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,
2

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 FERGUSONKELLY; 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.
3

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

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.
4

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, 
5

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.
6

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.
7

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 sameday 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 
8

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-ofprecinct 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-yearolds 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 
9

possible, an order granting a preliminary injunction enjoining 

enforcement of certain provisions of House Bill 589.1

I. Background2

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-ofprecinct 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).
10

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.
11

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).
12

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.
13

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 
14

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 atlarge 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 
15

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 
16

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 
17

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 outof-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.
18

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)).
19

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 
20

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 
21

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 
22

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. 
23

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 
24

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 preregistration[, 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 
25

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

eighteen years and older may vote. The State’s refusal to preregister 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 
26

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, 
27

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,
28

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.
29

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-
30

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”).
31

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 
32

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 
33

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 
34

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
35

• 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. 
36

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 
37

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 
38

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 
39

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)). 
40

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 cutoff of thirty days before an election. McCrory, 997 F. Supp. 2d 
41

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”).
42

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
43

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 outof-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. 
44

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 underresourcing. 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 
45

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.
46

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-ofprecinct 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 
47

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 
48

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 
49

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 
50

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 
51

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 
52

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 
53

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. 
54

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.
55

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.
56

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 
57

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 
58

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 
59

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 
60

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).
61

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.
62

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 
63

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-ofprecinct” 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 
64

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 
65

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 
66

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 
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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 aboutface 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-
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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.
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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.