Via Chris Geidner’s story on the Supreme Court’s refusal (on a 4-4 deadlock) to stay the 4th Circuit order stopping some of North Carolina’s strict voting laws, comes this curious statement from North Carolina’s governor, Pat McCrory:
“North Carolina has been denied basic voting rights already granted to more than 30 other states to protect the integrity of one person, one vote through a common-sense voter ID law,” McCrory said in the statement. “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.”
So we have been thinking about these cases as pitting the voting rights of voters (who after all vote) against the state’s interests in limiting the vote, for reasons such as fraud prevention, public confidence administrative convenience, policy choice, etc. (Leave aside how strong these reasons are for our purposes). We don’t usually talk about states, which don’t vote, as having voting rights.
So what’s up with this statement?
Maybe the governor’s press release writer got confused. More likely, this is a version of a state’s right’s argument, in which the state has the right to craft voting as it sees fit. Still, it is a strange phrase I haven’t seen used in this context before.
Josh Altic and Geoff Pallay NYT oped.
NLJ’s Marcia Coyle for the Supreme Court Brief:
The lawyers in all three cases have been in close coordination, said Mayer Brown’s Kimberly. If a decision is announced in the Wisconsin case by mid-September, he said, there will sufficient time to get the case before the justices in the new term.
“Hopefully we’ll see a grant of probable jurisdiction in Whitford and the justices will hear argument on what is predominantly an equal-protection approach to the state legislative redistricting issue,” he said. “And then in the following term, the Shapiro case will be up on the First Amendment approach to congressional redistricting.”
As Michael Wines reported in today’s NY Times, the 4th Circuit’s order in the North Carolina voting case had the effect of restoring an older law that gives discretion to counties to set early voting days and sites. A Republican party official has been pushing these boards (which are 2-1 Republican) to cut back on early voting dates and sites to hurt Democrats. The guy, Dallas Woodhouse, got caught sending an email about this to this effect and then told the NY Times that this was all about “rebalanc[ing] the scales” after Democrats made it easier for folks to vote.
Now, in the longer term, Woodhouse’s comments, and the actions of the boards, and eventually the state election board, could figure into an attempt to use Section 3 of the Voting Rights Act to get North Carolina back under federal supervision of its voting.
In the short term, there could well be court actions should early voting days get scaled back too much. Whether that works or not, we’ll have to wait and see. But Democrats could well try, if only to keep the issue in the news that (1) Republicans are making it harder, not easier for people to vote; and (2) that burden falls on people most likely to vote for Democrats.
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:
- 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.
- 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.
- 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.
- 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.
…and apparently on a plane with no wifi, so check out How Appealing, SCOTUSBlog, and Political Wire for the latest news. I also highly recommend Chris Geidner’s twitter feed for latest election law and legal updates.
More updates tonight.
Pam Karlan has posted this draft on SSRN (forthcoming, Ohio St. L.J.). Here is the abstract:
In recent years, courts have been called on to adjudicate a new series of cases involving vote denial — practices that prevent individuals from casting a ballot or having that ballot counted. The upsurge in cases claiming vote denial (as opposed to vote dilution) is the product of a confluence of forces. The Voting Rights Act’s preclearance regime, which had significantly prevented new forms of vote denial in covered jurisdictions effectively disappeared after the Supreme Court’s 2013 decision in Shelby County v. Holder. And increased partisan polarization, combined with politicians’ views about the relationship between turnout and election results led Republican-dominated legislatures to impose new restrictions and to cut back on expansions previously implemented by Democrats.
How should courts analyze these claims under the Voting Rights Act? Recently, the courts have appeals have begun to coalesce on a two-part framework: First, the challenged practice “must impose a discriminatory burden on members of a protected class, meaning that members of the protected class ‘have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.’” Second, “that burden ‘must in part be caused by or linked to “social and historical conditions” that have or currently produce discrimination against members of the protected class.’” But they continue to recognize that their inquiry must be shaped by the statute’s totality of the circumstances requirement and show be informed by a series of factors laid out by the Supreme Court and Congress in the context of vote dilution claims.
This article explores how those factors should work in vote denial cases. First, neither an actual nor a predicted decrease in minority turnout should serve as a necessary precondition to a section 2 results claim alleging vote denial. There are theoretical, doctrinal, and practical reasons for treating election results as a relatively minor consideration with respect to the discriminatory burden prong of the emerging framework. If anything, data or predictions about turnout effects are more relevant to the question whether the challenged practice is tainted by an impermissible purpose than they are to determining the existence of a discriminatory burden.
Second, courts in section 2 vote-denial cases should be guided by the Voting Rights Act’s overall commitment to expanding the opportunity for minority citizens to participate in the political process. Particularly when confronted with a challenge involving a provision that reduces preexisting opportunities to vote, courts should not hesitate to find that the new provision constitutes a “burden” under the emerging framework. Giving evidentiary weight to the existence of a change does not impermissibly import the retrogression standard of section 5 into section 2.
Third, whether the policy underlying the challenged practice is “tenuous” (the final Senate Report factor) of necessity plays a more central role in vote denial cases than it has in vote dilution cases. This does not transform the results test into a purpose inquiry; rather, it is a question of the fit between the policy and the burden. The strength of the government’s proffered policy justifications goes to the heart of whether the practice imposes a burden and whether that burden is discriminatory. More particularly, in vote denial cases, partisan motivations, regardless of whether they rise to the level of an independent constitutional violation or suffice to prove a racially discriminatory purpose, are tenuous as a matter of law and should impose a burden of justification on a defendant jurisdiction.
This goes to the top of the reading pile.
Nate Cohn for NYT’s The Upshot.
Part of the SCOTUSBlog symposium on the Court after Scalia.
Ed is the guy behind the Shelby County and the Evenwel cases.
You can find my take on the question here in the SCOTUSBlog symposium.