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 Carolina’s fault. The fourth circuit specifically addressed the timing issue in its denial of a stay, pointing out the assurances the state gave the fourth circuit that a decision by the end of July would be enough time to implement its decision. And they waited SEVENTEEN DAYS to file this thing. Second, there is a finding of intentional discrimination here, and as I argue in my piece Reining in the Purcell Principle, such a finding should weigh heavily on a court in considering whether a last minute change is warranted. That is, even if a change comes at the last minute from a court, it can well be justified if the state has engaged in deliberately bad conduct. In these circumstances, as I’ve written, I don’t expect Justice Breyer to be a fifth vote for a “courtesy stay.”
So here’s my prediction: stay denied by the Supreme Court, either without comment, or with a dissent from Justices Alito and Thomas.