Thanks to another Supreme Court deadlock, North Carolina’s latest changes to Voter Registration and voting procedures will not be in effect on Election Day:
WASHINGTON — A deadlocked Supreme Court on Wednesday refused to revive parts of a restrictive North Carolina voting law that a federal appeals court had struck down as an unconstitutional effort to “target African Americans with almost surgical precision.”
The court was divided 4 to 4, with the court’s more conservative members voting to revive parts of the law. The court’s brief order included no reasoning.
North Carolina’s law, which imposed an array of voting restrictions, including new voter identification requirements, was enacted by the state’s Republican-controlled legislature in 2013. It was part of a wave of voting restrictions enacted after a 5-to-4 Supreme Court decision that effectively struck down a central part of the federal Voting Rights Act, weakening federal oversight of voting rights.
Civil rights groups joined with the Obama administration in filing suit against the law, arguing that, several parts of the law violated the Constitution and what remained of the Voting Rights Act. A trial judge rejected those claims in April, but in July a three-judge panel of the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., disagreed.
The appeals court ruling struck down five parts of the law: its voter ID requirements, a rollback of early voting to 10 days from 17, an elimination of same-day registration and of preregistration of some teenagers, and its ban on counting votes cast in the wrong precinct.
The court found that all five restrictions “disproportionately affected African Americans.” The law’s voter identification provision, for instance, “retained only those types of photo ID disproportionately held by whites and excluded those disproportionately held by African Americans.”
This was so, the court said, even though the state had “failed to identify even a single individual who has ever been charged with committing in-person voter fraud in North Carolina.” But it did find that there is evidence of fraud in absentee voting by mail, a method used disproportionately by white voters. But the Legislature exempted absentee voting from the photo ID requirement.
The court also found that the early voting restrictions had a much larger effect on black voters, who “disproportionately used the first seven days of early voting.”
The law, the court said, eliminated one of two “souls-to-the-polls” Sundays when black churches provided rides to polling places.
In an emergency application filed 17 days after the appeals court ruling, state officials asked the Supreme Court to step in. Represented by Paul D. Clement, a former United States solicitor general in the George W. Bush administration, the officials challenged only the parts of the appeals court’s ruling that they said would create confusion in the coming election.
The state officials asked the justices to temporarily restore three parts of the law: its voter-ID requirements, the reduction of early voting days and preregistration of some teenagers.
In response, the Obama administration and civil rights groups said the state had moved too slowly to challenge the appeals court’s ruling and that undoing it would lead to mistakes and confusion.
They added that the state’s lawyers had earlier told the appeals court that the state could comply with a ruling so long as it was issued by late July. The appeals court ruled on July 29.
Changing course now, the administration said, “would inflict irreparable injury on minority voters.”
The state asked the justices to act because it said the appeals court’s approach would “threaten voter ID laws throughout the nation.”
The Obama administration responded that the appeal’s court’s ruling rested on “a careful appraisal of overwhelming evidence specific to North Carolina.”
“The only voter ID laws that the decision endangers are those proven through overwhelming evidence to have been adopted with racially discriminatory intent,” the brief said.
“This is a case about the use of race to achieve partisan ends.”
Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan voted to reject the state’s arguments. Justice Clarence Thomas would have revived all of the contested provisions, while Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy and Samuel A. Alito Jr. would have reinstated the voter ID and early voting provisions.
Election law expert Rick Hasan comments:
- It is no surprise that this stay was denied. It was always difficult to see where a fifth vote would come from, given four liberal Justices (Breyer, Ginsburg, Kagan, and Sotomayor) likely to be very skeptical of voter id laws and other laws that Republican legislatures have passed making it more difficult for people (especially people like to vote Democrat) to register and vote.
- The fact that this petition got four votes should be very depressing to those who have been hoping that perhaps Justice Kennedy and the Chief Justice would have had a change of heart on voter id laws as Judge Posner and Justice Stevens have since the Crawford case. The petition was exceptionally weak because North Carolina waited 17 days to file it and then claimed an emergency. So even apart from the merits, this was a weak case. And on the merits, we have a finding that the state of North Carolina engaged in intentionally racially discriminatory conduct. Even that was not enough for the conservatives to justify the 4th Circuit’s decision, at least temporarily (though, to be fair, the 4th Circuit reversed the factual finding of the district court on discriminatory intent, and they may not buy it). If Kennedy and the Chief are going to be in play in future voting wars cases, this stay order does not give an inkling of that.
- This also means that as these cases work their way up to the Supreme Court on the merits (there will be a case from Texas too, we’ve been promised, and more to come), there is very likely to be a 4-4 deadlock on the merits, meaning the Court won’t be able to do its work. It also means that how the Court handles not only voting rights but a whole host of issues depends on the outcome of the presidential election. The Supreme Court really matters.
- Finally, in the interim, this really empowers the lower courts, both the federal courts of appeal and state Supreme Courts. As Josh Douglas notes, if we were unfortunate to have a Trump v. Clinton case a la Bush v. Gore, the final word would be with those lower courts and not with the Supreme Court. And we could even have conflicting lower court rulings which the Supreme Court might be deadlocked to resolve.
It seems clear that one of the things that severely undercut the state’s request to the Supreme Court here was the fact that it argued that the lower court’s ruling had created an “emergency” situation to the extent that it purported to void significant portions of state election law so close to Election Day but that the request for a stay was filed a full seventeen days after the issuance of the lower court ruling. Although the Supreme Court didn’t make note of that fact in its brief ruling on the matter, if a matter is an “emergency” but a party waits nearly three weeks to file their request for a stay, it tends to undercut their argument that the timing of the ruling gives them insufficient time before Election Day to even get around to filing a request for a stay based on a supposed emergency. In reality, of course, the main reason that the stay was not put in place was due to the current make up of the Court. If Justice Scalia were still alive, it’s likely that he would have been the fifth vote for putting a stay in place for at least part of the ruling, although it’s worth noting that only Justice Thomas was in favor of placing a stay on the entire ruling, the remainder of the Court’s conservatives would have only granted the stay with respect to the lower court’s rulings on Voter ID and early voting, although one can make a persuasive argument that this is the most important part of the lower court ruling as it applies to the upcoming election. This isn’t the end of the legal proceedings in this matter, of course, since North Carolina can still appeal the full ruling from the Fourth Circuit to the Supreme Court. However, given the fact that the Court was divided 4-4 on the stay application, it seems pretty safe to assume that the result would be the same if the Court accepted the case for appeal and heard oral argument prior to the confirmation of a ninth Justice. The could, of course, decide to defer scheduling argument on the case until Justice Scalia’s vacant seat is filled, but
Practically speaking, this ruling is likely to inure to the benefit of Democrats in the upcoming election to the extent that it makes it easier for African-Americans and other minorities to vote. This is especially true with regard to the early voting provisions, which are typically used by African-American churches to organize people to vote, especially on certain Sundays prior to Election Day during which there are organized campaigns that in many cities include caravans from church to the closest early voting locations in an effort to maximize minority voter participation. To the extent that happens, it will work largely to the benefit of Hillary Clinton, who has been out-polling Donald Trump among African-Americans by overwhelming margins. Just as in 2008 and 2012, the greater participation in the process there is from this segment of the electorate in the election, the more it will benefit the Democratic candidate. Given the fact that the margins between Trump and Clinton are already razor thin, with Clinton leading by a half-point in a head-to-head match and 2.0 points in a four-way match. Maximizing minority turnout, in other words, could be the difference in deciding who wins North Carolina’s fifteen Electoral Votes and, ultimately, the election since it would be virtually impossible for Trump to win the election if he doesn’t hold on to every state that Mitt Romney won in 2012. Therefore, this decision is certainly good news for Democrats both in the statewide races in North Carolina this year, and the Clinton campaign. Whether it will be enough to make a difference remains to be seen.
