When thorny constitutional issues are being hashed out in the courts, it’s a fact of life that the show isn’t necessarily over until SCOTUS sings, or declines to sing. The acronym refers of course to the Supreme Court of the United States, which on Oct. 8 had the last word as to the rules for North Carolina’s upcoming election.
The high court, in its wisdom, allowed a state law enacted in 2013 to continue in full force and effect. That was despite a strong challenge mounted by civil rights and good government groups, who protested that the law improperly treads on the rights of certain voters, especially racial minorities.
Those claims of racial discrimination had gotten the attention of judges on the 4th US Circuit Court of Appeals, the Richmond-based court that oversees appeals arising from North Carolina. As it turns out, they also got the attention of at least two Supreme Court justices.
A 4th Circuit panel had told the state to go ahead and let people register to vote and cast their ballots on the same day during the early voting period – even though the law does away with that option. The judges noted that early voting and same-day registration have been especially popular among African-Americans.
Black voters, who change residences more often than whites, are more likely to show up at the wrong precinct. Previously, anyone making that mistake was allowed to go ahead and cast a provisional ballot. The law eliminates that option – which also struck the appeals judges as infringing on black voters’ rights.
With same-day registration and out-of-precinct voting as their focus, the judges on Oct. 1 ordered an injunction aimed at preserving the status quo for the election on Nov. 4. Then the Supreme Court said no dice.
The upshot is that same-day registration and out-of-precinct voting won’t be allowed this fall, just as the General Assembly intended. Whether the law will remain in effect over the long haul, however, won’t be decided until after a trial scheduled for next summer.
The question then will be whether the law, in any of the multiple changes it makes to North Carolina’s election code, violates the federal Voting Rights Act and the Constitution, as those who filed suit allege. Will anybody be surprised if the verdict, whatever it is, ultimately gets its own review by SCOTUS?
When and if we get to that point, the law’s critics might be able to take some comfort in the fact that two justices already have signaled they take the complaints seriously.
Legislators seized the moment
There was no majority opinion from the Supreme Court explaining why it blocked the lower court’s injunction. Indeed, no vote was announced – simply an unsigned order.
But Justice Ruth Bader Ginsburg, in a written dissent joined by Justice Sonia Sotomayor, explained why she would have left the injunction in place. She highlighted a disturbing fact: The General Assembly approved its batch of election law changes immediately after the Supreme Court, in an earlier decision that Ginsburg disagreed with, weakened the Voting Rights Act.
If that decision in an Alabama case had gone the other way and the Voting Rights Act had been upheld across the board, North Carolina’s changes would have needed a green light from the US Department of Justice. That approval likely wouldn’t have been granted, Ginsburg observed.
She didn’t put it this way, but could have: North Carolina legislators acted to suppress the rights of minority voters as soon as they figured they could get away with it.
“The Court of Appeals determined that at least two of the measures [in the contested North Carolina law] – elimination of same-day registration and termination of out-of-precinct voting – risked significantly reducing opportunities for black voters to exercise the franchise in violation of Section 2 of the Voting Rights Act,” Ginsburg wrote. “I would not displace that record-based reasoned judgment.”
She rejected the state’s argument that since black voter turnout had increased in the 2014 primary election, with new rules in place, over the 2010 primary, the rules thus posed no discriminatory hardship. The rules’ likely effect on turnout in a general election scarcely can be judged on the basis of turnout in a primary, she said. And anyway, the primary last spring was a livelier affair than the one four years ago.
The debate over whether to let election law changes go forward this fall hinged on whether or not they’d do real damage to the interests of certain voters. Not to worry, the Supreme Court assured us.
Once the lawsuits filed by the state NAACP, League of Women Voters and others come to trial, however, the issue will be joined on the merits: Do the changes, including a voter ID rule taking effect in 2016 and a shortened early voting period in effect this year, violate the Voting Rights Act and the Constitution, or do they not?
When legislators did what they did only after they were spared from having to get the Justice Department’s OK, that magnifies concerns about their motives and rationales. Now it will be the courts’ job to make sure all citizens’ voting rights are properly honored.
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