Arguing that not only its own voter identification law but virtually all others could be endangered if a lower-court decision is permitted to stand, yesterday North Carolina asked the Supreme Court to temporarily block part of that ruling. Now represented by former U.S. Solicitor General Paul Clement, the state filed an emergency appeal seeking to apply several provisions of its 2013 election law to the November 2016 elections. It argued that the state should be allowed to use the same voting rules that it used in the March 2016 primary elections, which had what the state described as “exceptionally high” voter turnout. By contrast, it told the Justices, making “eleventh-hour alterations” to those rules would “put state and local election officials in an exceedingly difficult position” and could create “voter confusion and consequent incentive to remain away from the polls.”
The North Carolina legislature enacted the controversial law shortly after the Supreme Court issued its June 2013 decision invalidating the federal law formula used to determine which state and local governments must get advance approval (known as “preclearance”) for changes to their voting rules. The North Carolina law would require voters to show a government-issued photo ID, reduce the number of days for early voting, and eliminate same-day voter registration and out-of-precinct voting. Legislators said that the law was intended to fight voter fraud and “promote public confidence in the election system,” but the federal government and the North Carolina chapter of the NAACP (among others) went to court to challenge it, arguing that it was racially discriminatory.
In April of this year, a federal district court upheld the law. But on July 29, the U.S. Court of Appeals for the Fourth Circuit blocked it, ruling that the law violated both the Constitution’s Equal Protection Clause – which requires states to refrain from treating individuals or groups of people in similar circumstances differently – and Section 2 of the Voting Rights Act, which bars “voting practices and procedures that discriminate on the basis of race.” Characterizing the evidence as “what comes as close to a smoking gun as we are likely to see in modern times,” the court concluded that North Carolina’s “very justification for a challenged statute hinges explicitly on race—specifically its concern that African Americans, who had overwhelmingly voted for Democrats, had too much access to” voting.
North Carolina asked the court of appeals to put the enforcement of its July 29 decision on hold, but on August 4 the court declined to do so, reasoning that its ruling “merely returns North Carolina’s voting procedures to the status quo prevailing before the discriminatory law was enacted.”
In the wake of the Fourth Circuit’s ruling, North Carolina indicated that its next stop would be the Supreme Court. In yesterday’s filing, the state focused on three parts of the law that it wants to reinstate for the November elections: the voter ID requirement; a reduction in the number of days of early voting from seventeen to ten; and eliminating voter preregistration for teenagers who have not yet turned eighteen.
The state argued that the Court should step in now to halt the lower court’s ruling because it is likely to grant review on the merits and reverse that decision – two criteria for emergency action by the Court. Maintaining that the 2013 law “was the product not of racial animus, but of simple policy disagreements between two political parties about what voting measures are best for North Carolina,” the state insisted that the court of appeals had simply gotten the legal analysis wrong. The state emphasized that it had “done everything possible” to ensure that the law did not discriminate against minorities, from an “unprecedented two-year rollout that enabled an extraordinary education campaign” to making both photo IDs and “the birth certificates necessary to get them available for free.” The state warned that if, despite these kinds of efforts, a voter ID law can still be labeled “as intentionally discriminatory,” “then no voter-ID law is safe.”
The state contended that it will also suffer “irreparable harm” – another criterion for emergency action by the Court – if the Fourth Circuit’s decision is allowed to stand. It contends that state officials have “worked tirelessly for two years to implement” the voter ID requirement and have already “planned and budgeted” to hold early voting over ten days, while still offering the same number of hours for early voting as when there were seventeen days of early voting. On the other hand, the state asserted, no one will be injured if the November elections go forward on its terms. After all, it suggests, the Court has upheld more stringent voter ID laws, and in the March primary elections the voter ID requirement precluded only “0.008% of the 2.3 million votes cast” from being counted. Moreover, most states do not offer voter preregistration at all and the states that do provide early voting “offer less than North Carolina now does.”
The state’s request goes to Chief Justice John Roberts, who is responsible for emergency appeals from the geographic area that includes North Carolina. Roberts can act on the application on his own or refer it to the full Court; if the request goes to the full Court, North Carolina would need the votes of five of the eight Justices to block the lower court’s ruling. Roberts could also (possibly as early as this week) direct the challengers to respond to North Carolina’s application.