A divided panel of the United States Court of Appeals for the Fourth Circuit halted two provisions of North Carolina’s comprehensive voter suppression law on Wednesday, although much of the law will still take effect. Judge James Wynn, an Obama appointee, begins his opinion with a simple declaration — “[t]he right to vote is fundamental.” He then holds that two provisions of the new voter suppression law, the provision eliminating same-day registration and the provision calling for a voter’s ballots to be tossed out if they vote in the wrong precinct, must be suspended pending a full trial of this case on the merits.
Judge Wynn’s opinion reverses the decision of a George W. Bush appointed judge who allowed the entire law to take effect.
Wynn’s decision to halt at least some of the law is not particularly surprising. At oral argument in this case, he criticized the provision tossing out ballots cast in the wrong precinct (before the new law, voters who voted in the wrong precinct would still have their ballots counted in races that were not specific to that precinct, so long as they voted in the correct county). At one point, Wynn even asked an attorney defending the law “[w]hy does the state of North Carolina not want people to vote?”
In his opinion halting this provision, Wynn explains that, under the Voting Rights Act, “even one disenfranchised voter” who is denied the right to vote on account of race “is too many.” Although the trial judge in this case did not suspend the North Carolina law, he acknowledged that “failure to count out-of-precinct provisional ballots will have a disproportionate effect on [African American] voters.” This, among other factors, justifies halting the provision disenfranchising voters who vote in the wrong precinct.
The court applied a similar analysis to the provision cutting off same-day registration. As Wynn explains, “we cannot escape the district court’s repeated findings that Plaintiffs presented undisputed evidence showing that same-day registration and out-of-precinct voting were enacted to increase voter participation, that African American voters disproportionately used those electoral mechanisms, and that House Bill 589 restricted those mechanisms and thus disproportionately impacts African American voters.” Wynn’s opinion was joined by Judge Henry Floyd, who is also an Obama appointee.
So this decision is a victory for voting rights, but it is only a partial victory. For one thing, the court only blocked part of the North Carolina law. Provisions reducing the number of early voting days, eliminating pre-registration of sixteenth and seventeen year-olds, and a slow roll out of a voter ID law that takes full effect in 2016 were all left intact, as were others.
It’s also worth noting that this was only a 2-1 decision, and the dissenter was Judge Diana Gribbon Motz, a Clinton appointee with a left-of-center record. If North Carolina was able to secure Motz’s vote, it is likely that they will be able to secure all five of the Supreme Court’s much more conservative Republican members as well. Notably, the justices already handed down a 5-4 decision this week making it harder to cast a ballot in Ohio.
The best argument on North Carolina’s side is a line of precedents suggesting that judges should be cautious about handing down decisions impacting a state’s election law as the election itself approaches. As the Supreme Court explained in Purcell v. Gonzalez, “[c]ourt orders affecting elections, especially conflicting orders, can themselves result in voter confusion and consequent incentive to remain away from the polls. As an election draws closer, that risk will increase.” This presents a plausible legal grounds for a Supreme Court decision reversing the Fourth Circuit.
Notably, however, there is also another case making it’s way up to the Supreme Court — a recent decision by a very conservative Seventh Circuit panel permitting that state’s voter ID law to take effect. If courts should refrain from handing down decisions that impact a state’s election law close to an election, then this rule should apply evenly to laws supported by Democrats and to laws supported by Republicans. It is unclear how the Supreme Court could justify reversing the Fourth Circuit if they do not also call for Wisconsin’s voter ID law to be halted as well.