Eighth Circuit, Citing Purcell Principle About Not Changing Election Rules Close to Elections, Rejects North Dakota’s Attempt to Revive Voter ID Law for Now

Order: The State of North Dakota moves to stay the district court’s injunction of April 3, 2018, concerning certain subsections of the North Dakota elections statute, N.D.C.C. § 16.1-01- 04.1. Based primarily on the imminent primary election date of June 12, 2018, the motion for stay is denied. See Purcell v. Gonzalez, 549 U.S. 1, 4-5 (2006) (per curiam); Williams v. Rhodes, 393 U.S. 23, 34-35 (1968); Veasey v. Perry, 769 F.3d 890, 892-95 (5th…

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After the Maryland Redistricting Argument at the Supreme Court, Will the Effort to Rein In Partisan Gerrymandering End with a Whimper?

When the Supreme Court agreed to hold a full hearing in the Maryland redistricting case, Benisek v. Lamone, many of us wondered why the Court set a full hearing rather than simply hold the case for resolution of the Gill v. Whitford partisan gerrymandering case from Wisconsin, which the Court heard in October. I advanced four possible theories: congressional vs. state redistricting; one district challenge vs. statewide challenge; First…

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Federal Court Which Struck Down Texas Voter ID Law Allows Its Use in Sept. 9 Local Elections

…This order makes sense given the Purcell Principle. Still pending are requests in the district court and 5th Circuit to allow Texas to continue to enforce its voter id law pending appeal (which could well take a year or more). I expect the district court to reject that broader request, and I’m not sure what will happen in the Fifth Circuit or, potentially, at the Supreme Court….

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“State seeks to keep voter ID law in place for handful of elections”

…Express News: Less than a week after a judge tossed Texas’ voter identification law, the state is asking permission to keep the requirements in place for a handful of upcoming elections in which early voting had already been underway. Looks like there’s a strong case for that under the Purcell Principle….

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“The Supreme Court is in no hurry to protect voters from gerrymandering”

I have written this piece for the Washington Post’s PostEverything. It begins: When it comes to assuring fair elections, the Supreme Court has a new message: Voters can wait. Its recently completed term featured two key redistricting votes in which the court turned away temporary relief for voters as the court considered each case — not because these voters would eventually lose, but because the justices refused to put voters’ interests…

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Student Election Law Symposium at Berkeley Law on April 7

Announcement via email:  On Friday, April 7, ElectionLaw@Boalt (EL@B), a student group at Berkeley Law, is hosting its First Annual Election and Political Law Symposium, titled “The Future of Democracy.” The Symposium includes five events throughout the day that focus on political law, voting rights, and election administration. Our lunchtime event will be a workshop with the Voting Rights Institute, and our keynote panel includes a…

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Blogging Break and Happy Holidays!

Blogging will be light through New Year’s–-regular ELB News and Commentary mailings for Election Law listserv members will resume on January 3. Once again it has been a busy year for the Election Law Blog and, with all the surprises of 2016, who knows what 2017 will bring?  I certainly didn’t expect to be covering so much on the Constitution’s Foreign Emoluments Clause of all things. I was honored that the Election Law Blog remains…

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FSU Law of Democracy Symposium Now in Print

Available here and featuring: The Law of Democracy At a Crossroads: Reflecting on Fifty Years of Voting Rights and the Judicial Regulation of the Political Thicket, by Franita Tolson A “Checklist Manifesto” for Election Day: How to Prevent Mistakes at the Polls, by Joshua A. Douglas The Coordination Fallacy, by Michael D. Gilbert & Brian Barnes Reining in the Purcell Principle, by Richard L. Hasen Race, Shelby County, and the…

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“Longtime Maricopa Recorder Helen Purcell Defeated For Re-Election”

Doug Chapin: As she prepares to hand the reins to her successor, I want to recognize Helen for her years of service not just to Maricopa voters but also to the national election community. I had the opportunity to tour the election office in Phoenix years ago, and was impressed at how well Helen and her team managed such a sprawling operation. Her tenure may not have ended the way she wanted, but her contributions to the field are considerable…

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“Supreme Court Attempts To Slow Flood Of Last-Minute Election Litigation”

Chris Geidner for BuzzFeed: The Supreme Court attempted to slow an ever-expanding map of pre-election litigation on Saturday — sending a message to lower courts that the time had passed for rulings that would change the way election laws are implemented for Tuesday’s election…. For election law lawyers, it is a message that the so-called “Purcell principle” — referring to an earlier Supreme Court election law case — remains in effect. The…

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Breaking: Supreme Court Halts AZ “Ballot Harvesting,” With No Noted Dissents

Order with no noted dissents. Yesterday I explained: Aside from the merits of this decision (which I discussed in this post), there is a whole lot going on in this opinion about proper application of the Purcell principle (as in, when courts should act at the last minute in voting cases to protect voting rights) as well as the proper application of en banc procedures in this case (the case proceeded from an en banc call to an immediate order…

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Breaking: Federal Court Temporarily Lifts CO Ban on Most Ballot Selfies for Upcoming Election

From the court’s 28 page opinion and order: The Court therefore ORDERS that Defendants Mitch Morrissey, in his official capacity as District Attorney for the Second Judicial District, and Cynthia Coffman, in her official capacity as Colorado Attorney General, are enjoined from enforcing Colorado Revised Statute § 1-13-712(1) by prosecuting, referring for prosecution, and/or investigating violations thereof, or instructing any person to…

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Breaking and Big: En Banc 9th Circuit, on 7-4 Vote, Won’t Require AZ to Count Ballots Cast Out of Precinct; Next to #SCOTUS?

The other shoe just dropped in Arizona. The Ninth Circuit, en banc, issued this short order declining an injunction pending appeal on the en banc case, and making it clear that when the en banc court considers this matter fully, what will not consider whether such ballots cast in this election should be counted. The court gave a quick cite to the Purcell principle in a short order. This is a big deal, because there will be a lot of these…

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Breaking: 9th Circuit, on 6-5 Vote, Allows AZ “Ballot Harvesting” for This Election, Leaving Possible #SCOTUS Action

You can find the opinions (including two dissents) at this link. Aside from the merits of this decision (which I discussed in this post), there is a whole lot going on in this opinion about proper application of the Purcell principle (as in, when courts should act at the last minute in voting cases to protect voting rights) as well as the proper application of en banc procedures in this case (the case proceeded from an en banc call to an…

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Breaking: 9th Circuit Grants En Banc in AZ Case Involving Counting Out-of-Precinct Ballots

Order. (Confusingly, there are now two en bancs named Feldman stemming from the same AZ case: this one on out of precinct ballots and the other on “ballot harvesting”). From my coverage yesterday: Same panel as in the other aspect of the Feldman case, same 2-1 split: this time, whether Arizona’s rule that ballots cast by a voter in the wrong precinct should not count (for those races that the voter was eligible to vote in) violates…

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Breaking: Federal Court Rejects PA GOP Efforts to Send Poll Watchers to Different Counties to Look for Voter Fraud

Under Pennsylvania law, poll watchers must be from the same county in which they are registered to vote. Republicans failed to change that law in the legislature, and the PA Republican party filed a federal lawsuit seeking to make the change. When the suit was filed, I indicated I thought it had little chance of success. And now a federal district court has issued this 28 page opinion rejecting the challenge. Part of the reason is timing…

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9th Circuit, on 2-1 Vote, Rejects Argument AZ Must Count Ballots Cast in the Wrong Precinct

Same panel as in the other aspect of the Feldman case, same 2-1 split: this time, whether Arizona’s rule that ballots cast by a voter in the wrong precinct should not count (for those races that the voter was eligible to vote in) violates Section 2 of the Voting Rights Act. The district court denied the preliminary injunction. The 9th Circuit, in a Judge Ikuta opinion, affirmed, relying in part on the Purcell princple. Chief Judge Thomas…

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Breaking: Divided 9th Circuit Agrees to Hear AZ Ballot Harvesting Case En Banc, But J. Reinhardt Predicts Plaintiffs Will Lose

On October 30 I wrote the following post: Arizona passed a law limiting who is allowed to collect a completed absentee ballot from voters (so called “ballot harvesting”). Democrats and others filed suit claiming that the law was unconstitutional and a Voting Rights Act violation. A divided 9th Circuit panel voted 2-1 to allow Arizona to enforce the law pending further proceedings (affirming the district court denial of a preliminary…

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CA Ban on Ballot Selfies Stands This Election as Judge Denies TRO

…Ross Todd reports the judge so ruled it is because the ACLU waited too long to file suit (and it doesn’t matter that the law changes on Jan. 1). This is in line with the recent Sixth Circuit ruling: “Call it what you will—laches, the Purcell principle, or common sense—the idea is that courts will not disrupt imminent elections absent a powerful reason for doing so.”  …

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Divided 9th Circuit Rejects Dems’ Voting Challenge to AZ “Ballot Harvesting” Law, But En Banc May Be Coming

  Arizona passed a law limiting who is allowed to collect a completed absentee ballot from voters (so called “ballot harvesting”). Democrats and others filed suit claiming that the law was unconstitutional and a Voting Rights Act violation. A divided 9th Circuit panel voted 2-1 to allow Arizona to enforce the law pending further proceedings (affirming the district court denial of a preliminary injunction). The judges divided…

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Breaking: Divided 6th Circuit Restores Michigan Ban on Ballot Selfies for this Election

A majority opinion (by Judge Sutton), a concurrence, and a dissent. Judge Sutton’s main point is that this comes too late in the election season for Michigan to make a change now: “Call it what you will—laches, the Purcell principle, or common sense—the idea is that courts will not disrupt imminent elections absent a powerful reason for doing so.” (More on the Purcell principle). But Judge Sutton also takes a nod at the…

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Breaking: WI Voter ID Judge Won’t Scrap Law for Election, Will Order State to Give Better Information to Voters

…See the series of tweets from Patrick Marley. The judge apparently invoked the Purcell Principle against making changes too close to the election, but said plaintiffs could go back to 7th Circuit for emergency relief. Marley: “Judge says he will “patch up” system that handles getting voting credentials to people with the most difficulty getting IDs.” More to come….

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More on the Ruling on Election Day Registration in Illinois

Here.[corrected] Although Think Progress criticizes the ruling, I tentatively think it is right on the merits for reasons I expressed in When is Uniformity of People, Not Counties, Appropriate in Election Administration? The Cases of Early and Sunday Voting”, 2015 University of Chicago Legal Forum 193 (2015). But perhaps the ACLU is right that the proper remedy is to expand EDR to all the counties in Illinois. Aside from the merits, the…

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DC Circuit Finds Evidence of Threat of Non-Citizen Voting Very Minor in Kobach-EAC Case

Back on September 9, the DC Circuit issued an order in one of the EAC cases, holding that the district court should have issued a preliminary injunction against the order put out by EAC Director Brian Newby (without getting approval of the EAC Commissioners) giving Kansas and a few other states the ability to demand documentary proof of citizenship before someone could vote using the federal voting form. This was a huge deal as it was litigated…

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Helen Purcell, Maricopa Voting Chief, Says She’s Won Primary by 185 Votes

Wow, 154,682 to 154,497. Purcell’s been in charge of the vote counting, including in her own race, and there could be a request for a recount or a contest. Raises questions of what precautions jurisdictions take when the chief election officer is herself on the ballot. Purcell was blamed for the very long lines during the Arizona primary earlier this year. And of course she’s the unwitting lender of her name to the Purcell

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Michigan Asks for Emergency #SCOTUS Relief in Straight-Ticket Voting Case

Yesterday I reported that Michigan lost a bid for en banc review of a stay a trial court order stopping Michigan from getting rid of straight-ticket (party lever) voting, on grounds that doing so would be a Voting Rights Act violation. Now Chris Geidner reports that Michigan is seeking emergency relief at the Supreme Court in this case, and it wants a resolution by Sept. 8. That’s a tight time frame with Labor Day weekend. (In the Ohio…

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Why Did Paul Clement Craft His NC Voting Brief as If Scalia Was Still Alive? A Theory

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…

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DOJ and Private Plaintiffs File #SCOTUS Responses in NC Emergency Voting Case

Private Plaintiffs’ response. DOJ’s response. Chief Justice Roberts can now decide this motion himself or refer to the Court. (NC might try to draft a reply by tomorrow).  I’d expect a decision early next week. Here’s what I said about the chances when NC filed its emergency motion: But there are two reasons to believe the Purcell argument is unlikely to gain a fifth vote here: first, the timing problem is North…

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WI Files Reply Brief in One Wisconsin Now Early Voting 7th Circuit Stay Request

You can read it here.  A snippet on the Purcell issue: Equally remarkably, Plaintiffs assert that the risk of “voter confusion,” Purcell v. Gonzalez, 549 U.S. 1, 4–5 (2006), favors them. Resp. 19–20. The injunction revised laws have been on the books for years. Yet Plaintiffs suggest that, after the district court issued a 119-page opinion on a recent Friday evening and a few newspapers wrote about it, Wisconsin’s voters adjusted—virtually…

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Breaking: North Carolina Files Emergency #SCOTUS Stay Request in Voting Case

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…

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Close of Business Friday, and No NC “Emergency” SCOTUS Petition in Voting Case: Why?

And now the Purcell Principle works against the state of North Carolina, which has been living with, and preparing to implement, the 4th Circuit North Carolina ruling for two full weeks. A stay imposed by the Supreme Court at this point threatens to confuse voters further, and to make election administrators’ life hell. The whole reason the 4th Circuit issued its opinion in July is because it had assurances from the state that this would…

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Breaking: WI Voter ID Plaintiffs File Emergency 7th Circuit En Banc Petition for ID Softening

Via Josh Gerstein comes this petition, filed very quickly by the Voting Rights plaintiffs in the Wisconsin voter id case. It asks the full 7th Circuit to reverse the stay of the affidavit softening order by the trial court in the Wisconsin voter id case. As I explained yesterday: In an order issued today, the Seventh Circuit in Frank v. Walker has put on hold the softening of Wisconsin’s voter id law which a trial court had ordered a few weeks…

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Breaking: 7th Circuit Reverses (for Now at Least) Softening of WI Voter ID Rule: What’s Next?

In an order issued today, the Seventh Circuit in Frank v. Walker has put on hold the softening of Wisconsin’s voter id law which a trial court had ordered a few weeks ago. That softening required Wisconsin officials to accept an affidavit from a voter that he or she had a reasonable impediment to getting one of the narrow ids WI allows for voting in the election. It was a very broad affidavit which would allow many more people who lack…

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Final Version of My “Reining in the Purcell Principle” Article Now Available

Just in time for the 7th Circuit to consider softening Wisconsin’s voter id law and the Supreme Court to consider North Carolina’s law, here’s the final version of my paper, Richard L. Hasen, Reining in the Purcell Principle, 43 FSU L. Rev. 427 (2016)  [corrected link] (part of a great election law symposium, about to be released by the Florida State University Law Review).  The paper concerns whether court-ordered changes to…

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4th Circuit Denies Stay, Sending NC to #SCOTUS for Possible Stay in Voting Case

Following up on this post, here’s today’s docket notation: COURT ORDER filed [999904865] denying Motion to recall mandate [155]; denying Motion to stay mandate [FRAP 41(d)]. [155] Copies to all parties. And from the opinion, the 4th Circuit tries to preempt a Purcell principle timing issue: Moreover, recalling or staying the mandate now would only undermine the integrity and efficiency of the upcoming election. “Court orders…

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The Calendar of Election Litigation: Why Early August is the New Late September

This blog has a flow. I usually spend around 30 minutes in the morning or evening with my updates, punctuated with additional posts throughout the day as events warrant and as my schedule can handle it. Things change in election years, especially presidential election years. There’s more litigation, and more interest in the election. More press interviews for me, and less time for my real writing. (I’m trying to write a book.)  In…

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NC Wants 4th Circuit Stay in Voting Case, Pending #SCOTUS Decision to Hear Case

See this motion filed by the state of North Carolina in the voting case. As ELB readers will recall, the 4th Circuit blocked aspects of North Carolina’s voting law, including its strict voter id law, on grounds the law was passed with racially discriminatory intent. The state’s option to appeal would be to ask either the full 4th circuit en banc to hear the appeal or to go to the Supreme Court. In the motion filed now, NC says it is…

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Breaking and Analysis: (Another) Federal Court Strikes Restrictive WI Voting Rules

In a 119-page opinion, a federal district court has struck a host of WI voting rules, including certain voter id provisions, as unconstitutional. Among other things, the court has ordered that expired but otherwise valid student id cards will be valid for voting. This is yet another win for voting rights activists in the past few weeks. The trial court enjoined the following WI laws:  most of the state-imposed limitations on the time and…

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Unique and Important “Case Study” Database of Emergency Election Litigation Created by Federal Judicial Center

Back in 2012, I first noted this resource under development. This database at the Federal Judicial Center has now grown to over 340 cases, and is a treasure trove of data. For some of the cases, it gives some information not available elsewhere, such as a judge’s reasoning not in any written opinion but contained only in a transcript. Here’s another example, from the write-up on the Purcell v. Gonzalez case (which is the origin of…

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FELN Files Amicus Brief on Purcell Timing Issue in Kansas EAC Appeal

…You can read the brief at this link. The article sounds some of the themes I put forth in Reining in the Purcell Principle, Florida State University Law Review(forthcoming 2015) (draft available) (this article has been forthcoming for about as long as we’ve been waiting for a decision in the TX redistricting case)….

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Breaking and Analysis: Divided 5th Circuit Holds Texas Voter ID Law Violates Voting Rights Act

In 203 pages of opinions, the 5th Circuit, sitting en banc, issued an opinion holding that Texas’s voter identification law, one of the strictest in the country, violates section 2 of the Voting Rights Act. Here is my first take, with more to come later. The bottom line is that the majority of the 5th Circuit has done what the panel opinion had originally held: there is a remand on the question whether Texas acted with a discriminatory…

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Breaking: Federal District Court Softens WI Voter ID Law, Allowing Affidavit in Place of ID

You can find Judge Adelman’s 44-page order here. I’m about to jump on a call, and so I will post more later. But suffice to say that this is a very big deal, and at first blush (subject to closer review) it is not clear to me that this broad relief will be upheld by the 7th Circuit panel that upheld Wisconsin’s voter id law in the first place. UPDATE: I have now had a chance to read the order in Frank v. Walker and I offer…

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“Lawsuit Filed to Protect Voting Rights in Maricopa, Arizona Following Recent Presidential Preference Primary Election Fiasco”

Release: Today, the Lawyers’ Committee for Civil Rights Under Law (Lawyers’ Committee), Manatt, Phelps & Phillips, LLP, and Osborn Maledon filed a lawsuit challenging the decision to reduce the number of polling places for the March presidential preference election (PPE) in Maricopa County from 403 in 2008, to 211 in 2012, to just 60 this year. The suit, brought in Arizona Superior Court names Arizona Secretary of State Michele Reagan,…

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Johnstone: Thoughts on Montana Campaign Finance Decision

The following is a guest post from Anthony Johnstone: The Purcell Principle is absent in the Lair v. Motl court’s repeatedly bad timing. Recall its last order invalidating Montana’s contribution limits came down just a month before the 2012 general election. Now, even though the general election is in November, the primary election (subject to its own per-election contribution limits) is in just three weeks! Yet a separate state law principle…

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Breaking: #SCOTUS Denies Emergency Relief in Texas Voter ID Case, But Signals Full Decision in Time for November Elections

The Supreme Court has just issued this order: The application to vacate the stay entered by the United States Court of Appeals for the Fifth Circuit on October 14, 2014, presented to Justice Thomas and by him referred to the Court is denied. The Court recognizes the time constraints the parties confront in light of the scheduled elections in November, 2016. If, on or before July 20, 2016, the Court of Appeals has neither issued an opinion on…

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4th Circuit Panel Which Partially Reversed NC Voting Decision in 2014 Likely to Get Case Back on Appeal

in my earlier post, Breaking and Analysis: Federal District Court Upholds Restrictive NC Voting Law in 485-Page Opinion, I wrote that success on appeal in the North Carolina case could well turn on which judges on the 4th Circuit hear the case (and potentially whether the case goes en banc and later to the Supreme Court). Readers may remember that the same trial judge who decided yesterday’s case, Judge Schroeder, was partially reversed…

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Breaking and Analysis: Federal District Court Upholds Restrictive NC Voting Law in 485-Page Opinion

Federal district court judge Thomas Schroeder has issued this 485-page opinion considering constitutional and Voting Rights Act challenges to North Carolina’s 2013 restrictive voting law (which I have discussed in a number of places including this Harvard Law Review forum piece, Race or Party?: How Courts Should Think About Republican Efforts to Make it Harder to Vote in North Carolina and Elsewhere). This is a careful, erudite, yet…

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