The future of voting rights in the medium to long term is not rosy. President Donald Trump is making false claims that millions of voters fraudulently cast ballots in the 2016 election, perhaps as a predicate to a round of federal laws making it harder to register and vote. His administration seems poised to do a 180 in a case challenging Texas’ strict voter identification law, abandoning the Obama administration’s position that the law was discriminatory. Judge Neil Gorsuch, if confirmed, is likely to restore the Supreme Court to a Scalia-era status quo, a 5–4 court skeptical of broad protection for voting rights.
But in the short term, there’s one simple action that could make voting rights a bit more secure: Roy Cooper, the new Democratic governor of North Carolina, and the state’s new Attorney General Josh Stein should withdraw a petition for writ of certiorari pending at the Supreme Court to review the 4th Circuit’s decision striking down North Carolina’s strict voting law.
Back in 2013, right after the Supreme Court in Shelby County v. Holder withdrew federal supervision of voting rules in North Carolina and a bunch of other jurisdictions with a history of racial discrimination in voting, the state passed one of the largest rollbacks of voting rights since the passage of the Voting Rights Act. The law imposed a strict voter identification requirement, cut back on early voting, eliminated same-day voter registration, declared votes cast in the wrong precinct (even if the result of poll-worker error) could not be counted, and eliminated preregistration of 16- and 17-year-olds.
Voting rights plaintiffs were joined by the United States government under the Obama administration in suing the state of North Carolina, arguing that the voting law violated both the Constitution and the Voting Rights Act. After two trials, a federal district court disagreed, issuing a lengthy decision. The 4th Circuit reversed, ruling that the challenged provisions of the voting law were unenforceable because they were passed with racially discriminatory intent.
The ruling advanced a very interesting and potentially valuable legal theory about intentional discrimination. The 4th Circuit wrote that the law targeted black voters “with almost surgical precision,” but there was no evidence that North Carolina legislatures acted with racial hatred or animus. Instead, the state used “race as a proxy for party,” knowing that passing laws that hurt blacks would help the Republican Party. These days, race and party overlap in the American South and elsewhere, and the court held this meant that discrimination on the basis of one category can constitute discrimination on the basis of the other.
The theory is intriguing, even if, as I believe, courts may be better suited to allow plaintiffs to directly target laws aimed at party discrimination rather than race discrimination. It deserves further development in the lower courts. But if the Supreme Court with a new Justice Gorsuch takes the case, there is good reason to believe the court would wipe that theory out in reversing the decision. Last year, North Carolina and its then-Republican Gov. Pat McCrory sought emergency relief before the election, and at that point the Supreme Court divided 4–4, with all the conservatives voting to grant relief. That’s a good indication that, with a Gorsuch fifth vote on their side, they would likely reverse.
But there may be a way out. North Carolina officials, when McCrory was still in charge, got extensions and waited until just a few days before McCrory left office to file the cert petition asking the Supreme Court to review the 4th Circuit’s decision. State officials probably wanted to run out the clock so that the Obama Department of Justice would not have time to craft an opposition. But a day before Obama left office, the DOJ filed the opposition early. The NAACP and the other plaintiffs just now filed their own opposition to the Supreme Court’s review.
For all we know, the Trump administration will soon come in and withdraw the U.S.’s brief in opposition. But North Carolina’s new Democratic governor and attorney general likely have an option too. Under North Carolina law, the governor and attorney general get to control the state’s litigation, even when an agency is involved. Here, the agency involved is the North Carolina Board of Elections, which for now remains headed by a Republican. But state law does not let that board choose outside counsel to represent its interests without approval of the governor or the attorney general. So it looks like nothing would stop Gov. Cooper and AG Stein from simply withdrawing the cert petition, leaving the North Carolina case on the books and denying the Supreme Court a chance to grant review. Even if something prevents withdrawal of the petition, Cooper and Stein could file a letter disagreeing with the earlier position of the state in the cert petition.
This matters because already other courts are beginning to rely on the 4th Circuit’s opinion. In a recent case, a federal district court, citing the 4th Circuit opinion, held that the city of Pasadena, Texas, engaged in intentional racial discrimination against Latino voters in changing voting rules for city council elections to deprive Latinos of a legislative majority. In that case, Pasadena’s Director of Community Relations Richard Scott, preparing a mailing list intended to tout the new voting system, “wrote a campaign vendor and recommended using Mayor Isbell’s campaign list from a previous campaign but asked the vendor first to ‘pull out Hispanic names’ from the list,” according to the facts found by the trial court. Scott testified that by “pull out Hispanic names” he was referring to Democratic voters. “When asked by the court why he said ‘Hispanics’ if he meant ‘Democrats,’ Mr. Scott testified that he did not know, but then testified that he thought of ‘Hispanic’ as a proxy for Democratic voters and ‘Anglos’ as a proxy for Republican voters.”
The Pasadena case shows that letting more cases proceed on this theory of race and party as proxies for one another would be good for minority plaintiffs and voting rights. Democratic officials in North Carolina should do what they can to ensure that the Supreme Court does not get its hands on this case and wipe it off the books, potentially replacing it with a decision that will hurt the cause of voting rights more.