With the Supreme Court’s four more liberal Justices staying together in favor of freer access to voting for black citizens, the Court on Wednesday afternoon left intact a federal appeals court ruling that nullified five new restrictions in North Carolina. The issue, in essence, split the Court 4-to-4; the order can be found here.
It would have taken the votes of five of the eight Justices to postpone the ruling by the U.S. Court of Appeals for the Fourth Circuit against a strict new photo ID requirement, plus four other limits on voting practices that are used most often by black voters.
The Court did not explain its order, other than to note the state’s request had been denied and that Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito, Jr., and Anthony M. Kennedy would have allowed enforcement of all but one of the five provisions, and Justice Clarence Thomas would have allowed all five to be used in voting in the general election in November.
The order did not disclose the fact of the votes of the other four Justices, but the denial of the state’s request for a stay meant that those four had voted to deny the state’s request in all respects. Those four are Justices Stephen G. Breyer, Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor.
North Carolina still has a legal right to file a full appeal to challenge the Fourth Circuit Court’s ruling, and it would take the votes of only four Justices to grant review. However, the four who might favor that review might hesitate to do so because there would appear to be no realistic chance that they could pick up a fifth vote to make up a majority for a final decision.
There is no prospect that a ninth Justice will join the Court, replacing the late Justice Antonin Scalia, until late this year at the earliest. If the Senate takes no action on the nomination of Judge Merrick B. Garland to succeed Scalia before the end of this year, it could be next March or April before a new Justice could be on the bench.
North Carolina’s three-year-old law, besides taking away photo IDs of the kinds that tend to be available to black voters, also made these changes: It limited early voting, before election day, to 10 days instead of 17; it ended the right to register to vote on the same day that a vote was cast; it barred the counting of votes that had been cast in the wrong precinct; and it would have banned pre-registering to vote for youths before they actually reached age 18.
In its plea to postpone the Fourth Circuit Court’s decision, state officials had asked for permission to enforce only the photo ID law, the limit on early voting to 10 days, and the bar to early registration for youths who are 16 years old. The pre-registration change was the only one of the five provisions that three Justices would have kept on hold.
The Justices who voted to permit any of the provisions to be used in November did not explain their reasoning for doing so, and neither did the four Justices who voted to leave the Fourth Circuit Court ruling undisturbed.
It would have been very difficult for any of the Court’s four more liberal members to have voted in favor of the state law’s restrictions since the Fourth Circuit Court ruled that the state legislature had adopted those measures with the specific intent to curb voting rights for black citizens. The Circuit Court had noted that state legislators moved swiftly to pass the new measure after the Supreme Court, in the 2013 decision in Shelby County v. Holder. That decision had brought virtually to an end the requirement that states with a history of racial discrimination in voting had to get advance clearance in Washington for any changes in their election laws or procedures.
The North Carolina controversy has been closely watched as the federal courts began dealing with a wave of new voting restrictions imposed in many states — including many that favored new photo ID requirements.
Legendary journalist Lyle Denniston is Constitution Daily’s Supreme Court correspondent. Denniston has written for us as a contributor since June 2011. Denniston has covered the Supreme Court since 1958. His work also appears on lyldenlawnews.com, where this post first appeared.