I have written this piece for Slate. It begins:
The future of voting rights in the medium to long term is not rosy. President Donald Trump is making false claims that millions of voters fraudulently cast ballots in the 2016 election, perhaps as a predicate to a round of federal laws making it harder to register and vote. His administration seems poised to do a 180 in a case challenging Texas’ strict voter identification law, abandoning the Obama administration’s position that the law was discriminatory. Judge Neil Gorsuch, if confirmed, is likely to restore the Supreme Court to a Scalia-era status quo, a 5–4 court skeptical of broad protection for voting rights.
But in the short term, there’s one simple action that could make voting rights a bit more secure: Roy Cooper, the new Democratic governor of North Carolina, and the state’s new Attorney General Josh Stein should withdraw a petition for writ of certiorari pending at the Supreme Court to review the 4th Circuit’s decision striking down North Carolina’s strict voting law.
A bit more:
The theory is intriguing, even if, as I believe, courts may be better suited to allow plaintiffs to directly target laws aimed at party discrimination rather than race discrimination. It deserves further development in the lower courts. But if the Supreme Court with a new Justice Gorsuch takes the case, there is good reason to believe the court would wipe that theory out in reversing the decision. Last year, North Carolina and its then-Republican Gov. Pat McCrory sought emergency relief before the election, and at that point the Supreme Court divided 4–4, with all the conservatives voting to grant relief. That’s a good indication that, with a Gorsuch fifth vote on their side, they would likely reverse.
But there may be a way out. North Carolina officials, when McCrory was still in charge, got extensions and waited until just a few days before McCrory left office to file the cert petition asking the Supreme Court to review the 4thCircuit’s decision. State officials probably wanted to run out the clock so that the Obama Department of Justice would not have time to craft an opposition. But a day before Obama left office, the DOJ filed the opposition early. The NAACP and the other plaintiffs just now filed their own opposition to the Supreme Court’s review.
For all we know, the Trump administration will soon come in and withdraw the U.S.’s brief in opposition. But North Carolina’s new Democratic governor and attorney general likely have an option too. Under North Carolina law, the governor and attorney general get to control the state’s litigation, even when an agency is involved. Here, the agency involved is the North Carolina Board of Elections, which for now remains headed by a Republican. But state law does not let that board choose outside counsel to represent its interests without approval of the governor or the attorney general. So it looks like nothing would stop Gov. Cooper and AG Stein from simply withdrawing the cert petition, leaving the North Carolina case on the books and denying the Supreme Court a chance to grant review. Even if something prevents withdrawal of the petition, Cooper and Stein could file a letter disagreeing with the earlier position of the state in the cert petition.