North Carolina is asking the court to stay that is, to put on hold a decision by the Fourth U.S. Circuit Court of Appeals to block five interconnected changes in voting procedures enacted in 2013 by the state’s Republican-majority legislature and GOP governor. In a mostly unanimous decision, the three-judge appeals court panel found that the state had intentionally adopted changes to restrict voting procedures that black voters used more than white voters did.
The appeals court issued its decision on July 29 and six days later rejected the state’s request to stay the decision and allow the challenged law to remain in effect through the November election. Now, the state is telling the justices that the appeals court decision is wrong: “unprecedented” in finding intentional discrimination solely on the basis of disparate impact.
The state argued that the court will probably agree to hear the state’s appeal and that the law should remain in effect. “Forcing the state to change the status quo mere months before the presidential election will cause irreparable injury to the state and its residents,” the state’s lawyers wrote in the application for a stay filed last week [Aug. 22].
To that argument, the appeals court said, in short, pish-posh, based on the state’s own statements at the earlier oral argument. In its order denying a stay, the appeals court noted that the state’s lawyers “assured us that it would be able to comply with any order we issued by late July.”
The state told the judges that early voting could be held at the state election office in each county and that election officials could be instructed not to require the photo ID specified in the challenged law. The state also acknowledged that its computer system was equipped to handle same-day registration and out-of-precinct voting. “Because of these assurances,” the court wrote, “we are confident that North Carolina can conduct the 2016 election in compliance with our injunction.”
The appeals court also had a different view about the potential injury from blocking the challenged law or allowing it to go into effect. “[T]he balance of equities heavily weighs against recalling the mandate or granting a stay,” the court wrote. “Voters disenfranchised by a law enacted with discriminatory intent suffer irreparable harm far greater than any potential harm to the State.” And the court viewed the relevant status quo differently than the state did. “Finally, we observe that our injunction merely returns North Carolina’s voting procedures to the status quo prevailing before the discriminatory law was enacted,” the court wrote.
The plaintiffs can be expected to hammer these points in their response to the state’s application, due on Thursday [Aug. 25]. For Supreme Court handicappers, the easy prediction is a 4-4 split along conservative-liberal lines. A tie in this case would go to the plaintiffs: North Carolina needs five votes to get a stay. The one wild card could be the liberal justice Stephen G. Breyer, who somewhat surprisingly gave the conservatives a “courtesy” fifth vote earlier this month in staying the Fourth Circuit’s decision favoring a transgender Virginia high school student’s effort to use the bathroom corresponding to his gender identity.
Breyer explained his decision in that case by noting that the four conservative justices had the votes necessary to grant review of the decision on the merits and that a stay would merely preserve the status quo until the court could decide the case. But election expert Rick Hasen, a law professor at the University of California-Irvine, doubts that Breyer would view an election law case the same way. “There’s no way to redo the election,” Hasen wrote on his invaluable Eletction Law Blog. “With irreparable injury like this, there’s no way Justice Breyer goes along.”
For Roberts, the case tests his prevailing view in the decision in Shelby County v. Holder to eliminate the Voting Rights Act’s preclearance decision on the ground that things have changed in the South since the law was enacted in 1965. The recent spate of voter ID laws and other vote suppression laws provides an ironic confirmation of sorts: disenfranchising minority voters is now practiced not just in the South but in other states, such as the once-progressive Wisconsin. Still, Texas and North Carolina carried vote suppression further than any of the states to the north.
Meanwhile, a top Republican official in North Carolina is advising fellow Republicans on local election boards to resist any changes pushed by Democrats. Dallas Woodhouse, the state GOP’s executive director, urged fellow Republicans to support “rules that are fair to our side” (emphasis added). With North Carolina possibly a critical state in the presidential election, the Supreme Court owes the state, and the nation, a decision that is fair not to one side, but to both.