In a stunning decision that other states may want to be monitoring closely, the Supreme Court on Wednesday, on a 4-4 split, left standing a lower appeals court decision that gutted North Carolina’s voter ID provisions.
The plan by the state to protect the integrity of its elections had been affirmed in a nearly 500-page decision by a district court judge, but this summer a panel from the 4th U.S. Circuit Court of Appeals claimed it targeted minority voters.
The single-page order from the Supreme Court provided no explanation at all for the decision, but it revealed Chief Justice John Roberts and Justices Anthony Kennedy, Samuel Alito and Clarence Thomas would have given the state at least temporary relief until the full arguments were heard.
Ruth Ginsberg, Elena Kagan, Sonia Sotomayor and Stephen Breyer, the well-established liberal coalition on the bench, turned their backs on the state.
It means the state’s planned cutbacks on early voting, limits on the preregistration of those who are 16 and more, won’t be on the books for the 2016 election.
An analysis at Scotusblog explained North Carolina lawmakers adopted the law after the 2013 Shelby County decision which banished a federal plan to determine “which state and local governments must obtain advance approval for any changes to their voting rules.
They proposed having voters show one of a multitude of government-issued photo IDs, reduce the number of days for early voting and “eliminate out-of-precinct voting, same-day voter registration” and the preregistration.
Then the lower appeals court panel claimed the law “hinges explicitly on race – specifically its concern that African Americans, who had overwhelmingly voted for Democrats, had too much access to” voting, the analysis said.
The state had wanted the high court to allow enforcement of several of the key provisions for 2016, but the decision rejected that request.
The lead lawyer for the state, Paul Clement, had explained in court filings the appeals court had tossed a law that was more “sensitive” than similar laws in other states.
The Obama administration, which has run a number of programs that have had the impact of creating additional Democrat voters, such as releasing felons from prisons, suggested strongly that the court should not agree with the state’s request.
“Once an electoral law has been found to be racially discriminatory, and injunctive relief has been found to be necessary to remedy that discrimination, the normal rule is that the operation of the law must be suspended,” wrote acting Ian Gershengorn, of the solicitor general’s office.
In July, the 4th Circuit said, “The [district] court seems to have missed the forest in carefully surveying the many trees. This failure of perspective led the court to ignore critical facts bearing on legislative intent, including the inextricable link between race and politics in North Carolina.”
About the same time, a Rasmussen Reports poll showed 76 percent of Americans support photo voter ID laws.
A separate court decision also recently said that Texas’ voter ID law violates the Voting Rights Act.
And two years ago, a statement from Obama seemed to support the perspective that his administration’s attacks on voter ID laws were a “con job.”
That was when the DOJ was arguing against Texas’ law, in alignment with the governments almost exclusive attacks on GOP-majority southern states.
The New York Times reported testimony in the Texas case could come from Imani Clark, 22, a college student who used to vote in Waller County using her student ID but has not voted since the law took effect. She claims she doesn’t have an approved form of ID and no access to a car or public transportation to travel to a state office to apply.
But a new confession from Obama himself, reported by The Hill, could be a game-changer.
“Most of these laws are not preventing the overwhelming majority of folks who don’t vote from voting,” Obama said in a radio interview with civil rights activist Rev. Al Sharpton. “Most people do have an ID. Most people do have a driver’s license. Most people can get to the polls. It may not be as convenient. It may be a little more difficult.”
In short, Obama affirmed, minorities aren’t hindered from voting because of voter-ID laws.
“The bottom line is, if less than half of our folks vote, these laws aren’t preventing the other half from not voting. The reason we don’t vote is because people have been fed this notion that somehow it’s not going to make a difference. And it makes a huge difference,” Obama was quoted saying.
“If we have a high turnout in North Carolina, then we will win. If we have a high turnout in Georgia, we will win. If we have a high turnout in Colorado, we will win. So, across the board, it is important for us to take responsibility and not give away our power,” Obama said.
DOJ attacks on state laws have come in Texas, Wisconsin, Ohio, North Carolina, South Carolina, and Florida.
The description of Obama’s DOJ campaign regarding voting rights as a “con job” comes from Hans S. von Spakovksy and J. Christian Adams in a commentary published by the Heritage Foundation.
Their argument came up when online gatekeeper Politifact released a list purporting to be more than 100 voting cases pursued by the DOJ.
Obama had made a reference to the cases in a speech to Sharpton’s National Action Network earlier this year.
He said his administration had “taken on more than 100 voting-rights cases since 2009, and they’ve defended the rights of everybody from African Americans to Spanish speakers to soldiers serving overseas.”
Reality, the two wrote at Heritage, is “far less impressive.” That’s because among the cases listed are dozens that were brought against the Justice Department alleging that it was not doing what it should to protect someone’s voting rights.
“It even includes cases where the DOJ wasn’t even a party but had filed a single amicus curiae (‘friend of the court’) brief,” they reported. “In other words, in these cases the DOJ did not, in its view, have a strong enough interest in protecting minority voting rights to do what it usually does in such cases – file a motion to intervene and become an actual party.”
They said the list actually includes 28 cases “approving a ‘bailout’ from the Voting Rights Act – that is, cases in which the Justice Department agreed to extinguish the special protections that the Voting Rights Act affords to minorities.”
“It also seems frankly a little much to claim credit for cases in which courts dismissed DOJ claims as not being credible, such as State of South Carolina v. United States. … In that case, a three-judge federal panel threw out DOJ’s claims that South Carolina’s voter-ID law was discriminatory.”
Actually, they pointed out, the DOJ fought a move by residents of a 65 percent black town in North Carolina to change municipal elections from partisan to nonpartisan. The DOJ argued, until its attorneys could no longer support the claim, that “it was discriminatory because black voters would not know whom to vote for if there was no party label next to a candidate’s name.”
“In giving this trumped-up case list to Politifact, the Obama administration made one thing quite clear: It is trying to mislead the public. For all of its talk, it has filed far fewer lawsuits to enforce the Voting Rights Act than the Bush administration did,” the commentary said.
The National Conference of State Legislatures documents that 34 states have laws requesting or requiring voters to show identification at polls. Thirty-three are in force for 2016.
“The remaining 17 states use other methods to verify the identity of voters. Most frequently, other identifying information provided at the polling place, such a a signature, is checked against information of file.”
The Supreme Court decision, however, raises questions about whether those requirements will be allowed to stand, and for how long.
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