I had been puzzling over Paul Clement’s brief in the North Carolina voting case. (And I wasn’t the only one.) Former Solicitor General Clement is one of the ablest Supreme Court lawyers around, and yet the brief was written as if there were still a five Justice conservative majority on the Court. One of his main pitches in the brief was that the 4th Circuit’s decision striking down key parts of North Carolina’s strict voting law was in tension with the Supreme Court’s 2008 decision in the Crawford case upholding Indiana’s voter id law, and that if allowed to stand, the 4th Circuit opinion would eviscerate the Court’s 2013 decision in Shelby County, striking a key part of the Voting Rights Act.
How could this be calculated to gain a fifth vote on a 4-4 SCOTUS with four liberal Justices? Indeed, my UCI Law colleague Leah Litman playfully edited Clement’s brief to make the point that liberals on the Court would be delighted if the 4th Circuit found a way to undermine Crawford and reverse the effects of Shelby County.
Surely Clement knows this, and a better pitch in the brief would have been to argue solely that 4th Circuit ruling came too close to the election, violating the Purcell principle. So what gives?
Here’s my new working theory: Clement knew NC were going to lose because (1) there was no way to get one of the liberal Justices to defect and (2) because they state waited so long to file and its best argument was one not on the merits but on delay. So he pitched their brief to the conservatives (saying that the 4th Circuit opinion was eviscerating Shelby County) so that they could paint the loss as caused by the “liberal Justices” on the Supreme Court. That’s exactly how McCrory pitched it in his statement when the stay was denied: “Even without any support from our state’s attorney general, we were pleased that four justices, including Chief Justice John Roberts, agreed with this right while four liberal justices blocked North Carolina protections afforded by our sensible voter laws.”
The broader question of how one writes a brief (emergency or otherwise) to capture 5 Justices on an ideological, evenly divided brief remains a great one to consider.