More Evidence that South Carolina Will Seek Fast Track to SCOTUS Review of Its Voter ID Law, and Possibly Tee Up the Constitutionality of Section 5 of the Voting Rights Act

In a recent Slate piece, I suggested that a possible suit by South Carolina over DOJ’s objection to preclearance of its voter id law could get the issue fast-tracked to the Supreme Court, leapfrogging over the Shelby County case and other cases raising the constitutionality of section 5 of the Voting Rights Act:

While you might expect the Supreme Court to try to duck the potential for yet another blockbuster decision this term, a procedural oddity of the Voting Rights Act makes it unlikely. Most cases come up to the Supreme Court review through a petition for a writ of certiorari. The court has total discretion about whether or not to hear such cases. But a very small minority of cases—almost all of them election cases—come to the Supreme Court on a direct appeal from a three-judge court. South Carolina’s expected litigation over its voter ID law will go before just such a court in Washington, D.C., with direct appeal to the Supreme Court. Unlike an ordinary denial to hear the case, a Supreme Court decision not to hear an appeal from a three-judge court is a decision on the merits, an indication that the lower court got the decision right. (That’s not true with cert. denials.)

If South Carolina argues in court that it is unconstitutional to require it to submit its voter ID law for federal approval, and the three-judge court rejects that argument, it is hard to imagine the Supreme Court conservatives refusing to hear that case. And further, because this is an election-related case, it is likely to be fast-tracked like the Texas redistricting case. South Carolina is claiming it needs to use voter identification in the upcoming election to preserve the integrity of its electoral process. DoJ is blocking the state’s law. This almost perfectly tees up the issue of federalism and state sovereignty.

One knowledgeable Court observer wrote me privately to say that this was pie-in-the-sky thinking, that the Court would be very unlikely to consider such a case on the fast track given where we are in the term.

Well here’s some evidence that South Carolina sees this case as going to the Court (and I’d guess on an emergency basis): they’ve hired Paul Clement.  Yes, that Paul Clement, the best oral advocate I’ve ever seen or heard and someone likely to be on any Republican President’s short list for an appointment to the Supreme Court should one open up.

The voting wars are heating up, friends, and the Supreme Court could well get dragged in in 2012.

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