North Carolina’s voter-suppression law was apparently too racist for the Supreme Court.

North Carolina’s Voter-Suppression Law Was Killed by Its Own Racism

North Carolina’s Voter-Suppression Law Was Killed by Its Own Racism

The law, lawyers, and the court.
May 15 2017 6:45 PM

North Carolina’s “Monster” Voter-Suppression Law Is Dead

It may have been too overtly racist for the Supreme Court. But don’t think the battle is over.

Princeton, North Carolina voting
A worker holds stickers for voters at a polling station at the Princeton Baptist Church in Princeton, North Carolina, on Election Day, Nov. 8, 2016.

Chris Keane/Reuters

On Monday morning, the country’s most discriminatory voter-suppression law died with a whimper. With no noted dissents, the Supreme Court refused to review a lower court decision striking down North Carolina’s HB 589, the “monster law” that would have disenfranchised thousands of citizens. The justices’ inaction ensures that HB 589 will stay dead—and that the most emphatic ruling against the Republican assault on minority suffrage will remain on the books.

Mark Joseph Stern Mark Joseph Stern

Mark Joseph Stern is a writer for Slate. He covers the law and LGBTQ issues.

But Monday’s surprise victory doesn’t mean the legal battle over voting rights is finished. Far from it: The court’s decision looks like a tactical punt, with the court’s liberals and conservatives joining forces to push away the case for entirely different reasons. While the conservative justices likely disapprove of the lower court’s ruling, HB 589 may simply be too racist to defend. And for the liberal justices, preserving the lower court decision is a triumph that warrants forgoing the opportunity to take direct aim at a bigoted law. Yet even if no justice was willing to go on the record in support of this particular monstrosity, the court’s conservative majority may still believe that laws like HB 589 are constitutional.

Advertisement

Ironically, HB 589 itself was directly enabled by the Supreme Court—specifically, the court’s 2013 decision in Shelby County v. Holder. Before Shelby County, many jurisdictions with a history of racial voter suppression, including North Carolina, were required by the Voting Rights Act to obtain federal approval of any new voting law. (This process is called preclearance.) But in Shelby County, the court’s conservatives struck down Congress’ preclearance formula under an extremely dubious rationale, asserting that it was outdated. Because Congress was too divided to rewrite the formula, the ruling freed states like North Carolina from preclearance.

The day after Shelby County came down, the North Carolina General Assembly—which is dominated by Republicans due to a gerrymander that has also been found to be unconstitutionally racist—began working on a voter-suppression measure. GOP legislators requested data on the use, by race, of several voting practices. With the racial data in hand, Republicans wrote and passed HB 589. Their bill created stringent requirements for voter ID, excluding IDs most commonly used by black voters; slashed early voting; eliminated same-day registration; killed preregistration for teenagers; and ended out-of-precinct voting for voters who inadvertently showed up at the incorrect precinct in the right county. Republican Gov. Pat McCrory signed the bill without fully reading it.

Voting rights activists promptly challenged HB 589 in court, and in July, a three-judge panel for the 4th U.S. Circuit Court of Appeals blocked it. The court found that the measure had a disproportionate impact on minorities and was enacted with the discriminatory intent to disenfranchise them, a violation of both the Voting Rights Act and the 14th Amendment’s Equal Protection Clause. In one widely quoted passage, the court wrote that the legislature had “target[ed] African Americans with almost surgical precision.” Although the legislature insisted that its bill was designed to stop voter fraud, the court noted that voter fraud doesn’t actually exist in North Carolina. This “asserted justification,” the court concluded, could not “conceal the state’s true motivation”: minority disenfranchisement.

North Carolina, McCrory, the GOP–controlled State Board of Election, and individual members of the board appealed the 4th Circuit’s decision to the Supreme Court. But in November, voters replaced McCrory with Democrat Roy Cooper and elected a new Democratic attorney general, Josh Stein. Both men opposed HB 589, and Stein quickly moved to dismiss the appeal. Republicans in the General Assembly then attempted to intervene to defend the law. But Stein, along with the private plaintiffs, argued that the General Assembly had no authority to intervene.

Advertisement

In a statement accompanying the court’s rejection of the case on Monday, Chief Justice John Roberts suggested that the justices had shoved it off because of this procedural muddle. He added that “it is important to recall our frequent admonition” that the court “imports no expression of opinion” by declining to hear a case. Perhaps Roberts was sincere, and every justice was so put off by the “blizzard of filings” that they gave up on the case. But that theory is difficult to square with the court’s actions last August, when Roberts, along with Justices Anthony Kennedy, Clarence Thomas, and Samuel Alito, voted to reinstate most of HB 589. (Because the court lacked a ninth member at the time, the August stalemate kept the 4th Circuit’s injunction in place.) If these justices were so eager to preserve the law then, why did they give up on it so quickly—especially when Justice Neil Gorsuch stood poised to join them in upholding it?

I suspect the answer is simple: The conservative justices got spooked. If they wanted to work around the intervention issue, they could have: There is a strong argument that the General Assembly could, indeed, defend the law. But in the months between August’s vote and Monday’s punt, the justices have been thoroughly briefed on HB 589. Several unflinchingly honest briefs have laid bare the overt racism behind the legislation, in addition to the lies, chicanery, and deception used by Republicans in its defense. In order to affirm HB 589’s legality, a justice would essentially have to declare that racial animus does not render a voting restriction unlawful.

Alito, Thomas, Roberts, and Gorsuch may well agree with that position. But do Roberts and Gorsuch, in particular, want to go on record defending it? And, more important, does Kennedy? The justice has complicated views on voting rights, and his fellow conservatives may not have been confident enough to roll the dice and bet on his support. On the other side, the liberals were undoubtedly content to let the 4th Circuit’s ruling stand. For both blocs, the risks of taking the case might have been too great.

Whatever the reason behind Monday’s decision, it does not mark the end of the Supreme Court’s voting wars. The district court may now place North Carolina back under preclearance, which could, in turn, lead to a new round of litigation. The General Assembly could also enact a modified version of HB 589 and override Cooper’s inevitable veto, spurring a new lawsuit. Moreover, several other voting-rights cases are bubbling up, including a challenge to a Texas law that got thoroughly pummeled in the lower courts. One day soon, the court’s conservatives will be presented with a voter-suppression law that they feel they can uphold without looking like malicious enablers of egregious racism. For now, however, civil rights advocates can rejoice that HB 589 has received the death blow that it so richly deserves.

One more thing

The Trump administration poses a unique threat to the rule of law. That’s why Slate has stepped up our legal coverage—watchdogging Jeff Sessions’ Justice Department, the Supreme Court, the crackdown on voting rights, and more.

Our work is reaching more readers than ever—but online advertising revenues don’t fully cover our costs, and we don’t have print subscribers to help keep us afloat. So we need your help.

If you think Slate’s journalism matters, become a Slate Plus member. You’ll get exclusive members-only content and a suite of great benefits—and you’ll help secure Slate’s future.

Join Slate Plus