samuel   Brooke,  SOUTHERN   POVERTY   LAW   CENTER,
Montgomery, Alabama; Michael C. Li, Jennifer L. Clark, Tomas
Lopez, THE BRENNAN CENTER FOR JUSTICE AT N.Y.U. SCHOOL OF LAW,
New York, New York, for Amicus The Brennan Center for Justice at
N.Y.U School of Law.       Chris Fedeli, JUDICIAL WATCH, INC.,
Washington, D.C.; H. Christopher Coates, LAW OFFICE OF H.
CHRISTOPHER COATES, Charleston, South Carolina; Bradley J.
Schlozman, HINKLE LAW FIRM LLC, Wichita, Kansas; Gene B.
Johnson, JOHNSON LAW FIRM, P.A., Arden, North Carolina, for
Amici    Judicial   Watch,   Incorporated,   Allied    Educational
Foundation, and Christina Kelley Gallegos-Merrill.




                                5
WYNN, Circuit Judge:

      The   right        to   vote    is     fundamental.           “No    right   is   more

precious in a free country than that of having a voice in the

election      of    those      who    make       the      laws   under    which,   as   good

citizens, we must live.               Other rights, even the most basic, are

illusory    if     the    right      to    vote      is    undermined.”       Wesberry    v.

Sanders, 376 U.S. 1, 17 (1964).                      And a tight timeframe before an

election does not diminish that right.

      “In decision after decision, [the Supreme] Court has made

clear that a citizen has a constitutionally protected right to

participate in elections on an equal basis with other citizens

in the jurisdiction.”                Dunn v. Blumstein, 405 U.S. 330, 336

(1972).     Congress sought to further ensure equal access to the

ballot box by passing the Voting Rights Act, which was aimed at

preventing “an inequality in the opportunities enjoyed by black

and   white    voters         to   elect     their        preferred      representatives.”

Thornburg v. Gingles, 478 U.S. 30, 47 (1986).

      On June 25, 2013, the Supreme Court lifted certain Voting

Rights Act restrictions that had long prevented jurisdictions

like North Carolina from passing laws that would deny minorities

equal access.        See Shelby Cnty., Ala. v. Holder, 133 S. Ct. 2612

(2013).       The    very      next       day,       North   Carolina      began   pursuing

sweeping voting reform—House Bill 589—which is at the heart of

this appeal.

                                                 6
      With House Bill 589, North Carolina imposed strict voter

identification requirements, cut a week off of early voting,

prohibited local election boards from keeping the polls open on

the final Saturday afternoon before elections, eliminated same-

day voter registration, opened up precincts to “challengers,”

eliminated pre-registration of sixteen- and seventeen-year-olds

in high schools, and barred votes cast in the wrong precinct

from being counted at all.

      In   response,       various       Plaintiffs      and     the    United    States

Government sued North Carolina, alleging that House Bill 589

violates    equal      protection        provisions       of     the    United    States

Constitution      as   well    as    the   Voting       Rights       Act.    Plaintiffs

sought to prevent House Bill 589 from taking effect by asking

the   district     court      for    a   preliminary       injunction.           Such   an

injunction would maintain the status quo to prevent irreparable

harm while the lawsuit plays itself out in the courts.

      But the district court refused.                   In so doing, the district

court    laid    out   what    it    believed      to    be    the     applicable   law.

Notably, however, the district court got the law plainly wrong

in    several    crucial      respects.         When     the     applicable      law    is

properly understood and applied to the facts as the district

court portrayed them, it becomes clear that the district court

abused     its   discretion         in   denying    Plaintiffs          a   preliminary

injunction and not preventing certain provisions of House Bill

                                            7
589 from taking effect while the parties fight over the bill’s

legality.        Accordingly, we reverse the district court’s denial

of the preliminary injunction as to House Bill 589’s elimination

of    same-day    registration      and     prohibition      on   counting    out-of-

precinct ballots.

       However,     we     affirm     the        district    court’s    denial     of

Plaintiffs’ request for a preliminary injunction with respect to

the following House Bill 589 provisions: (i) the reduction of

early-voting       days;    (ii)     the        expansion    of   allowable     voter

challengers; (iii) the elimination of the discretion of county

boards of elections to keep the polls open an additional hour on

Election    Day      in    “extraordinary           circumstances”;      (iv)     the

elimination of pre-registration of sixteen- and seventeen-year-

olds who will not be eighteen years old by the next general

election;    and    (v)    the   soft     roll-out     of    voter   identification

requirements to go into effect in 2016.                     With respect to these

provisions, we conclude that, although Plaintiffs may ultimately

succeed at trial, they have not met their burden of satisfying

all    elements     necessary       for    a     preliminary      injunction.      We

therefore affirm in part, reverse in part, and remand to the

district court with specific instructions to enter, as soon as




                                            8
possible, an order granting a preliminary injunction enjoining

enforcement of certain provisions of House Bill 589. 1



     I.     Background 2

     In spring 2013, the North Carolina General Assembly began

working on a voter identification law.           The House Committee on

Elections, chaired by Representative David R. Lewis, held public

hearings,    and   an   initial   version   of    House   Bill   589   was

introduced in the House on April 4.         In April, House Bill 589

was debated, amended, and advanced; it ultimately passed the

House essentially along party lines, with no support from any

African American representatives.

     In March 2013, before the bill was introduced to the house,

the various sponsors of House Bill 589 sent an e-mail to the

     1
       While the separate opinion is styled as a dissent, it
concurs with the majority opinion in affirming the district
court’s decision to deny an injunction as to multiple House Bill
589 provisions. We agree with a number of the concerns the
separate opinion raises as to all but two of the challenged
provisions—the elimination of same-day registration and out-of-
precinct voting.
     2
       As an appellate court, we neither re-weigh evidence nor
make factual findings.   And though we may, in this procedural
posture, call out clear error if the district court “ma[de]
findings without properly taking into account substantial
evidence to the contrary[,]” United States v. Caporale, 701 F.3d
128, 140 (4th Cir. 2012), we are taking the facts as they have
been depicted by the district court in North Carolina State
Conference of Branches of the NAACP v. McCrory, 997 F. Supp. 2d
322 (M.D.N.C. 2014).



                                    9
State Board of Elections asking for a “cross matching of the

registered       voters     in     [North      Carolina]       with   the     [DMV]    to

determine a list of voters who have neither a [North Carolina]

Driver’s License nor a [North Carolina] Identification Card.”

Id. at 357.         The legislators also wanted “that subset broken

down    into     different        categories       within    each     county    by    all

possible       demographics       that    [the      State    Board     of   Elections]

typically captures (party affiliation, ethnicity, age, gender,

etc.).”     McCrory, 997 F. Supp. 2d at 357.                    The State Board of

Elections sent the data in a large spreadsheet the next day.

       Later in March 2013, Representative Lewis sent a ten-page

letter to State Board of Elections Director Gary Bartlett asking

about   the     State     Board    of    Elections’      conclusion     that    612,955

registered voters lacked a qualifying photo identification.                            He

asked   the     State    Board     of    Elections      to   “provide   the    age    and

racial breakdown for voters who do not have a driver’s license

number listed.”          Id.      In April, Bartlett sent a nineteen-page

response along with a spreadsheet that included the requested

race data.       That same day, Speaker of the House Thom Tillis’s

general counsel e-mailed the State Board of Elections, asking

for    additional       race     data    on    people    who    requested      absentee

ballots in 2012; that data, too, the State Board of Elections

provided.



                                              10
     In late April 2013, House Bill 589 made its way to the

North Carolina Senate, passed first reading, and was assigned to

the Senate Rules Committee.       That committee took no action on

the bill for three months, until July 23.       “The parties do not

dispute that the Senate believed at this stage that [House Bill]

589 would have to be submitted to the United States Department

of Justice . . . for ‘pre-clearance’ under Section 5 of the

[Voting Rights Act], 42 U.S.C. § 1973c(a), because many North

Carolina    counties   were   ‘covered   jurisdictions’      under   that

Section.    However, at that time the United States Supreme Court

was considering a challenge to the . . . ability to enforce

Section 5.”    McCrory, 997 F. Supp. 2d at 336. 3

     On June 25, the Supreme Court issued its decision in Shelby

County, declaring the formula used to determine the Section 5

covered    jurisdictions   unconstitutional.    The   very    next   day,

Senator Thomas Apodaca, Chairman of the North Carolina Senate

Rules Committee, publicly stated, “So, now we can go with the

full bill.”    Id. at 336.    The contents of the “full bill” were

not disclosed at the time.

     3
       Under Section 5’s preclearance requirement, no change in
voting procedures in covered jurisdictions could take effect
until approved by federal authorities.     A jurisdiction could
obtain such preclearance only by proving that the change had
neither “the purpose [nor] the effect of denying or abridging
the right to vote on account of race or color.”       52 U.S.C.
§ 10304(a).



                                  11
     A meeting of the Rules Committee was subsequently scheduled

for July 23.     The night before the Rules Committee meeting, the

new bill, by then fifty-seven pages in length, was posted for

the members on the Rules Committee website.                 Unlike the original

bill, which focused mainly on voter identification, the amended

House Bill 589 expanded the list of restrictive provisions to

include   (1)    the     reduction      of    early-voting         days;    (2)     the

elimination     of   same-day     registration;       (3)     a    prohibition       on

counting out-of-precinct ballots; (4) an expansion of allowable

poll observers and voter challenges; (5) the elimination of the

discretion of county boards of elections to keep the polls open

an   additional         hour    on     Election      Day      in     extraordinary

circumstances; and (6) the elimination of pre-registration of

sixteen- and seventeen-year-olds who will not be eighteen years

old by the next general election.

     After    debate     on    July    23,    the   amended       bill    passed    the

committee and proceeded to the floor.                 On July 25, the Senate

began its session with the third reading of the substantially

amended House Bill 589.              Proponents and opponents of the bill

debated its provisions and various proposed amendments for four

hours.       “Several    Senators      characterized       the     bill    as     voter

suppression of minorities.”             McCrory, 997 F. Supp. 2d at 337.

Nevertheless, at the close of debate, a party-line vote sent

House Bill 589, as amended, back to the House for concurrence.

                                         12
      That same day, after the bill had been modified and passed

by the Senate, a State Board of Elections employee e-mailed data

to Representative Lewis, one of the bill’s House sponsors.                   The

data contained verification rates for same-day registration in

the 2010 and 2012 elections and information about the type of

identifications presented by same-day registrants.

      On the evening of July 25, the House received the Senate’s

version      of   House     Bill     589.        During     debate,   opponents

characterized       the    measure    “variously      as   voter   suppression,

partisan, and disproportionately affecting” African Americans,

young voters, and the elderly.              McCrory, 997 F. Supp. 2d at 337.

At   10:39   p.m.   that    night,   the     House   voted–again   along   party

lines–to concur in the Senate’s version of House Bill 589.

      The bill was ratified the next day, July 26, and presented

to Governor Patrick McCrory on July 29.                    The Governor signed

House Bill 589 into law on August 12, 2013.

      That very same day, Plaintiffs filed lawsuits challenging

certain House Bill 589 provisions in the federal district court

for the Middle District of North Carolina.                  Plaintiffs alleged

that the challenged provisions violated both the United States

Constitution and the Voting Rights Act.                    Soon thereafter, in

September 2013, the United States filed a lawsuit challenging

certain House Bill 589 provisions exclusively under the Voting



                                        13
Rights Act.         And finally, a group of young voters intervened,

also asserting constitutional claims.

        The    lawsuits    were     consolidated,        the    parties     undertook

discovery, and Plaintiffs moved for a preliminary injunction.

House Bill 589 contains numerous provisions, only some of which

Plaintiffs      challenge.        Specifically,     Plaintiffs          challenge   the

legality of, and asked the court to enjoin: the elimination of

same-day voter registration; the elimination of out-of-precinct

voting; the reduction of early-voting days; an increase in at-

large observers at the polls and the deputizing of any resident

to   challenge      ballots   at     the   polls;   the        elimination    of    the

discretion of county boards of elections to extend poll hours

under    extraordinary       circumstances;       and    the     soft    roll-out    of

voter identification requirements to go into effect in 2016.



               A. Same-Day Registration

        In 2007, the General Assembly passed legislation permitting

same-day registration at early-voting sites.                      The law provided

that “an individual who is qualified to register to vote may

register in person and then vote at [an early-voting] site in

the person’s county of residence during the period for [early]

voting provided under [Section] 163-227.2.”                       2007 N.C. Sess.

Laws    253,    §   1   (codified    at    N.C.   Gen.    Stat.    §     163-82.6A(a)

(2008)).        The law required a prospective voter to complete a

                                           14
voter-registration form and produce a document to prove his or

her current name and address.          Id. (codified at N.C. Gen. Stat.

§ 163-82.6A(b) (2008)).

       If the registrant wanted to vote immediately, he or she

could     “vote   a   retrievable     absentee     ballot       as     provided     in

[Section]     163-227.2     immediately       after     registering.”              Id.

(codified at N.C. Gen. Stat. § 163-82.6A(c) (2008)).                     Within two

business days, both the pertinent county board of elections and

the State Board of Elections were required to verify the voter’s

driver’s license or social security number, update the database,

proceed to verify the voter’s proper address, and count the vote

unless it was determined that the voter was not qualified to

vote.    Id. (codified at N.C. Gen. Stat. § 163-82.6A(d) (2008)).

       House Bill 589 eliminated same-day registration.                      A voter’s

registration must now be postmarked at least twenty-five days

before Election Day or, if delivered in person or via fax or

scanned document, received by the county board of elections at a

time    established    by   the     board.       N.C.    Gen.        Stat.    §   163-

82.6(c)(1)-(2).

       Plaintiffs’     expert     presented    unrebutted        testimony        that

African     American      North     Carolinians         have     used         same-day

registration at a higher rate than whites in the three federal

elections during which it was offered.                Specifically, in 2012,

13.4% of African American voters who voted early used same-day

                                       15
registration, as compared to 7.2% of white voters; in the 2010

midterm, the figures were 10.2% and 5.4%, respectively; and in

2008, 13.1% and 8.9%.          The district court therefore concluded

that the elimination of same-day registration would “bear more

heavily    on   African-Americans      than   whites.”     McCrory,   997     F.

Supp. 2d at 355.



            B. Out-of-Precinct Voting

     In    2002,   Congress   passed    the   Help   America   Vote   Act,    42

U.S.C. §§ 15301-15545.        Under the Help America Vote Act, states

are required to offer provisional ballots to Election Day voters

who changed residences within thirty days of an election but

failed to report the move to their county board of elections.

See 42 U.S.C. § 15482(a).        However, such provisional ballots are

only required to be counted “in accordance with State law.”                  Id.

§ 15482(a)(4).

     In    response,   the    North   Carolina   General   Assembly    passed

Session Law 2005-2, removing the requirement that voters appear

in the proper precinct on Election Day in order to vote.                 2005

N.C. Sess. Law 2, § 2 (codified at N.C. Gen. Stat. § 163-55(a)

(2006)).    The law provided that “[t]he county board of elections

shall count [out-of-precinct provisional ballots] for all ballot

items on which it determines that the individual was eligible



                                       16
under State or federal law to vote.”                    Id. § 4 (codified at N.C.

Gen. Stat. § 163-166.11(5) (2006)).

       The General Assembly made a finding when it adopted the

mechanism in SL 2005-2 that “‘of those registered voters who

happened    to    vote       provisional       ballots       outside    their       resident

precincts on the day of the November 2004 General Election, a

disproportionately            high    percentage         were     African-American.’”

McCrory, 997 F. Supp. 2d at 368 (citation omitted).

       The district court found that (1) between the years 2006

and 2010, an average of 17.1% of African Americans in North

Carolina moved within the State, as compared to only 10.9% of

whites; and (2) 27% of poor African Americans in North Carolina

lack    access    to     a    vehicle,   compared       to    8.8%     of    poor    whites.

Also,    the     court       accepted    the    determinations          of     Plaintiffs’

experts    that        “the     prohibition       on     counting       out-of-precinct

provisional       ballots        will     disproportionately                affect     black

voters.”       Id. at 366.           According to calculations the district

court accepted, the total number of African Americans using out-

of-precinct      voting       represents       0.342%    of     the    African      American

vote in that election.               The total share of the overall white

vote that voted out-of-precinct was 0.21%.                       Id.        House Bill 589

bars county boards of elections from counting such ballots.




                                           17
              C. Early Voting

      “No-excuse”        early    voting       was   established       for     even-year

general elections in North Carolina beginning in 2000.                                  1999

N.C. Sess. Law 455, § 1 (codified at N.C. Gen. Stat. §§ 163-

226(a1), 163-227.2(a1) (2000)).                  At that point, a registered

voter could present herself at her county board of elections

office    “[n]ot       earlier   than    the    first    business      day    after     the

twenty-fifth day before an election . . . and not later than

5:00 p.m. on the Friday prior to that election” to cast her

ballot.     N.C. Gen. Stat. § 163-227.2(b) (2000).

      After      the     2000    election       cycle,    the     General          Assembly

expanded no-excuse early voting to all elections.                             2001 N.C.

Sess. Law 337, § 1.             It also amended the early-voting period so

that voters could appear at the county board of elections office

to   vote     “[n]ot     earlier    than       the   third    Thursday        before     an

election . . . and not later than 1:00 P.M. on the last Saturday

before    that     election.”           2001    N.C.    Sess.    Law    319,        §   5(a)

(codified at N.C. Gen. Stat. § 163-227.2(b) (2002)).                          Under this

law, county boards of elections were required to remain open for

voting until 1:00 p.m. on that final Saturday, but retained the

discretion to allow voting until 5:00 p.m.                      Id.    They were also

permitted to maintain early-voting hours during the evening or

on   weekends     throughout      the    early-voting        period.         Id.    §   5(b)

(codified at N.C. Gen. Stat. § 163-227.2(f) (2002)).

                                           18
       House Bill 589 changes the law to allow only ten days of

early voting.        It also eliminates the discretion county boards

of elections had to stay open until 5:00 p.m. on the final

Saturday of early voting.

       The district court found that in 2010, 36% of all African

American    voters    that       cast    ballots          utilized    early      voting,      as

compared    to    33.1%     of   white     voters.           By     comparison,        in    the

presidential elections of 2008 and 2012, over 70% of African

American voters used early voting compared to just over 50% of

white voters.



               D. Poll Observers and Challengers

       North    Carolina     law    permits          the    chair    of   each    political

party in every county to “designate two observers to attend each

voting place at each primary and election.”                          N.C. Gen. Stat. §

163-45(a).       House Bill 589 allows the chair of each county party

to “designate 10 additional at-large observers who are residents

of that county who may attend any voting place in that county.”

2013 N.C. Sess. Law 381, § 11.1 (codified at N.C. Gen. Stat. §

163-45(a)).         “Not     more       than        two    observers      from    the       same

political party shall be permitted in the voting enclosure at

any time, except that in addition one of the at-large observers

from each party may also be in the voting enclosure.”                              Id.       The

list   of   at-large       observers      must        be   “provided      by     the    county

                                               19
director     of   elections   to   the   chief   judge      [for   each   affected

precinct].”       Id. (codified at § 163-45(b)).

       In conjunction with the addition of at-large observers, the

law now permits any registered voter in the county to challenge

a ballot on Election Day.            Id. § 20.2 (codified at N.C. Gen.

Stat. § 163-87)).        And during early voting, any state resident

may now challenge ballots.           Id. § 20.1 (codified at N.C. Gen.

Stat. § 163-84)).



             E. County Boards of Elections Discretion to Keep the
                Polls Open

       Under North Carolina law, the polls on Election Day are to

remain open from 6:30 a.m. until 7:30 p.m.                   N.C. Gen. Stat. §

163-166.01.       Beginning in 2001, each county board of elections

had the power to “direct that the polls remain open until 8:30

p.m.” in “extraordinary circumstances.”               2001 N.C. Sess. Laws

460, § 3 (codified at N.C. Gen. Stat. § 163-166 (2002)).                     House

Bill   589   eliminates    the     discretion    of   the    county   boards   of

elections by deleting the “extraordinary circumstances” clause.

2013 N.C. Sess. Law 381, § 33.1.

       The law now provides “If the polls are delayed in opening

for more than 15 minutes, or are interrupted for more than 15

minutes after opening, the State Board of Elections may extend

the closing time by an equal number of minutes.                    As authorized


                                         20
by law, the State Board of Elections shall be available either

in person or by teleconference on the day of election to approve

any such extension.”          N.C. Gen. Stat. § 163-166.01.



                F. Socioeconomic Disparities in North Carolina

      The district court found that Plaintiffs’ expert testimony

“demonstrate[d] that black citizens of North Carolina currently

lag   behind       whites    in   several      key   socioeconomic    indicators,

including          education,       employment,          income,     access        to

transportation,        and   residential       stability.”     McCrory,      997   F.

Supp.      2d     at   348.          Plaintiffs       presented      “unchallenged

statistics,” for example, that (1) as of 2011-12, 34% of African

American North Carolinians live below the federal poverty level,

compared to 13% of whites; (2) as of the fourth quarter of 2012,

unemployment       rates     in   North   Carolina    were   17.3%    for    African

Americans and 6.7% for whites; (3) 15.7% of African American

North Carolinians over age 24 lack a high school degree, as

compared to 10.1% of whites; (4) 27% of poor African American

North Carolinians do not have access to a vehicle, compared to

8.8% of poor whites; and (5) 75.1% of whites in North Carolina

live in owned homes as compared to 49.8% of African Americans.

Id.   at   348     n.27.      The   district     court    accepted    that   “North

Carolina’s history of official discrimination against blacks has



                                          21
resulted in current socioeconomic disparities with whites.”                                    Id.

at 366.



       II.     Standard of Review

       The     district      court       made     these       and     other     findings       and

conclusions       in    an     opinion      and       order    filed     August       8,    2014.

Therein,       the     district          court    denied        completely        Plaintiffs’

request for a preliminary injunction.                         Plaintiffs in turn filed

an    Emergency       Motion    for      Injunction          Pending    Appeal,       which     we

denied,      instead    granting          Plaintiffs’         motion    to    expedite       this

appeal.

       We    evaluate        the     district         court’s        decision    to     deny     a

preliminary          injunction          “for         an     abuse      of      discretion[,]

review[ing]       the    district         court’s          factual    findings     for      clear

error and . . . its legal conclusions de novo.”                                    Pashby v.

Delia, 709 F.3d 307, 319 (4th Cir. 2013) (internal quotation

marks    and     citations         omitted).          A     district    court     abuses       its

discretion when it misapprehends or misapplies the applicable

law.     See, e.g., Centro Tepeyac v. Montgomery Cnty., 722 F.3d

185, 188 (4th Cir. 2013)(en banc).                           “Clear error occurs when,

although there is evidence to support it, the reviewing court on

the     entire       evidence       is    left        with    the     definite        and   firm

conviction that a mistake has been committed.”                            United States v.



                                                 22
Harvey, 532 F.3d 326, 336 (4th Cir. 2008)(internal quotation

marks and citations omitted).



       III. Preliminary Injunction Analysis

       A   preliminary       injunction      may       be    characterized           as   being

either prohibitory or mandatory.                   Here, Plaintiffs assert that

the    preliminary     injunction         they       seek      is     prohibitory         while

Defendants claim it is mandatory, which “in any circumstance is

disfavored.”      Taylor v. Freeman, 34 F.3d 266, 270 n.2 (4th Cir.

1994).

       Whereas    mandatory         injunctions             alter     the      status       quo,

prohibitory      injunctions       “aim   to     maintain           the    status     quo      and

prevent     irreparable       harm    while      a     lawsuit        remains        pending.”

Pashby, 709 F.3d at 319.              We have defined the status quo for

this   purpose    to   be    “the    last     uncontested           status      between        the

parties which preceded the controversy.”                        Id. at 320 (internal

quotation      marks   and    citation      omitted).           “To       be   sure,      it    is

sometimes      necessary      to     require       a    party        who       has    recently

disturbed the status quo to reverse its actions, but . . .

[s]uch an injunction restores, rather than disturbs, the status

quo ante.”       Aggarao v. MOL Ship Mgmt. Co., 675 F.3d 355, 378

(4th Cir. 2012) (internal quotation marks and citation omitted).

       Here,     Plaintiffs        brought       their         lawsuits          challenging

elements of House Bill 589 on the very same day it was signed

                                            23
into law—August 12, 2013.                   Plaintiffs then filed motions seeking

to     enjoin       House        Bill       589’s     “elimination     of      [same-day

registration],         out-of-precinct           provisional       voting,    and     pre-

registration[, and] its cutback of early voting.”                          McCrory, 997

F. Supp. 2d at 339 (emphasis added).                    Without doubt, this is the

language      and     stuff      of     a    prohibitory    injunction       seeking    to

maintain the status quo.

       To   win     such     a    preliminary         injunction,    Plaintiffs       must

demonstrate that (1) they are likely to succeed on the merits;

(2)    they     will       likely       suffer       irreparable    harm     absent    an

injunction; (3) the balance of hardships weighs in their favor;

and (4) the injunction is in the public interest.                             Winter v.

Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).



              IV. Preliminary Injunction Denied On Certain
                        House Bill 589 Provisions

       At the outset, we determine that Plaintiffs have failed to

establish at least one element necessary to win a preliminary

injunction with respect to the following provisions of House

Bill   589:     (i)    the       reduction      of   early-voting    days;     (ii)    the

expansion of allowable voter challengers; (iii) the elimination

of the discretion of county boards of elections to keep the

polls open an additional hour on Election Day in “extraordinary

circumstances”;        (iv)       the       elimination    of   pre-registration       of


                                               24
sixteen- and seventeen-year-olds who will not be eighteen years

old by the next general election; and (v) the soft roll-out of

voter identification requirements to go into effect in 2016.

       With respect to early voting, we are convinced that the

significant risk of a substantial burden to the State tips the

balance of hardships in its favor.                 Were we to enjoin House Bill

589’s reduction in early-voting days, early voting would need to

begin in approximately two weeks. We conclude that this very

tight timeframe represents a burden not only on the State, but

also    on    the   county    boards     of    elections.         The   balance    of

hardships thus favors denying a preliminary injunction as to

early voting.

       With respect to pre-registration of sixteen- and seventeen-

year-olds, as the district court correctly noted, only citizens

eighteen years and older may vote.                 The State’s refusal to pre-

register sixteen- and seventeen-year-olds will, therefore, not

harm citizens who may vote in the upcoming general election.

The district court therefore did not abuse its discretion in

determining that, while Plaintiffs could well succeed on this

claim    at    trial,      they   have   not       shown   that   “they    will    be

irreparably harmed before trial absent an injunction.”                     McCrory,

997 F. Supp. 2d at 378.

       Regarding     the     elimination      of    the    discretion     of   county

boards of elections to keep the polls open an additional hour on

                                         25
Election        Day   in    “extraordinary          circumstances,”         the   district

court did not abuse its discretion in finding that Plaintiffs

have failed to show that they will be irreparably harmed by this

provision in the upcoming election.                    This is particularly true,

as   the   district        court    noted,    given     that    the       State   Board    of

Elections “retains the ability to make up significant losses in

time by ordering the polls to remain open on the event of a

delay.”        Id. at 380.      Again, this is not to say that Plaintiffs

will     not     ultimately        succeed    with     their        challenge     to     this

provision at trial.           They simply have not shown irreparable harm

for purposes of the preliminary injunction.

       With respect to the soft roll-out of voter identification

requirements to go into effect in 2016, as the district court

noted, Plaintiffs did provide evidence that a husband and wife

were improperly advised that they needed a photo identification

in order to vote in the May 2014 primary.                      McCrory, 997 F. Supp.

2d at 377.            While that couple was certainly misinformed, and

while that fact raises a red flag, Plaintiffs cannot escape the

fact that even that couple was, in fact, allowed to vote.                                 Id.

While we share Plaintiffs’ concern that requiring poll workers

to implement the soft rollout without adequate training might

result     in    some      confusion,    we    are     unable       to    find    that    the

district court committed clear error in deeming this argument

“speculative.”             McCrory,     997    F.    Supp.     2d    at    377.        Again,

                                              26
Plaintiffs        may   well        succeed    with        their    challenge         to     the

identification law at trial.              We hold only that, for purposes of

the upcoming election, they have not shown irreparable injury.

     Finally, with respect to House Bill 589’s poll challenger

and observer provision, we agree with the district court that

“African-American voters in North Carolina and elsewhere have

good reason to be concerned about intimidation and other threats

to their voting rights.              Any intimidation is unlawful and cannot

be tolerated, and courts must be vigilant to ensure that such

conduct is rooted out where it may appear.”                              McCrory, 997 F.

Supp. 2d at 380.        Nevertheless, the district court did not abuse

its discretion in finding that Plaintiffs have not shown that

any such irreparable harm is likely to occur in the upcoming

election.         The   district        court       found    that       “Plaintiffs         have

provided     no    basis    to       suggest        that    poll    observers         or     any

challenger(s) will abuse their statutory power.”                           Id.    Although

we are skeptical as to the ultimate accuracy of this prediction,

we cannot say that the district court committed clear error.

     We do not mean to suggest that Plaintiffs cannot prove and

eventually        succeed      on     their        challenges      to     all    of        these

provisions when their case goes to trial.                            Indeed, a proper

application of the law to a more developed factual record could

very well result in some or all of the challenged House Bill 589

provisions being struck down.                  At this point in time, however,

                                              27
we hold that, for purposes of a preliminary injunction as to

this November’s election and based on the facts as found by the

district court for the limited purpose of addressing Plaintiffs’

request for a preliminary injunction, the district court did not

abuse its discretion in determining that Plaintiffs have not

shown that the balance of hardships tips in their favor as to

early voting or that they will suffer irreparable harm as to the

other provisions discussed above.



              V. Analysis Of Same-Day Registration and
                  Out-of-Precinct Voting Challenges

       We now turn to the remaining two challenged provisions of

House Bill 589: the elimination of same-day registration and the

prohibition on counting out-of-precinct ballots.                       We begin our

analysis by evaluating Plaintiffs’ likelihood of success on the

merits of their Section 2 claims.                Determining that Plaintiffs

have shown that they are likely to succeed on the merits, we

then   proceed     to    the    remaining     elements     of    the     preliminary

injunction    analysis:        whether   Plaintiffs   are       likely    to   suffer

irreparable      harm;    whether    the      injunction    is    in     the   public

interest; and finally, whether the balance of hardships tips in

Plaintiffs’ favor.




                                         28
          A. Likelihood of Success on the Merits on Section 2

      Section 2 of the Voting Rights Act forbids any “standard,

practice, or procedure” that “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)   (formerly

codified at 42 U.S.C. § 1973(a)).                       “A violation of subsection

(a) is established if, based on the totality of circumstances,

it is shown that the political processes leading to nomination

or   election     in    the      State     or    political    subdivision      are   not

equally open to participation by” citizens of protected races

“in that [they] have less opportunity than other members of the

electorate to participate in the political process and to elect

representatives of their choice.”                    52 U.S.C. § 10301(b).

      With      Section       2,     Congress         effectuated     a   “permanent,

nationwide      ban    on    racial      discrimination”       because    “any    racial

discrimination in voting is too much.”                    Shelby Cnty., 133 S. Ct.

at 2631.     Accordingly, Section 2 “prohibits all forms of voting

discrimination”        that      lessen     opportunity       for   minority     voters.

Gingles, 478 U.S. at 45 n.10.

      “Both the Federal Government and individuals” may sue to

enforce      Section        2,     under        which     “injunctive     relief     is

available . . . to block voting laws from going into effect.”

Shelby Cnty., 133 S. Ct. at 2619.                        Thus, in two very recent

cases, courts granted injunctive relief to plaintiffs with vote-

                                                29
denial claims where state election laws less sweeping than North

Carolina’s had recently been passed.             Ohio State Conference of

N.A.A.C.P. v. Husted, __ F. Supp. 2d __, 2014 WL 4377869 (S.D.

Ohio 2014), aff’d, No. 14–3877, 2014 WL 4724703 (6th Cir. Sept.

24, 2014), stayed, No. 14A336, Order List 573 U.S., 2014 WL

4809069 (U.S. Sept. 29, 2014); Frank v. Walker, __ F. Supp. 2d.

__, 2014 WL 1775432 (E.D. Wis. 2014), stayed, 2014 WL 4494153

(7th Cir. Sept. 12, 2014).

     Under Section 2 as it exists today, showing intentional

discrimination is unnecessary. 4        Instead, a Section 2 violation

can “be established by proof of discriminatory results alone.”

Chisom v. Roemer, 501 U.S. 380, 404 (1991).               Thus, the “right”

Section 2 inquiry “is whether ‘as a result of the challenged

practice    or   structure   plaintiffs      do     not     have    an   equal

opportunity to participate in the political processes and to

elect candidates of their choice.’”              Gingles, 478 U.S. at 44

(footnote   omitted)(quoting   S.Rep.      No.    97–417,    97th    Cong.2nd

Sess. 28 (1982), U.S. Code Cong. & Admin. News 1982, p. 206).

     4
        The Supreme Court had previously read an intent
requirement into Section 2, but Congress quickly amended the law
to reject that interpretation. See, e.g., Gingles, 478 U.S. at
43-44 (noting that Congress “dispositively reject[ed] the
position of the plurality in Mobile v. Bolden, 446 U.S. 55, 100
S. Ct. 1490, 64 L.Ed.2d 47 (1980), which required proof that the
contested electoral practice or mechanism was adopted or
maintained with the intent to discriminate against minority
voters”).



                                   30
In other words, “[t]he essence of a [Section] 2 claim is that a

certain    electoral         law,   practice,          or   structure       interacts      with

social and historical conditions to cause an inequality in the

opportunities enjoyed by black and white voters to elect their

preferred representatives.”                 Id. at 47.

       Section 2’s use to date has primarily been in the context

of    vote-dilution          cases.             “Vote       dilution      claims     involve

challenges           to     methods        of        electing       representatives—like

redistricting         or    at-large       districts—as         having      the   effect    of

diminishing          minorities’      voting         strength.”        Husted,      2014    WL

4724703, at *24.              The district court in this case correctly

noted that there is a paucity of appellate case law evaluating

the   merits     of       Section   2      claims     in    the    vote-denial      context.

McCrory,       997    F.    Supp.     2d    at    346.        It    may   well     be    that,

historically, Section 2 claims focused on vote dilution.                                    But

the predominance of vote dilution in Section 2 jurisprudence

likely stems from the effectiveness of the now-defunct Section 5

preclearance requirements that stopped would-be vote denial from

occurring in covered jurisdictions like large parts of North

Carolina.       Even the district court recognized as much.                        Id.

       The facts of this case attest to the prophylactic success

of    Section    5’s       preclearance         requirements.          It    appears      that

Section 5, which required covered jurisdictions to prove that a

change    in    electoral       law     had      neither     “the    purpose      [nor]    the

                                                31
effect of denying or abridging the right to vote on account of

race or color,” 52 U.S.C. § 10304(a), was the only reason House

Bill 589’s sponsors did not reveal the “full bill” to the public

until after the Shelby County decision came down.                      McCrory, 997

F. Supp. 2d at 336.

     Nonetheless,        despite            the     success     of     Section    5’s

preclearance requirement at tamping down vote denial in covered

jurisdictions, Section 2’s use to date has not been entirely

dilution-focused.        Rather, courts have entertained vote-denial

claims     regarding         a    wide      range     of   practices,      including

restrictive voter identification laws (Frank, 2014 WL 1775432);

unequal    access   to   voter        registration      opportunities     (Operation

PUSH v. Allain, 674 F. Supp. 1245 (N.D. Miss. 1987), aff’d sub

nom, Operation PUSH v. Mabus, 932 F.2d 400 (5th Cir. 1991));

unequal access to polling places (Brown v. Dean, 555 F. Supp.

502 (D.R.I. 1982)); and omnibus laws combining registration and

voting restrictions (Husted, 2014 WL 4377869, aff’d, 2014 WL

4724703).

     Indeed, Section 2’s plain language makes clear that vote

denial is precisely the kind of issue Section 2 was intended to

address.    Section      2       of   the    Voting    Rights    Act    forbids   any

“standard, practice, or procedure” that “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).       See

                                             32
also Gingles, 478 U.S. at 45 n.10 (“Section 2 prohibits all

forms of voting discrimination, not just vote dilution.”).

     Further,            the    principles      that     make    vote      dilution

objectionable under the Voting Rights Act logically extend to

vote denial.          Everyone in this case agrees that Section 2 has

routinely      been      used   to   address    vote   dilution—which   basically

allows all voters to ‘sing’ but forces certain groups to do so

pianissimo.          Vote denial is simply a more extreme form of the

same pernicious violation—those groups are not simply made to

sing quietly; instead their voices are silenced completely.                        A

fortiori, then, Section 2 must support vote-denial claims.

     Justice Scalia has provided a helpful illustration of what

a Section 2 vote-denial claim might look like:

     If, for example, a county permitted voter registration
     for only three hours one day a week, and that made it
     more difficult for blacks to register than whites,
     blacks would have less opportunity “to participate in
     the political process” than whites, and [Section] 2
     would therefore be violated . . . .

Chisom, 501 U.S. at 408 (Scalia, J., dissenting).

     Based on our reading of the plain language of the statute

and relevant Supreme Court authority, we agree with the Sixth

Circuit       that   a    Section    2   vote-denial    claim   consists    of   two

elements:

          •    First, “the challenged ‘standard, practice, or
               procedure’ must impose a discriminatory burden on
               members of a protected class, meaning that
               members   of  the  protected  class   ‘have  less

                                           33
            opportunity than other members of the electorate
            to participate in the political process and to
            elect representatives of their choice.’” Husted,
            2014 WL 4724703, at *24 (quoting 42 U.S.C. §
            1973(a)-(b));
        •   Second, that burden “must in part be caused by or
            linked to ‘social and historical conditions’ that
            have or currently produce discrimination against
            members of the protected class.”     Id. (quoting
            Gingles, 478 U.S. at 47).

      “In assessing both elements, courts should consider ‘the

totality of circumstances.’”     Id. at *24 (quoting 42 U.S.C. §

1973(b)).    In evaluating Section 2 claims, courts have looked to

certain “typical” factors pulled directly from the Voting Rights

Act’s legislative history:

  •   The   history   of  voting-related  discrimination   in  the
      pertinent State or political subdivision;
  •   The extent to which voting in the elections of the
      pertinent State or political subdivision is racially
      polarized;
  •   The extent to which the State or political subdivision has
      used voting practices or procedures that tend to enhance
      the opportunity for discrimination against the minority
      group, such as unusually large election districts, majority
      vote requirements, and prohibitions against bullet voting;
  •   The exclusion of members of the minority group from
      candidate slating processes;
  •   The extent to which minority group members bear the effects
      of past discrimination in areas such as education,
      employment, and health, which hinder their ability to
      participate effectively in the political process;
  •   The use of even subtle racial appeals in political
      campaigns;
  •   The extent to which members of the minority group have been
      elected to public office in the jurisdiction;
  •   Evidence    demonstrating   that   elected   officials   are
      unresponsive to the particularized needs of the members of
      the minority group; and



                                 34
  •   The extent to which the policy underlying the State’s or
      the political subdivision’s use of the contested practice
      or structure is tenuous.

Gingles, 478 U.S. at 44-45. These factors may shed light on

whether the two elements of a Section 2 claim are met.

      Notably, while these factors “may be relevant” to a Section

2 analysis, “‘there is no requirement that any particular number

of factors be proved, or [even] that a majority of them point

one way or the other.’”         Id. at 45 (quoting S. Rep. No. 97–417,

97th Cong.2nd Sess. 29 (1982), U.S. Code Cong. & Admin. News

1982, p. 207).         This is not surprising, given that Congress

intended to give the Voting Rights Act “the broadest possible

scope.”      Allen v. State Bd. of Elections, 393 U.S. 544, 567

(1969).

      Instead,      courts    must   undertake      “a   searching     practical

evaluation     of    the     ‘past   and     present     reality,’     [with]    a

‘functional’ view of the political process.”                  Gingles, 478 U.S.

at 45 (quoting S. Rep. at 30, U.S. Code Cong. & Admin. News

1982, p. 208).        Courts must make “an intensely local appraisal

of the design and impact of” electoral administration “in the

light of past and present reality.”              Id. at 78 (quoting White v.

Regester, 412 U.S. 755, 769-70 (1973)).

      With   this    legal   framework      in   mind,   we   turn   now   to   the

district court’s Section 2 analysis.



                                       35
                                 1. The District Court               Misapprehended          and
                                    Misapplied the Law

      A close look at the district court’s analysis here reveals

numerous      grave      errors       of    law       that   constitute         an   abuse    of

discretion.     Centro Tepeyac, 722 F.3d at 188.

      First, the district court bluntly held that “Section 2 does

not incorporate a ‘retrogression’ standard” and that the court

therefore was “not concerned with whether the elimination of

[same-day     registration            and    other       features]       will    worsen      the

position of minority voters in comparison to the preexisting

voting    standard,        practice         or   procedure—a        Section      5   inquiry.”

McCrory, 997 F. Supp. 2d at 351-52 (internal quotation marks and

citations omitted).

      Contrary to the district court’s statements, Section 2, on

its   face,    requires         a    broad       “totality     of    the    circumstances”

review.       52 U.S.C. § 10301(b).                     Clearly, an eye toward past

practices      is        part       and     parcel      of    the     totality        of     the

circumstances.

      Further, as the Supreme Court noted, “some parts of the

[Section] 2 analysis may overlap with the [Section] 5 inquiry.”

Georgia v. Ashcroft, 539 U.S. 461, 478 (2003).                              Both Section 2

and Section 5 invite comparison by using the term “abridge[].”

Section 5 states that any voting practice or procedure “that has

the   purpose       of    or    will      have    the    effect     of     diminishing       the


                                                 36
ability of any citizens of the United States on account of race

or color . . . to elect their preferred candidates of choice

denies or abridges the right to vote.”                    52 U.S.C. § 10304(b)

(emphasis added).       Section 2 forbids any “standard, practice, or

procedure” that “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) (emphasis added).                     The Supreme

Court has explained that “[t]he term ‘abridge,’ . . . whose core

meaning is ‘shorten,’. . . necessarily entails a comparison.                       It

makes no sense to suggest that a voting practice ‘abridges’ the

right to vote without some baseline with which to compare the

practice.”     Reno v. Bossier Parish Sch. Bd., 528 U.S. 320, 333–

34 (2000) (citations omitted).

     Neither     the   Supreme    Court      nor   this   Court     has    ever   held

that, in determining whether an abridgement has occurred, courts

are categorically barred from considering past practices, as the

district court here suggested.                In fact, opinions from other

circuits   support     the   opposite     conclusion.         For    example,      the

Tenth   Circuit,   quoting    directly        from    Section     2’s     legislative

history,   has    explained      that   “‘[i]f       [a   challenged]       procedure

markedly departs from past practices or from practices elsewhere

in the jurisdiction, that bears on the fairness of its impact.’”

Sanchez v. State of Colo., 97 F.3d 1303, 1325 (10th Cir. 1996)

(quoting 1982 U.S.C.C.A.N. at 207, n.117).                    And as the Sixth

                                        37
Circuit recently held, under Section 2, “the focus is whether

minorities enjoy less opportunity to vote as compared to other

voters.      The     fact     that    a    practice        or    law       eliminates      voting

opportunities that used to exist under prior law that African

Americans disproportionately used is therefore relevant to an

assessment      of    whether,        under         the    current           system,      African

Americans     have     an     equal       opportunity           to    participate         in   the

political process as compared to other voters.”                               Husted, 2014 WL

4724703, at *28.

      In this case, North Carolina’s previous voting practices

are centrally relevant under Section 2.                               They are a critical

piece   of   the     totality-of-the-circumstances                     analysis         Section    2

requires.       In refusing to consider the elimination of voting

mechanisms successful in fostering minority participation, the

district court misapprehended and misapplied Section 2.

      Second,      the      district       court         considered          each       challenged

electoral mechanism only separately.                       See McCrory, 997 F. Supp.

2d at 344 (addressing same-day registration), at 365 (addressing

out-of-precinct          voting),         at    370       (early           voting),       at   375

(identification          requirements),             at    378        (pre-registration            of

teenagers),     and      at   379    (poll      challengers            and    elimination         of

discretion    to      keep     the    polls     open).               Yet    “[a]    panoply       of

regulations, each apparently defensible when considered alone,

may     nevertheless          have    the       combined             effect        of     severely

                                               38
restricting participation and competition.”                    Clingman v. Beaver,

544 U.S. 581, 607-08 (2005) (O’Connor, J., concurring in part

and concurring in the judgment).

      By inspecting the different parts of House Bill 589 as if

they existed in a vacuum, the district court failed to consider

the sum of those parts and their cumulative effect on minority

access to the ballot box.                Doing so is hard to square with

Section     2’s     mandate     to      look    at      the    “totality     of      the

circumstances,” 52 U.S.C. § 10301(b), as well as Supreme Court

precedent requiring “a searching practical evaluation” with a

“functional view of the political process.”                         Gingles, 478 U.S.

at   45   (internal       quotation    marks    and     citations      omitted).      By

looking at each provision separately and failing to consider the

totality     of     the     circumstances,       then,        the     district     court

misapprehended and misapplied the pertinent law.

      Third,      the   district      court    failed    to    adequately    consider

North Carolina’s history of voting discrimination.                        Instead the

district court parroted the Supreme Court’s proclamation that

“‘history did not end in 1965,’” McCrory, 997 F. Supp. 2d at 349

(quoting Shelby Cnty., 133 S. Ct. at 2628) and that “‘[p]ast

discrimination cannot, in the manner of original sin, condemn

governmental action.’”             Id. (quoting City of Mobile, Ala. v.

Bolden, 446 U.S. 55, 74 (1980)).



                                          39
      Of course, the history of voting discrimination in many

states in fact did substantially end in 1965—due in large part

to the Voting Rights Act.             The Supreme Court’s observation that

a   state’s   history       should    not    serve      to   condemn    its    future,

however,      does    not      absolve        states         from     their      future

transgressions.       As Justice Ginsburg pointed out in her Shelby

County dissent, casting aside the Voting Rights Act because it

has worked “to stop discriminatory changes is like throwing away

your umbrella in a rainstorm because you are not getting wet.”

133 S. Ct. at 2650 (Ginsburg, J., dissenting).

      Immediately after Shelby County, i.e., literally the next

day, when “history” without the Voting Rights Act’s preclearance

requirements picked up where it left off in 1965, North Carolina

rushed   to   pass    House    Bill    589,       the   “full   bill”       legislative

leadership likely knew it could not have gotten past federal

preclearance    in    the    pre–Shelby       County     era.       McCrory,    997   F.

Supp. 2d at 336.        Thus, to whatever extent the Supreme Court

could rightly celebrate voting rights progress in Shelby County,

the post-Shelby County facts on the ground in North Carolina

should have cautioned the district court against doing so here.

      Fourth,    in     analyzing           the     elimination        of      same-day

registration, the district court looked to the National Voter

Registration Act, which generally allows for a registration cut-

off of thirty days before an election.                  McCrory, 997 F. Supp. 2d

                                         40
at 352.     The district court then declared that “it is difficult

to conclude that Congress intended that a State’s adoption of a

registration       cut-off        before       election        day     would          constitute    a

violation of Section 2.”                Id.      In doing so, the district court

lost sight of the fact that the National Voter Registration Act

merely sets a floor for state registration systems.

     That        North     Carolina        used          to     exceed           National     Voter

Registration Act registration minimums does not entitle it to

eliminate     its    more     generous          registration               provisions       without

ensuring    that,     in    doing       so,    it     is      not    violating          Section    2.

Indeed,    Congress        made    that       quite      clear        by    including       in    the

National    Voter     Registration            Act     an      express       warning       that    the

rights     and     remedies        it    established            shall           not    “supersede,

restrict, or limit the application of the Voting Rights Act.”

52 U.S.C. § 20510(d)(1).

     Fifth,       also     with    respect          to     same-day         registration,         the

district court suggested that because voting was not completely

foreclosed and because voters could still register and vote by

mail, a likely Section 2 violation had not been shown.                                            See

McCrory, 997 F. Supp. 2d at 356 (noting that “North Carolina

provides    several        other        ways     to      register”              besides   same-day

registration        that    “have       not     been          shown        to    be    practically

unavailable to African–American residents”).



                                               41
     However,      nothing         in     Section         2    requires      a    showing    that

voters cannot register or vote under any circumstance.                                  Instead,

it   requires      “that       a     certain         electoral        law,       practice,     or

structure    interacts         with      social      and       historical        conditions     to

cause an inequality in the opportunities enjoyed by black and

white     voters     to     elect          their          preferred       representatives.”

Gingles, 478 U.S. at 47.                 In waiving off disproportionately high

African    American       use       of    certain         curtailed       registration         and

voting mechanisms as mere “preferences” that do not absolutely

preclude      participation,              the        district         court        abused      its

discretion.      See McCrory, 997 F. Supp. 2d at 351.

     Sixth, Section 2, on its face, is local in nature.                                     Under

Section 2, “[a] violation . . . is established if, based on the

totality    of     circumstances,           it       is       shown   that       the   political

processes    leading      to       nomination        or       election    in     the   State   or

political subdivision are not equally open to participation by

citizens of protected races.”                     52 U.S.C. § 10301(b) (emphasis

added).     As     the    Supreme         Court      has       noted,     in     undertaking    a

Section 2 analysis, courts make “an intensely local appraisal of

the design and impact of” electoral administration “in the light

of past and present reality.”                Gingles, 478 U.S. at 78.

     Nevertheless, without any basis in the statute or binding

precedent, the district court suggested that a practice must be

discriminatory on a nationwide basis to violate Section 2 and

                                                42
held that a conclusion it might reach as to North Carolina would

somehow throw other states’ election laws into turmoil.                                          For

example, the district court stated that “a determination that

North    Carolina        is     in        violation       of    Section       2    merely        for

maintaining       a     system        that      does      not     count       out-of-precinct

provisional       ballots     could         place    in    jeopardy       the     laws     of    the

majority of the States, which have made the decision not to

count such ballots.”                 McCrory, 997 F. Supp. 2d at 367.                            The

district    court’s         failure        to   understand        the     local      nature       of

Section 2 constituted grave error.                      Cf. Husted, 2014 WL 4724703,

at *29 (“There is no reason to think our decision here compels

any conclusion about the early-voting practices in other states,

which      do         not       necessarily            share          Ohio’s         particular

circumstances.”).

     Seventh, the district court minimized Plaintiffs’ claim as

to out-of-precinct voting because “so few voters cast” ballots

in the wrong precincts.                   McCrory, 997 F. Supp. 2d at 366.                       The

district court accepted evidence that “approximately 3,348 out-

of-precinct       provisional             ballots      cast     by     [African          American]

voters     were       counted        to     some     extent      in     the       2012    general

election.”         Id.        Going         forward       under       House       Bill    589,     a

substantial number of African American voters will thus likely

be disenfranchised.



                                                43
       Though the district court recognized that “failure to count

out-of-precinct provisional ballots will have a disproportionate

effect    on    [African       American]        voters,”    it      held   that    such    an

effect “will be minimal.”                 Id.       Setting aside the basic truth

that even one disenfranchised voter—let alone several thousand—

is too many, what matters for purposes of Section 2 is not how

many     minority          voters     are       being     denied      equal       electoral

opportunities         but    simply     that      “any”   minority     voter       is   being

denied    equal       electoral     opportunities.           52     U.S.C.    §    10301(a)

(forbidding          any     “standard,         practice,      or     procedure”         that

interacts      with        social   and     historical      conditions       and    thereby

“results in a denial or abridgement of the right of any citizen

of the United States to vote on account of race or color”)

(emphasis added).

       Eighth        and     finally,       the     district       court     rationalized

election administration changes that disproportionately affected

minority voters on the pretext of procedural inertia and under-

resourcing.          For example, in evaluating Plaintiffs’ Section 2

challenge       to    the     elimination         of    same-day     registration,        the

district court noted that county boards of elections “sometimes

lack[] sufficient time to verify registrants.”                         McCrory, 997 F.

Supp. 2d at 353.            But in detailing why that was so, the district

court exposed that the problem’s roots lie largely in boards of

elections’ own procedures.                Id. at 353 and n.36.               The district

                                               44
court then noted that “a voter who registered before the ‘close

of books’ 25 days before election day will have more time to

pass the verification procedure than a voter who registered and

voted during early voting.”             McCrory, 997 F. Supp. 2d at 353.

But more time alone guarantees nothing, and nothing suggests

that a voter who registers earlier will therefore be verified

before voting.

     The district court failed to recognize, much less address,

the problem of sacrificing voter enfranchisement at the altar of

bureaucratic (in)efficiency and (under-)resourcing.                   After all,

Section 2 does not prescribe a balancing test under which the

State can pit its desire for administrative ease against its

minority     citizens’     right   to   vote.     The    district     court   thus

abused its discretion when it held that “[i]t is sufficient for

the State to voice concern that [same-day registration] burdened

[county    boards    of    elections]     and    left    inadequate    time   for

elections officials to properly verify voters.”              Id. at 354.

     These flaws in the district court’s Section 2 analysis make

it   clear    that   the    district     court    both    misapprehended      and

misapplied the pertinent law.            Accordingly, the district court

abused its discretion.        Centro Tepeyac, 722 F.3d at 188.




                                        45
                             2. Proper Application of Section 2

     Properly      applying      the     law     to    the    facts,      even     as    the

district court portrayed them, shows that Plaintiffs are, in

fact, likely to succeed on the merits of their Section 2 claims

regarding the elimination of same-day registration and out-of-

precinct voting, contrary to the district court’s determination.

     In    the    first   step    of     our     Section      2    analysis,      we    must

determine    whether      House    Bill       589’s     elimination        of     same-day

registration and out-of-precinct voting imposes a discriminatory

burden on members of a protected class, meaning that members of

the protected class “have less opportunity than other members of

the electorate to participate in the political process and to

elect representatives of their choice.”                      52 U.S.C. 10301.           See

also Husted, 2014 WL 4724703, at *24 (identifying the two steps

of the Section 2 vote-denial inquiry).

     There can be no doubt that certain challenged measures in

House Bill 589 disproportionately impact minority voters.                               The

district    court    found       that       Plaintiffs       “presented         unrebutted

testimony that [African American] North Carolinians have used

[same-day   registration]         at    a   higher     rate       than   whites    in   the

three federal elections during which [same-day registration] was

offered”    and     recognized         that      the   elimination         of     same-day

registration would “bear more heavily on African-Americans than

whites.”     McCrory, 997 F. Supp. 2d at 348-49.                          The district

                                            46
court also “accept[ed] the determinations of Plaintiffs’ experts

that” African American voters disproportionately voted out of

precinct and that “the prohibition on counting out-of-precinct

provisional       ballots       will      disproportionally          affect       [African

American] voters.”          Id. at 366.

       Second, we must determine whether this impact was in part

“caused by or linked to ‘social and historical conditions’ that

have or currently produce discrimination against members of the

protected     class.”         Husted,      2014     WL   4724703,    at    *24    (quoting

Gingles, 478 U.S. at 47).                Here, when we apply the proper legal

standard to the district court’s findings, the disproportionate

impacts of eliminating same-day registration and out-of-precinct

voting      are   clearly     linked      to    relevant    social    and       historical

conditions.

       In making this determination, we are aided by consideration

of    the   “typical”       factors      that   Congress     noted    in    Section   2’s

legislative history.               However we recognize that “there is no

requirement that any particular number of factors be proved, or

that a majority of them point one way or the other.”                              Gingles,

478 U.S. at 45 (internal quotation marks and citation omitted).

       Regarding the history of voting-related discrimination in

the    pertinent       State,      the    district       court   found     that    “North

Carolina      .    .    .    has    an     unfortunate       history       of     official

discrimination in voting and other areas that dates back to the

                                               47
Nation’s founding.         This experience affects the perceptions and

realities of [African American] North Carolinians to this day.”

McCrory, 997 F. Supp. 2d at 349.

      One of Plaintiffs’ witnesses testified, for example, that

at around age 19—in the 1940s—she was required to recite the

Preamble to the Constitution from memory in order to register to

vote.      Id. at 349 n.29.           As of 1965, 39 counties in North

Carolina were considered covered jurisdictions under the Voting

Rights     Act,    having     “maintained        a      test    or    device     as    a

prerequisite to voting as of November 1, 1964, and [having] had

less than 50 percent voter registration or turnout in the 1964

Presidential election.”          Shelby Cnty., 133 S. Ct. at 2620.                    And

in 1975, when the Voting Rights Act’s preclearance formula was

extended    to     cover    jurisdictions        that    provided      “English-only

voting materials in places where over five percent of voting-age

citizens spoke a single language other than English,” several

additional North Carolina counties became covered jurisdictions.

Id.

      The district court recognized that the legacy of overtly

discriminatory       practices      such    as    these        and   the     concurrent

“struggle for African-Americans’ voting rights” justifies North

Carolinians’ skepticism of changes to voting laws.                         McCrory, 997

F. Supp. 2d at 349.         The fact that the Supreme Court struck down

the   Voting      Rights    Act’s   “covered         jurisdictions”         formula   in

                                           48
Shelby    County    does    not   allow      us     to    simply      ignore       Congress’s

directive to view current changes to North Carolina’s voting

laws against the mire of its past.

     Regarding      effects       of     past       discrimination            that     hinder

minorities’ ability to participate effectively in the political

process, the district court pronounced that “Plaintiffs’ expert

testimony demonstrates that [African American] citizens of North

Carolina     currently          lag     behind        whites          in     several        key

socioeconomic       indicators,         including             education,          employment,

income,    access   to     transportation,          and       residential         stability.”

McCrory,    997    F.   Supp.     2d    at   348.         To    this       end,    Plaintiffs

presented the following unchallenged statistics: (1) as of 2011-

12, 34% of African American North Carolinians live below the

federal poverty level, compared to 13% of whites; (2) as of the

fourth quarter of 2012, unemployment rates in North Carolina

were 17.3% for African Americans and 6.7% for whites; (3) 15.7%

of African American North Carolinians over age 24 lack a high

school degree, as compared to 10.1% of whites; (4) 27% of poor

African    American      North    Carolinians            do    not    have    access    to    a

vehicle,    compared       to   8.8%    of   poor        whites;      and    (5)    75.1%    of

African    Americans       in   North    Carolina         live       in    owned    homes    as

compared to 49.8% of whites.             Id. at n.27.

     Finally, as to the tenuousness of the reasons given for the

restrictions,       North       Carolina          asserts       goals        of     electoral

                                             49
integrity and fraud prevention.                     But nothing in the district

court’s portrayal of the facts suggests that those are anything

other than merely imaginable.                      And “states cannot burden the

right to vote in order to address dangers that are remote and

only ‘theoretically imaginable.’”                   Frank, 2014 WL 1775432, at *8

(quoting Williams v. Rhodes, 393 U.S. 23, 33 (1968)).

       Indeed, the best fact for North Carolina in the district

court’s opinion—the only specific problem cited, beyond naked

statements of bureaucratic difficulty attributable at least as

much    to    under-resourcing         of     boards    of    elections—is    that    a

thousand votes that had not yet been properly verified had been

counted in an election.               McCrory, 997 F. Supp. 2d at 353.               But

nothing in the district court’s opinion suggests that any of

those were fraudulently or otherwise improperly cast.                             Thus,

even the best fact the State could muster is tenuous indeed.

       At    the    end   of    the    day,    we    cannot   escape    the   district

court’s repeated findings that Plaintiffs presented undisputed

evidence showing that same-day registration and out-of-precinct

voting       were   enacted      to    increase       voter    participation,      that

African American voters disproportionately used those electoral

mechanisms, and that House Bill 589 restricted those mechanisms

and thus disproportionately impacts African American voters.                         To

us,    when     viewed     in    the     context       of    relevant   “social     and

historical conditions” in North Carolina, Gingles, 478 U.S. at

                                              50
47, this looks precisely like the textbook example of Section 2

vote denial Justice Scalia provided:

       If, for example, a county permitted voter registration
       for only three hours one day a week, and that made it
       more difficult for blacks to register than whites,
       blacks would have less opportunity “to participate in
       the political process” than whites, and [Section] 2
       would therefore be violated . . . .

Chisom, 501 U.S. at 408.

       Further,      even    if     we    were      to    accept       North        Carolina’s

purported non-discriminatory basis for keeping the full bill a

secret until the federal preclearance regime had been thrown

over   in    Shelby       County,    we     cannot       ignore    the       discriminatory

results     that     several   measures        in    House     Bill      589    effectuate.

Section     2’s     “‘results’      criterion       provides       a   powerful,        albeit

sometimes      blunt,     weapon     with     which      to   attack         even    the    most

subtle      forms    of    discrimination.”              Chisom,       501    U.S.     at     406

(Scalia, J., dissenting).                Neither North Carolina nor any other

jurisdiction        can    escape     the     powerful        protections           Section    2

affords minority voters by simply “espous[ing]” rationalizations

for a discriminatory law.             McCrory, 997 F. Supp. 2d at 357.

       While      plaintiffs        seeking       preliminary          injunctions          must

demonstrate that they are likely to succeed on the merits, they

“need not show a certainty of success.”                           Pashby, 709 F.3d at

321.     For the reasons set out above, Plaintiffs here have shown

that with respect to the challenged provisions of House Bill 589


                                             51
affecting same-day registration and out-of-precinct voting, they

are likely to succeed with their Section 2 claims.                    In deciding

otherwise, the district court abused its discretion.


           B. Irreparable Harm, the Public Interest, and the Balance
              of Hardships

       Having concluded that Plaintiffs have met the first test

for    a   preliminary     injunction,    likelihood       of   success     on   the

merits, as to their same-day registration and out-of-precinct

voting challenges, we must consider whether the other elements

have   similarly    been    met.     In    other    words,      we   must   analyze

whether Plaintiffs are likely to suffer irreparable harm; the

balance of the hardships; and whether the injunction is in the

public interest.     Winter, 555 U.S. at 20.

       Courts   routinely    deem   restrictions      on   fundamental       voting

rights irreparable injury.          See, e.g., Obama for Am. v. Husted,

697 F.3d 423, 436 (6th Cir. 2012); Williams v. Salerno, 792 F.2d

323, 326 (2d Cir. 1986); cf. Alternative Political Parties v.

Hooks, 121 F.3d 876 (3d Cir. 1997).                And discriminatory voting

procedures in particular are “the kind of serious violation of

the Constitution and the Voting Rights Act for which courts have

granted immediate relief.”          United States v. City of Cambridge,

799 F.2d 137, 140 (4th Cir. 1986).             This makes sense generally

and here specifically because whether the number is thirty or

thirty-thousand, surely some North Carolina minority voters will

                                      52
be     disproportionately            adversely        affected      in       the       upcoming

election.          And once the election occurs, there can be no do-over

and    no    redress.          The    injury     to   these     voters        is    real    and

completely irreparable if nothing is done to enjoin this law. 5

       By     definition,        “[t]he    public       interest         .    .    .    favors

permitting         as   many    qualified      voters      to    vote        as    possible.”

Husted, 697 F.3d at 437.              See also Purcell v. Gonzalez, 549 U.S.

1, 4 (2006) (The public has a “strong interest in exercising the

fundamental political right to vote.” (citations omitted)).                                 And

“upholding         constitutional       rights    serves      the   public         interest.”

Newsome v. Albermarle Cnty. Sch. Bd., 354 F.3d 249, 261 (4th

Cir. 2003).          The election laws in North Carolina prior to House

Bill       589’s     enactment       encouraged       participation          by     qualified

voters.       But the challenged House Bill 589 provisions stripped

them       away.        The    public     interest      thus     weighs           heavily    in

Plaintiffs’ favor.

       5
       The district court seemingly failed to understand this
point.   For instance, in ruling that reduction in early voting
was unlikely to cause irreparable harm to African American
voters, the district court noted that during the 2010 midterm
election, “the racial disparity in early-voting usage that was
observed in 2008 and 2012 all but disappeared.” McCrory, 997 F.
Supp. 2d at 372. In fact, the disparity was reduced from twenty
percent to three percent.     Thus, the district court seemed to
believe that the injury to a smaller margin of African American
voters that would occur during a midterm election year would be
somehow less “irreparable.”     That conclusion misapprehends the
irreparable   harm   standard   and   constituted  an   abuse  of
discretion.



                                            53
      By     contrast,       balancing       the       hardships      is      not     wholly

unproblematic for Plaintiffs.                North Carolina will have little

time to implement the relief we grant.                         But for some of the

challenged      changes,       such    as        the    elimination        of       same-day

registration, systems have existed, do exist, and simply need to

be   resurrected.        Similarly,         counting      out-of-precinct           ballots

merely requires the revival of previous practices or, however

accomplished,      the      counting    of       a   relatively       small     number    of

ballots. 6

      In     conclusion,      Plaintiffs         have    satisfied      every       element

required     for   a   preliminary      injunction        as   to     their     Section    2

claims      relating   to    same-day       registration        and    out-of-precinct

voting. 7     Accordingly, the district court abused its discretion




      6
       In Purcell, 549 U.S. 1, on which the dissenting opinion
relies, the Supreme Court seemed troubled by the fact that a
two-judge motions panel of the Ninth Circuit entered a factless,
groundless “bare order” enjoining a new voter identification
provision in an impending election.    At the time of the “bare
order,” the appellate court also lacked findings by the district
court. By contrast, neither district court nor appellate court
reasoning, nor lengthy opinions explaining that reasoning, would
be lacking in this case.
      7
       By not addressing Plaintiffs’ constitutional claims, we do
not mean to suggest that we agree with the district court’s
analysis.   But because we find that Plaintiffs are likely to
succeed on the merits under the Voting Rights Act, we need not,
and therefore do not, reach the constitutional issues.


                                            54
in refusing to grant the requested injunctive relief as to those

provisions. 8



       VI. Relief Granted

       Appellate      courts    have    the        power   to   vacate    and    remand   a

denial of a preliminary injunction with specific instructions

for the district court to enter an injunction.                         See, e.g., Elrod

v.   Burns,     427    U.S.    347,     350    (1976)      (affirming      the    Seventh

Circuit’s grant of a preliminary injunction the district court

had denied); Am. Civil Liberties Union of Ill. v. Alvarez, 679

F.3d   583,   608     (7th     Cir.    2012)       (reversing    and     remanding   with

instructions to enter a preliminary injunction); Newsom ex rel.

Newsom v. Albemarle Cnty. Sch. Bd., 354 F.3d 249, 252 (4th Cir.

2003) (vacating the district court’s order and remanding with

instructions to enter a preliminary injunction).




       8
       We respectfully disagree with the dissenting opinion that
our decision today will create any significant voter confusion.
The continuation of same-day registration and out-of-precinct
voting after today’s decision means more opportunity to register
and vote than if the entirety of House Bill 589 were in effect
for this election.   Voters who are confused about whether they
can, for example, still register and vote on the same day will
have their votes counted.    In this sense, our decision today
acts as a safety net for voters confused about the effect of
House Bill 589 on their right to vote while this litigation
proceeds.



                                              55
      For the many reasons above, we remand with instructions to

the district court to enter as swiftly as possible a preliminary

injunction granting the following relief:

  •   Part 16: House Bill 589’s elimination of Same-Day Voter

      Registration,   previously    codified   at   G.S.   163-82.6A,    is

      enjoined, with the provisions in effect prior to House Bill

      589’s enactment in full force pending the conclusion of a

      full hearing on the merits;

  •   Part   49:   House   Bill    589’s   elimination     of   Voting   in

      Incorrect Precinct, previously codified at G.S. 163-55, is

      enjoined, with the provisions in effect prior to House Bill

      589’s enactment in full force pending the conclusion of a

      full hearing on the merits.

                  REVERSED IN PART, AFFIRMED IN PART, AND REMANDED
               WITH INSTRUCTIONS TO ENTER A PRELIMINARY INJUNCTION




                                    56
DIANA GRIBBON MOTZ, Circuit Judge, dissenting:

       With great respect for my colleagues’ contrary views and

genuine regret that we cannot agree on the outcome of these

important cases, I dissent.

       At the center of these cases are changes made by the North

Carolina       General     Assembly      to    the    State’s      election      laws.

Plaintiff-Appellants and the United States moved the district

court to grant a preliminary injunction prohibiting the State of

North    Carolina     from    enforcing       many   of   the    new   laws.      After

considering       the      evidence     offered      at   a     week-long       hearing

(including the testimony of twelve witnesses and thousands of

pages of written material) and the extensive written and oral

legal arguments, the district court denied the motions.                             The

court explained its reasoning in a 125-page opinion and order.

Three sets of plaintiffs appealed; the United States did not.

The district court’s order is now before us, on interlocutory

appeal, less than five weeks before voters in North Carolina go

to the polls in a statewide general election.

       Nothing in the record suggests that any dilatoriness by

either the parties or the court caused this unfortunate timing.

For,    to    give   the    important    issues      at   stake    here   their     due

required extensive preparation, including months of discovery by

the    parties,      and   consideration       and   analysis     by   the     district

court.       But the fact of the timing remains.                Appellants ask this

                                          57
court to reverse the district court’s denial of relief, and to

grant a preliminary injunction requiring the State to revert to

abandoned election procedures for which the State maintains it

has not, and is not, prepared.                  For the reasons that follow, I

cannot agree that such extraordinary relief should issue.



                                           I.

       To    obtain     a    preliminary        injunction,         a    plaintiff        must

establish that:            (1) he is likely to succeed on the merits; (2)

he    is    likely    to    suffer    irreparable       harm    in      the    absence     of

preliminary      relief;      (3)    the   balance      of   equities         tips   in   his

favor; and (4) an injunction is in the public interest.                                 Winter

v.    Natural        Res.    Def.     Council,     555       U.S.       7,    20     (2008).

Critically, each of these four requirements must be satisfied.

Id.    Moreover, a plaintiff must make a “clear” showing both that

he is likely to suffer irreparable harm absent relief and he is

likely succeed on the merits at trial.                       Id.; Real Truth About

Obama, Inc. v. Fed. Election Comm’n, 575 F.3d 342, 346 (4th Cir.

2009), vacated on other grounds, 559 U.S. 1089 (2010).

       The       majority            emphasizes         that            unlawfully         or

unconstitutionally            depriving         North        Carolinians           of     the

opportunity to vote is an irreparable harm.                     I do not contend to

the contrary.          But by the same token, the requested injunction

will require the State to halt the ongoing implementation of one

                                           58
of its duly enacted statutes -- a statute that, for now at

least, has not been rendered invalid.                      As the Chief Justice

recently      reminded    us,    this     itself      constitutes   “a    form    of

irreparable injury.”           Maryland v. King, 133 S.Ct. 1, 3 (2012)

(Roberts, C.J., in chambers).

      Moreover,    even    a    showing    of   irreparable      harm    does    not,

without more, entitle a plaintiff to a preliminary injunction.

While we once permitted the mere presence of “grave or serious

questions for litigation” to tip the balance in the movant’s

favor, Rum Creek Coal Sales, Inc. v. Caperton, 926 F.2d 353, 363

(4th Cir. 1991), we have since recognized that this approach is

in   “fatal    tension”    with    the     Supreme     Court’s   instruction       in

Winter that all four factors must be independently satisfied.

Real Truth, 575 F.3d at 346.              Accordingly, no matter how likely

the irreparable injury absent an injunction, a plaintiff can

obtain a preliminary injunction only if he demonstrates a clear

likelihood of success on the merits, and the balance of equities

favors him, and the injunction is in the public interest.

      Such plaintiffs comprise a small class.                    As the Supreme

Court explained in Winter, the grant of a preliminary injunction

is “an extraordinary remedy never awarded as of right.”                           555

U.S. at 24; see also id. at 32 (noting that even issuance of a

permanent     injunction       after    trial   “is    a   matter   of   equitable

discretion; it does not follow from success on the merits as a

                                          59
matter    of    right.”).           In   a    recent       case,    our    en     banc    court

similarly recognized that the grant of such a remedy involves

“the   exercise       of    a   very     far-reaching           power,    which      is   to   be

applied only in [the] limited circumstances which clearly demand

it.”     Centro Tepeyac v. Montgomery Cnty., 722 F.3d 184, 188 (4th

Cir.   2013)     (en    banc)       (internal       citation       and    quotation        marks

omitted).

       Our     review      of   a     district       court’s       denial       of    such     an

“extraordinary remedy” is also highly deferential.                                   We review

the grant or denial of a preliminary injunction for “abuse of

discretion.”           Real     Truth,       575    F.3d    at    345-47.         Under      this

standard, we review the district court’s factual findings for

clear error.           Pashby v. Delia, 709 F.3d 307, 319 (4th Cir.

2013).       We review its “legal rulings de novo” but we review the

district      court’s      “ultimate         decision      to    issue    the     preliminary

injunction      for     abuse    of      discretion.”            Gonzales       v.   O    Centro

Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 428 (2006).

Thus, as the Third Circuit has explained, an appellate court

“use[s] a three-part standard to review a District Court’s grant

of a preliminary injunction:                  we review the Court’s findings of

fact for clear error, its conclusions of law de novo, and the

ultimate decision to grant the preliminary injunction for abuse

of discretion.”            Miller v. Mitchell, 598 F.3d 139, 145 (3d Cir.

2010).

                                               60
       While securing reversal of a denial of preliminary relief

is    an   uphill    battle    for     any        movant,      Appellants        face    a

particularly steep challenge here.                For “considerations specific

to    election    cases,”    including      the     risk      of   voter       confusion,

Purcell v. Gonzalez, 549 U.S. 1, 4-5 (2006), counsel extreme

caution when considering preliminary injunctive relief that will

alter electoral procedures. ∗         Because those risks increase “[a]s

an election draws closer,” id. at 5, so too must a court’s

caution.      Cf.    Riley    v.   Kennedy,        553   U.S.      406,    426     (2008)

(“[P]ractical considerations sometimes require courts to allow

elections    to     proceed    despite         pending      legal      challenges.”).

Moreover,    election   cases      like     the    one   at    hand,      in    which   an

appellate court is asked to reverse a district court’s denial of

a    preliminary    injunction,      risk      creating     “conflicting         orders”

which “can themselves result in voter confusion and consequent



       ∗
        Although the majority steadfastly asserts that the
requested injunction seeks only to maintain the status quo, the
provisions challenged by Appellants were enacted more than a
year ago and governed the statewide primary elections held on
May 6, 2014.      Appellants did not move for a preliminary
injunction until May 19, 2014, almost two weeks after the new
electoral procedures had been implemented in the primary.
Moreover, regardless of how one conceives of the status quo,
there is simply no way to characterize the relief requested by
Appellants as anything but extraordinary.      Appellants ask a
federal court to order state election officials to abandon their
electoral laws without first resolving the question of the
legality of those laws.



                                          61
incentive to remain away from the polls.”                     Purcell, 549 U.S. at

4-5.



                                             II.

       Given   the        standard   of   review,     and    the     Supreme    Court’s

teaching on injunctive relief in the weeks before an election, I

cannot      join    the     majority    in    reversing      the   judgment     of    the

district court.

       My   colleagues       argue     that    we   should    reverse      because,   in

assessing the likelihood of Appellants’ success on the merits,

the    district           court   articulated        certain       legal     standards

incorrectly.         Such a misstep, they assert, constitutes an abuse

of discretion and so requires reversal and grant of injunctive

relief.       Usually an error of law does constitute an abuse of

discretion and does require reversal.                      But when reviewing the

denial of a preliminary injunction, an appellate court can find

an abuse of discretion requiring reversal only if the appellant

demonstrates that the corrected standard renders its likelihood

of success clear and establishes that the other requirements for

a preliminary injunction have been met.

       In my view, Appellants have not done this here.                         That is,

Appellants         have    neither     established     a     clear    likelihood       of

success on the merits, nor demonstrated, particularly at this

late juncture, that the balance of the equities and the public

                                              62
interest weigh in their favor.                    Absent the required showing on

each of these elements, the district court’s “ultimate decision”

to   deny    preliminary        relief      was    not    an     abuse    of   discretion.

O Centro, 546 U.S. at 428.



                                            III.

      Giving due deference, as we must, to the district court’s

findings      of   fact,    Appellants        have       not    established      that     the

district      court   abused          its   discretion         in    finding     no    clear

likelihood of their success on the merits.                           This is not to say

that I believe the district court’s legal analysis was without

error, only that Appellants have not shown that correcting the

errors would render clear their likelihood of success.

      For    instance,      I    am    troubled      by    the      court’s     failure    to

consider the cumulative impact of the changes in North Carolina

voting      law.      Specifically,          the     district         court    found    that

prohibiting the counting of out-of-precinct provisional ballots

would not burden minority voters because early voting provides

“ample      opportunity”        for    individuals        “who      would     vote    out-of-

precinct” to otherwise cast their ballot.                         North Carolina State

Conference of Branches of the NAACP v. McCrory, 997 F. Supp. 2d

322, 367 (M.D.N.C. 2014).               That finding rests on the assumption

that eliminating a week of early voting still leaves minority

voters      with   “ample       opportunity.”             But       the   district     court

                                             63
discussed plaintiffs’ challenges to these two provisions without

acknowledging that the burden imposed by one restriction could

reinforce the burden imposed by others.                             Compare id. at 366-68

with id. at 370-75.                Similarly, the district court discussed

same-day    registration,           id.     at        46,    without       recognizing       that

eliminating,       in   one        fell    swoop,       preferred          methods     of    both

registration and ballot casting has a more profound impact on

the    opportunity      to    vote        than    simply          eliminating    one    or    the

other.     Cf. Pisano v. Strach, 743 F.3d 927, 933 (4th Cir. 2014)

(“When     deciding          whether        a     state’s           filing      deadline      is

unconstitutionally burdensome, we evaluate the combined effect

of the state’s ballot-access regulations.” (emphasis added)).

       At this stage, however, I cannot conclude that correcting

these, or similar, errors requires the holding that Appellants

are    clearly    likely      to    succeed       on        the    merits.      The    district

court’s    factual       findings          about        early       voting      and    same-day

registration suggest Appellants’ evidence simply did not sway

the court.       The court rejected as unpersuasive evidence offered

that    constricting         the    early        voting       period       assertedly       would

create long lines at the polls, McCrory, 997 F. Supp. 2d at 372,

affect    black    voters      disproportionately,                  id.,   or   cut    down    on

Sunday voting hours in the upcoming election.                                Id. at 373.       So

too with same-day registration:                         the district court rejected

Appellants’       assertions        that     eliminating            same-day     registration

                                                 64
would cause registration rates among black North Carolinians to

drop.      Id.       at   350.         Whatever           the    wisdom      of    these    factual

findings, they are not clearly erroneous.

       In short, had I been overseeing this case in the district

court,     I    might       have       reached        a     different         conclusion         about

Plaintiffs’ chances of success on the merits.                                But neither I nor

my colleagues oversaw this case and its 11,000-page record.                                        Nor

did we consider the evidence and arguments produced in five days

of hearings.         And though I share some of my colleagues’ concerns

about the district court’s legal analysis, those concerns do not

establish      that       plaintiffs        have      shown       a    clear       likelihood       of

success on the merits.



                                                IV.

        Further,      Appellants         have    not        shown      that       the   balance     of

equities       and    the       public      interest            support      issuance       of     the

preliminary        injunction          they     seek.            Any    such       showing       would

require overcoming the burden the State faces in complying with

ordered    changes         to    its    election           procedures        and     the   risk     of

confusing voters with dueling opinions so close to the election.

        Election      day       is   less     than        five    weeks       away,      and     other

deadlines      loom       even       closer.       In       fact,      for     the      many     North

Carolina voters that have already submitted absentee ballots,

this    election      is    already       underway.              The   majority’s          grant    of

                                                 65
injunctive         relief       requires     boards       of     elections        in    North

Carolina’s 100 counties to offer same-day registration during

the early voting period and count out-of-precinct provisional

ballots -- practices for which neither the State nor the local

boards have prepared.                 See, e.g., Poucher Decl. 4, ECF No. 146-1

(“To have to revert back to conducting an election under the

prior statute would be confusing to [election] officials, and

again unfunded.”).

       The majority suggests that the State exaggerates the burden

imposed on it, and that resurrecting past practices is a simple

matter.      Perhaps.       But the logistics of running an election seem

to me far more complex than my colleagues suggest.                            Poll workers

have   been    trained          and    polling   centers       have   been    equipped     in

reliance      on    the     procedures        that    governed        the     most     recent

statewide     primary.            An    injunction    will      render   some     of    those

procedures a nullity.                  Additionally, it is undisputed that the

same-day registration system used in elections under the prior

law    was    administered             electronically      through       an    application

embedded      within        a     comprehensive       computer        program.           That

application was disengaged after the enactment of SL 2013-381,

and is now out of date.                 Reliable restoration of the application

in time for the general election is apparently impossible.                                For

this    reason,        the        injunction       will      require        the      same-day

registration process to be manually administered by each county

                                              66
board, risking delays, errors, and general confusion.                                   Thus,

while    reverting        to   the    old    procedure     may     make    for    a    simple

order,       it   will    require        substantial      effort    to    effectuate      in

practice.

       In addition to the burden it places on the State, an about-

face    at    this      juncture     runs    the   very    real    risk    of    confusing

voters who will receive incorrect and conflicting information

about when and how they can register and cast their ballots.

Under    North       Carolina      law,     ensuring      voters    have    the       correct

information in a timely fashion is not just good policy, it is a

statutory mandate.             See N.C. Gen. Stat. § 163-278.69 (a).                      The

State is required to send to every household a Judicial Voter

Guide “no more than 28 days nor fewer than seven days before”

early voting begins.               Id.      We were told at oral argument that

this Guide, and a timeline of important dates, have already been

printed and sent to every household in the State, and have been

made available on the State Board of Elections’ website.                                  See

2014          General           Election           Judicial          Voter             Guide,

http://www.ncsbe.gov/ncsbe/Portals/0/FilesT/JudicialVoter

Guide2014.pdf (last visited Sept. 30, 2014).                              The majority’s

order renders this information inaccurate.                          For instance, the

current Guide lists a registration cut-off date of October 10

and    instructs         voters    that     they   must     vote     in    their       proper

precinct.         Id.    Moreover, the widespread dissemination of flat-

                                              67
out     contradictory      information        undermines        confidence    in    the

State’s ability to carry out orderly elections.

      Recognizing       the    importance     of   avoiding       confusion    at    the

polls, both we and the Supreme Court have deferred to a state’s

own assessment of when such confusion is likely to occur.                           See,

e.g., U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 834

(1995); Munro v. Socialist Workers Party, 479 U.S. 189, 195-96

(1986); Pisano, 743 F.3d at 937.                   The majority downplays the

State’s      concerns    about    confusion        here,   suggesting        that   the

effect of any confusion will be minimal.                   My colleagues see the

injunction as a “safety net” that will ensure that any confused

voters at least have the opportunity to cast a ballot.                        But this

assumes that those who may be confused by “conflicting orders”

will resist the “consequent incentive to remain away from the

polls.”      Purcell, 549 U.S. at 5.           For “conflicting orders” cause

not   only    uncertainty       about   the    status      of    particular     voting

procedures, but also general frustration with and distrust of an

election process changed on the eve of the election itself.

      In sum, to obtain a preliminary injunction, Appellants must

establish     that   the      balance   of    hardships     and    public     interest

weigh in their favor.           I cannot conclude that they have done so

here.




                                         68
                                            V.

    Appellants           will      have     the        opportunity       at        trial     to

demonstrate precisely how SL 2013-381 burdens voters in North

Carolina.       And      if      Appellants       can    show     that       the     multiple

provisions      of    that        law    work     in     tandem    to        limit    voting

opportunities,       I     am    confident       that    the    district       court       will

consider the totality of that burden.                          A law that adopts a

“death by a thousand cuts” approach to voting rights is no more

valid    than   a    law    that       constricts       one    aspect    of    the    voting

process in a particularly onerous manner.                       But at this juncture,

in my view, Plaintiffs have not met the high bar necessary to

obtain    the   relief          they    seek.      Accordingly,          I    respectfully

dissent.




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