“Smoking Gun Memo Could Bolster Voting Rights Case Against North Carolina”

Must-read Tierney Sneed for TPM:

North Carolina’s Republican Party has had an interesting response to a recent appeals court ruling that said a number of voting restrictions passed by the state’s GOP legislature were enacted with the intent to discriminate against minorities, specifically African Americans. In their scramble after the ruling, party operatives and local Republican officials have perhaps inadvertently provided more evidence that the restrictions were passed with the intent to discriminate.

The most egregious example was a memo sent by North Carolina Republican Party executive director Dallas Woodhouse to county election officials urging them to continue to push for reductions in voting access, in which he explicitly spelled out a partisan motivation.

The memo came as the state is asking the Supreme Court to reverse the appeal court ruling, and restore for November’s election some of the restrictions the appeals court struck down. And it may provide additional fodder for the voting rights advocates fighting the state’s restrictions.
“It was stunning and stupid,” Daniel Tokaji, an elections law professor at Ohio State University. “Stunning that somebody would be so brazen about his and the party’s objective, and stupid in the sense it really seems to me to undercut their arguments to get the Supreme Court review that the lawyers had made.”…

“Many of the jurisdictions feel that they are on the receiving end of a liberal decision that will help Democrats in elections. They are going to do whatever they can to re-enact the laws within the bounds that the court has allowed,” said Nate Persily, an election law professor at Stanford University. “Their resistance is expected, given that they are afraid that the court’s decision will accelerate a Democratic tide in the presidential election.”

But their efforts, coupled with Woodhouse’s memo, may inadvertently make it easier for the the restrictions’ legal opponents to prove their point to the Supreme Court.

“In the Supreme Court, there’s usually no introduction of material not in the record of the court below. The Supreme Court generally cannot engage in fact finding,” Rick Hasen, a professor at UC-Irvine School of Law who runs the Election Law blog, said in an email to TPM. “Nonetheless, it would not surprise me for some of the plaintiffs to cite news reports on this to make the claim that this is further evidence of discriminatory intent and that the Fourth Circuit got it right. And the Justices (or their clerks) are no doubt aware of this in any case.”

According to Persily, North Carolina’s monkeying with county protocols could invite not just a stay denial, but also a written explanation that backs up the 4th Circuit’s findings.

“The critical question is whether the court, whether five members of the court, think it’s important to send a signal to the lower courts and to the jurisdictions on the run up in this election,” Persily said.

Tierney’s piece also links to this new statement from Woodhouse defending his earlier email.

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