I have now had a chance to read North Carolina’s 32-page petition (with an extensive appendix) asking for the Supreme Court to reverse an order issued by the 4th Circuit on a 2-1 vote requiring North Carolina to restore same day voter registration and the counting of out of precinct ballots in the upcoming election. It is quite a feat to file such an impressive document in just a little more than 24 hours after the 4th Circuit’s decision, regardless of whether NC ultimately should prevail. [The Chief Justice has now ordered a response by September 5 at 5 pm, two days earlier than the response is due in the WI case.]
I think there is a good chance North Carolina will prevail in on this emergency motion and get these changes stopped, even though I believe that North Carolina’s ominbus bill, which contains the toughest set of voting restrictions I’ve seen in a single law passed anywhere since the passage of the 1965 Voting Rights Act, should be found to be unconstitutional. (My theory — advanced in this Harvard Law Review Forum piece–is that it should be unconstitutional for a state to impose significant burdens on voters for no good reasons or for partisan reasons.)
The state makes two main arguments in support of its position.
1. The 4th Circuit’s reading of section 2 of the Voting Rights Act is too broad. The 4th Circuit majority had offered a generous but reasonable reading of the scope of section 2 of the Voting Rights Act. The district court had offered a much narrower reading of the scope of section 2. As I explained in my piece in Slate this week, the conservative 5-Justice Supreme Court majority is ultimately likely to side with the narrower view of section 2 and not find the North Carolina cutbacks to be a section 2 violation. Because one of the key factors in considering whether the Supreme Court should grant this emergency relief is the likelihood that North Carolina will be successful in the Supreme Court (should the Court take the case), the merits matter for the stay.
2. North Carolina also makes much of the chaos it sees (and the affront to state sovereignty it objects to) in changing the election rules so close to the objection. This is the Purcell objection, and it is in play in the North Carolina case as well. The main difference in the 4th Circuit between the majority and the the dissent was over the question whether making these changes now is going to cause confusion and impose a burden on election officials and the state in light of Supreme Court admonitions not to change election rules so close to the election. North Carolina says that poll workers cannot deal with these changes at this late date. As I indicated in a post last night, the Purcell delay issue is tricky for opponents of both Wisconsin’s and North Carolina’s laws. Both involve last minute changes, but WI involves a new restriction while NC involves lifting new restrictions. Both change the status quo. The question is whether the cases can be distinguished on the risk of disenfranchising voters.
It seems quite likely that the Purcell issue leads the Court to issue stays in both WI and NC, which also has a nice political appeal to it—as opposed to all 5 conservative Justices voting in favor of voting restrictions in OH, WI and NC and all 4 liberal Justices voting against the voting restrictions.
[This post has been updated.]