Appeals court restores same-day registration in North Carolina but doesn’t expand early voting

With little more than a month before residents go to the polls, North Carolina’s election laws plunged into turmoil on Wednesday amid a rapidly changing legal fight and the prospect of intervention by the U.S. Supreme Court.

A federal appeals court granted a temporary order to allow same-day registration and provisional ballots in the state’s fall elections – two practices thrown out when the Republican-controlled legislature rewrote voting rules last year.

By a 2-1 vote, the panel of the 4th Circuit Court of Appeals left much of that new voting package in place, including a one-week cut to early voting days and the end of a preregistration program for teenagers.

Republican leaders who helped pass the new rules, including House Speaker Thom Tillis of Cornelius and state Sen. Bob Rucho of Matthews, promised a quick appeal. They said the ruling violates Supreme Court precedent on not changing election laws too close to a vote.

Tillis, locked in a close U.S. Senate race that could help swing control of Congress, said changes now could confuse voters and disrupt the democratic process.

Later in the day, Gov. Pat McCrory, who signed the voting package into law, said he had ordered the state’s attorneys to file a Supreme Court appeal to restore the two voting provisions “and protect the integrity of our elections.”

Carl Tobias, a law professor at the University of Richmond, said the state’s appeal sets the stage for a Supreme Court role in the North Carolina voting-law case, similar to what the justices did earlier this week in Ohio.

There, the court voted 5-4 along ideological lines to block an appeals court ruling restoring seven days of early voting and same-day registration cut by Republicans in the Ohio legislature.

“The battle lines have already been drawn, I’m afraid. You have the five Republicans on the Supreme Court voting against the four Democrats,” Tobias said. “I’m sorry to sound so cynical, but this seems so blatantly political. All these measures passed by Republican legislatures to help Republican candidates. So what does the Supreme Court do?”

Tobias said he expects a Supreme Court decision this week.

Area election officials said they still have time to put the appeals court changes in place, particularly since same-day registration and out-of-precinct voting have been used in every election but the May primary for the past six years.

According to Mecklenburg elections chief Michael Dickerson, however, a time-consuming Supreme Court appeal could make election planning chaotic.

The new voting rules have been a lightning rod since they passed in July 2013, at the close of the legislative session. A variety of groups, including the U.S. Justice Department, filed suit shortly after McCrory signed them in August. The trial is scheduled for July.

Supporters say the laws are designed to modernize Election Day and stamp out fraud. Critics say the package contains the toughest voter restraints in the country and targets groups that normally vote Democratic – poor people, minorities and the young.

Last Thursday, the three-judge panel heard arguments over the restraining order during a two-hour hearing in Charlotte.

The group’s majority opinion, issued Wednesday morning, was written by Judge James Wynn of Martin County in Eastern North Carolina. He was joined by colleague William Floyd, a Brevard native who practiced law in Pickens County, S.C.

In the majority opinion, Wynn said that U.S. District Judge Thomas Schroeder of Winston-Salem “got the law plainly wrong” in deciding last month that the groups seeking a restraining order had not proven that the rules will cause “irreparable harm” to some voters during this election.

Wynn also brushed aside arguments by the state’s attorneys that it’s too late to change the voting rules now.

While they restored same-day registration and out-of-precinct voting, Wynn and Floyd kept most others parts of the state’s election laws in place, including the cut to early voting days, a ban on extending voting hours and the end of preregistration of 16- and 17-year-olds for future elections.

The package’s keynote provision – a requirement for voters to produce a photo ID before being allowed to take part – goes into effect in 2016.

Appeals Court Judge Diana Motz, who headed the panel at its Charlotte hearing, wrote the dissenting opinion. She said the challengers, who include voters, state chapters of the American Civil Liberties Union and the NAACP, did not meet the Supreme Court requirements for an injunction this close to the election.

While agreeing that the new laws could damage some voters, Motz said proof of “irreparable harm” alone does not justify the changes under the latest Supreme Court standards.

Barring a Supreme Court order, Wednesday’s ruling means voters can register and vote on the same day during the in-person early voting period, Oct. 23-Nov. 1. The 4th Circuit’s temporary order also allows voters to cast ballots on Election Day even if they show up at the wrong precinct.

All three of the judges who heard the arguments last week were appointed to the appeals court by Democratic presidents, though Floyd was first named to the federal bench by President George W. Bush.

While the challengers did not get everything they wanted, they greeted Wednesday’s ruling as a significant victory.

“The judges clearly understood the impact these rules would have had on voters, making it more difficult for tens of thousands of them to cast a ballot,” said Chris Brook, legal director for the state ACLU.

State NAACP Director William Barber II said the appeals court “took an important step to ensure that this election will remain free, fair and accessible to all North Carolina voters.”

Rucho said the judges ignored a clear warning from a higher court not to change election laws close to the actual vote.

“We will have our day in court but to make this decision is to really go against what the Supreme Court has made very clear,” Rucho said.

Brook, though, said the administrative and technical changes to put longstanding election policies back in place should take little time or effort.

Election officials in Mecklenburg, Gaston and Iredell counties all expressed confidence that the Nov. 4 elections can incorporate the court-ordered changes Wednesday without too much added burden on personnel.

Gaston Elections Director Adam Ragan pointed out that the state has already sent out judicial voting guides to 4 million households that now contain inaccurate information.

Otherwise, he said, “We’ve done same-day registration before so we’re familiar with the process. We’ll be fine.”

Dickerson said Mecklenburg officials predicted ahead of time that the new election laws would be challenged, so they held off on training precinct workers as long as they could – until next week.

Observer staffers Joe Depriest, Joe Marusak, Jim Morrill and Hope Paasch contributed.

This story was originally published October 1, 2014 at 1:04 PM with the headline "Appeals court restores same-day registration in North Carolina but doesn’t expand early voting."