UPDATED Tuesday 6:11 p.m. The Chief Justice has called for responses to this application. The Justice Department and civil rights groups are to file by 4 p.m. next Thursday, August 25.
North Carolina officials, arguing that the Supreme Court intended for states that were freed from federal supervision to pass new voting rules, asked the Court on Monday to allow it to put back into effect its photo ID law for voters, and two other provisions also challenged by black voters and the federal government.
The application (16A168) argued that a federal appeals court that struck down those measures was attempting to revive the kind of federal oversight that the Supreme Court ended three years ago in the decision in Shelby County v. Holder. That decision, the filing contended, was designed to restore the sovereign powers of states long under federal government oversight because of past racial bias in elections.
The state’s filing insisted that there was no racial motive for the new voting provisions, and that they had been used previously without any negative impact on minority voters.
The filing went to Chief Justice John G. Roberts, Jr., who handles emergency legal matters from the geographic area that is the Fourth Circuit, which includes North Carolina. Roberts can act on his own or share the request with the other Justices. The Court is in summer recess now, but able to act on such questions.
The U.S. Court of Appeals for that circuit on July 29 struck down the photo Id provision and several other measures, calling the law “the most restrictive” law on voting “since the era of Jim Crow.”
The ruling nullified the provisions that eliminated the few kinds of IDs that black voters might have, two provisions that reduced or took away voting options used heavily by blacks — early voting before election day, including Sundays, and a right to register to vote on the same day of voting; a ban on counting votes that had been cast by mistaken in the wrong precinct, affecting black voters the most, and a ban on pre-registering to vote before youths reached the voting age of 18.
In taking the dispute to the Supreme Court, the state insisted that it was trying to minimize the impact on this year’s elections of its request, so it did not ask that it be allowed to restore this year all of the measures invalidated by the Fourth Circuit Court.
The application asked permission to have the photo ID law, to limit early voting to 10 days instead of the 17 days under the appeals court ruling, and to bar early registration for 16-year-olds. Keeping those intact for this year’s election, the state argued, will avoid voter confusion. It contended that those measures will not have “any detrimental effect” on voters, “minority or otherwise.”
The Circuit Court had ruled that the state legislature rushed to pass the law, specifically aiming at provisions that had made it easier for blacks to vote, right after the Supreme Court in the Shelby County decision lifted the “pre-clearance” reuirement long imposed on Noeth Carolina and other states with a history of racial discrimination at the polls.
Section5 of the Voting Rights Act required states with that kind of history to get clearance in Washington, D.C., before they could put into effect any new election law or procedure, to make sure that the provisions did not interfere with minority voting rights.
The Court did not strike down Section 5, but made it virtually a dead letter by striking down the formula that Congress had used to determine which states had to pre-clear their voting laws or methods.
Even without Section 5, states can be put back under a pre-clearance requirement if they are found to have passed laws with the specific intent of discriminating on the basis of race. The Fourth Circuit Court found such specific intent in the North Carolina legislature’s passage of the voting law. But it explicitly refused to invoke the pre-clearance option, saying it was sufficient to simply block enforcement of the invalid provisions.
Even though the states does not face pre-clearance under the Fourth Circuit Court’s ruling, the state’s application dwelled on that regime, and suggested that the appeals court had engaged in “micromanagement” of the state’s voting law that bore a “striking resemblance” to the pre-clearance regime.
The state also protested that the Supreme Court had made clear eight years ago, in an Indiana case, that photo ID laws for voters were a valid way to prevent voter fraud and build public confidence in the integrity of elections.
The state’s application was filed by prominent Washington lawyer, Paul D. Clement. The state’s own attorney general had declined to defend the voting law.
The Chief Justice is expected to ask for a response from the Justice Department and from others challenging the law, before deciding whether to put the Fourth Circuit Court ruling on hold for this year’s election. The state plans to pursue a full-scale appeal later.