Why Breyer and Kagan Did Not Dissent in NC Voting Case, and What That Tells Us About WI Voter ID Case

Yesterday’s Supreme Court order in the North Carolina voting case (which Justin covered here while I was travelling and which Howard rounds up) reached the result I had been expecting: a reversal of the 4th Circuit order restoring same day voter registration and the counting of certain out-of-precinct ballots for the upcoming election.  But the order had some surprises, and it may shed light on the other big pending case, Wisconsin’s voter id case.

The first surprise was the timing. The order did not come until about 7 pm on the East Coast (here’s Lyle’s SCOTUSBlog coverage).  Given the delays in the case (which seem to be at least in part due to Justice Ginsburg’s and Justice Sotomayor’s dissent), why release at 7 pm and not wait until the next day?  This suggests to me that there may have been more going on behind the scenes. Justice Ginsburg is known as a quick writer and what she wrote would not have taken so long. There could have been discussions or negotiations that are not clear from the brief order.

Which brings me to the second and more important surprising point: this was not a 5-4 decision; it was a 7-2 decision. Why did Justices Breyer and Kagan not join with Justices Ginsburg and Sotomayor in dissent? (Update: A reader notes they could have privately dissented without joining Ginsburg.)  There are both substantive and strategic possibilities. Substantively, Justices Breyer and Kagan could well agree with me that ultimately North Carolina’s law, which I’ve dubbed the strict set of voting restrictions we’ve seen enacted as a package since the passage of the 1965 Voting Rights Act, should be found unconstitutional. But even so, under the Purcell v. Gonzalez principle, it was wrong for the 4th Circuit to make this change in the rules so close to the election (particularly where plaintiffs waited a while to seek a preliminary injunction [this has been corrected]).

But there’s a strategic angle here as well.  The Purcell issue looms very large in the Wisconsin voter id case. That is, even if the Supreme Court ultimately would say that Wisconsin’s law is constitutional and does not violate the Voting Rights Act, this is a very strong case under Purcell.  (As I explained, the key question is whether Wisconsin has a strong enough state interest in its sovereignty over elections to implement a voter id law very quickly before the election, when there has been no preparation and when the undisputed evidence shows that, by the state’s own account, up to 10 percent of the state’s voters could be disenfranchised (a position the 7th Circuit en banc dissenters called shocking).

By not joining Ginsburg in the NC dissent, Kagan and Breyer are ready to (1) appeal to Justices Kennedy and Chief Justice Roberts under the Purcell principle, using an argument of consistency and/or (2) write a very strong dissent excoriating the majority for allowing WI’s voter id law to go into effect now when it literally can disenfranchise thousands of Wisconsin voters.

How will it look if the five conservative Justices stand on the side of Republicans in the Ohio, North Carolina, and Wisconsin cases? Very bad.

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