Of all the states that rushed to restrict voting after the Supreme Court’s disastrous 2013 ruling to strike down key Voting Rights Act protections, North Carolina moved the most aggressively. It enacted multiple voter-suppression measures, including voter-ID requirements, restrictions on early voting, and an end to same-day registration, Sunday voting, and pre-registration for teenagers. The day the law was signed, the ACLU and the Southern Coalition for Social Justice filed suit on the grounds that the statute discriminated against minority voters in violation of the 14th and 15th Amendments.
After a bumpy ride through the lower courts, the law landed in August before the Supreme Court, which upheld a three-judge federal appeals court panel’s finding that its voter ID-provisions were unconstitutional. As Judge Diana Motz wrote in the three-judge panel’s unanimous decision, the requirements “target African Americans with almost surgical precision.”
Nevertheless, all four Republican-nominated justices on the Supreme Court held that most or all of the North Carolina law should be reinstated—a discouraging outcome that went against my own predictions. The only thing that prevented North Carolina from putting its voting restrictions into effect for the November election was the high court’s current 4-4 split due to the death this year of Justice Antonin Scalia.
Since then, the high court has let stand two additional lower court rulings involving contested election laws—one in favor of voting rights advocates, and another in favor of Republicans seeking to restrict access to the ballot. Last week, the Court let stand a lower court ruling that blocked Michigan from banning so-called straight-ticket voting, a prohibition that a federal judge had said would hurt African American voters. And this week, the Court without comment allowed to stand a Sixth Circuit decision that upheld Ohio Republicans’ plan to eliminate the “Golden Week” that allows residents to register and vote simultaneously. These conflicting moves underscore the fragile status of voting rights under a Court that is stalemated 4-4.
The North Carolina case, in particular, illustrates where the Court’s conservatives really stand—and how endangered voting rights would be were they to regain a majority. One reason the fight has been so contentious and protracted is that state officials, in their overt determination to suppress minority voters, have openly defied the rulings of the Court. And North Carolina could well play a decisive role in this election’s outcome, both in the presidential contest, and in its closely contested Senate race. Should Clinton become president, which party controls the Senate could in turn determine whether or not she can win confirmation for Scalia’s replacement. The fight over voting restrictions in North Carolina, therefore, could impact the makeup of the Supreme Court—and the future of voting rights in America, particularly in the event that one or more Democrat-appointed justices retires.
It’s well documented that voter ID and other ballot restrictions disproportionately impact low-income and minority voters. What’s been revealing and troubling about this case is that North Carolina officials have barely bothered to hide their discriminatory intent, but made it shamelessly explicit. The office of the speaker of the North Carolina House of Representatives asked the North Carolina elections board for “a breakdown, by race, of those registered voters in your database that do not have a driver’s license number.” Following yet another GOP data request, another Republican legislator lamented the lack of data for Hispanic voters. Republican lawmakers wanted voting data broken down by race for a simple—and illegal—reason: to help them craft measures that would make it more difficult for racial minorities to vote.
The failure of a single Republican-nominated Supreme Court justice to find constitutional infirmities with the North Carolina law underscores the contradictions at the heart of the Court’s 2013 Shelby County v. Holder decision to eviscerate the Voting Rights Act. With its highly restrictive package of voting laws, North Carolina made a mockery of Chief Justice’s Roberts’s assertion in that ruling that racial discrimination in voting is no longer a substantial concern, and that Congress therefore lacks the authority to pass the preclearance requirements that it had determined, after extensive hearings, were necessary and appropriate. If asking for racial data, as North Carolina legislators did, and then carefully tailoring a law to suppress the votes of racial minorities isn’t evidence of discriminatory intent, it’s not clear that anything could be. And yet the Republican half of the Supreme Court sees nothing objectionable in what state officials did.
Before the Supreme Court’s August deadlock, which allowed the Fourth Circuit ruling to stand, local officials in North Carolina took action in defiance of the Fourth Circuit’s ruling. The chair of the state GOP asked local election boards to implement some of the “reforms” in the law that had already been struck down, including restricting the early voting period and ending Sunday voting. It’s worth noting that, unlike the state’s voter-ID requirements, these changes lack even the specious pretext of ending voter impersonation, which studies have found is virtually nonexistent in any case. The curbs on early and Sunday voting have no purpose other than voter suppression, and would not only make it harder for people of color to vote, but were explicitly chosen for that purpose. State officials’ move to evade federal court rulings to enact discriminatory policies was an ugly historical throwback to the Jim Crow laws enacted after Reconstruction.
Last week the state elections board put down most—but not all—of these local rebellions by North Carolina officials. In most counties, Sunday voting and early voting periods will be restored. Nevertheless, seven counties have enacted still further restrictions on voting, including further restrictions on voting. These moves could be highly consequential in a state where margins in the presidential and Senate races could be razor-thin.
Given North Carolina officials’ ongoing—if somewhat tempered—defiance of legal rulings, the state’s Fourth Circuit federal appeals court should strongly consider invoking Section 3 of the Voting Rights Act. Section 3 allows the federal courts to “bail-in” a jurisdiction that engages in racially discriminatory vote restrictions, and subject future voting rules changes in that state to preclearance by the Department of Justice. This would properly restore the federal supervision over voting changes in states with a history of racial discrimination that the Supreme Court unwisely eliminated in 2013.
Still, the Republican Party’s strong inclination toward voter suppression makes the question of who will ultimately control the Supreme Court more crucial than ever. A Court with a majority of Democratic nominees can be expected to aggressively protect access to the ballot. Conversely, Republican-appointed justices’ failure to block egregious discrimination in North Carolina makes it clear that a conservative-majority Court would give the states virtually unlimited leeway to make voting more difficult for racial minorities.