A full 17 days after the 4th Circuit held that challenged provisions of North Carolina’s voting law had to be blocked because they were passed with a racially discriminatory purpose, the state of North Carolina has filed this petition asking Chief Justice Roberts to put three provisions of the blocked law back into effect for the November elections. (The three provisions the state wants restored are:”(1) the court’s refusal to allow North Carolina to continue to enforce a voter-ID law that went into effect for and was applied at the polls during the 2016 primary election; (2) its mandate that every county provide 17 days of ‘early voting’ instead of the 10 that they have been providing for the past three years; and (3) its mandate that the State resume so-called ‘preregistration’ of 16-year-olds.”
This means that same day voter registration and out-of-precinct voting are BACK for this election because this is not the subject of a stay. This alone is a big win for plaintiffs.
And the state has brought in the big guns—Paul Clement has joined the team, no doubt costing the state of North Carolina a pretty penny.
The main pitch made for why the three provisions the state singled out should be stayed (at least based on the Introduction to the brief is based on timing, under the Purcell principle:
Maintaining the status quo as to those three provisions and permitting this year’s general election to proceed under the same rules as this year’s primary election will avoid “voter confusion and consequent incentive to remain away from the polls,” Purcell v. Gonzalez, 549 U.S. 1, 4-5 (2006), and there is no reason to believe that it will have any detrimental effect on voters, minority or otherwise….In sum, North Carolina should not be forced to scramble mere months before the general election to rejigger settled election plans at the Fourth Circuit’s command—particularly when the Fourth Circuit did not disturb the District Court’s finding that the laws it enjoined do not actually have a disparate impact on minority voters, voter-ID laws have been approved by this Court, and North Carolina’s early voting and preregistration rules are no more (and in some cases actually less) stringent than those of other States. There is certainly a fair prospect that this Court will ultimately reverse the Fourth Circuit’s unprecedented and unsustainable intentional discrimination holding; in the meantime, neither the State nor its residents should be forced to suffer the additional indignity of being prohibited from carrying out the general election under laws that have so far proven to expand minority access to the franchise.
It makes total sense for the state of North Carolina to make this all about the timing issue at the Supreme Court—because a fifth vote for a stay is likely to have to come from Justice Breyer or Kagan, Justices in the past who seem to have bought into the idea that changes just before the election should not be made by the courts, when they can confuse voters and upset the plans of election administrators.
But there are two reasons to believe the Purcell argument is unlikely to gain a fifth vote here: first, the timing problem is North Carolina’s fault. The fourth circuit specifically addressed the timing issue in its denial of a stay, pointing out the assurances the state gave the fourth circuit that a decision by the end of July would be enough time to implement its decision. And they waited SEVENTEEN DAYS to file this thing. Second, there is a finding of intentional discrimination here, and as I argue in my piece Reining in the Purcell Principle, such a finding should weigh heavily on a court in considering whether a last minute change is warranted. That is, even if a change comes at the last minute from a court, it can well be justified if the state has engaged in deliberately bad conduct. In these circumstances, as I’ve written, I don’t expect Justice Breyer to be a fifth vote for a “courtesy stay.”
So here’s my prediction: stay denied by the Supreme Court, either without comment, or with a dissent from Justices Alito and Thomas.
[This post has been updated.]