Breaking: #SCOTUS 4-4 Tie in NC Voting Case Leaves Lower Court Ruling in Place and Shows Us Power of Appeals Courts Post-Scalia

The Supreme Court has denied a stay in the North Carolina voting case, with the Justices mostly dividing 4-4. The stay order indicates that the Chief Justice, Justice Alito, and Justice Kennedy would have granted the stay except with respect to the preregistration requirement; Justice Thomas would have granted the stay completely. That makes up only 4 votes, thanks to the absence of a 9th Justice, leaving a 4-4 tie.  Here are the big takeaways from this result:

  1. 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.
  2. 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.
  3. 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.
  4. 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.
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