North Carolina has called in the big guns to try to restore a comprehensive voter suppression law that was gutted by a federal appeals court.
Paul Clement is one of the best lawyers in the nation. A former Solicitor General of the United States, Clement has spent much of the Obama administration transforming himself into a kind of Solicitor General of the Republican Party. Clement has argued cases seeking to repeal the Affordable Care Act, preserve anti-gay marriage discrimination, defend harsh policies targeting immigrants, and preserve other voter suppression laws. His presence on a case is often a clear sign that the nation’s conservative establishment views it as a very high priority.
The king’s ransom Clement is likely to collect from North Carolina’s taxpayers for his work on North Carolina v. North Carolina State Conference of the NAACP bought a legal document that probably offers the best defense that could be offered in favor of a law which, as the appeals court explains, was intentionally designed to make it harder for black people to vote. Nevertheless, Clement’s brief, styled as an “EMERGENCY APPLICATION TO RECALL AND STAY MANDATE OF THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT PENDING DISPOSITION OF A PETITION FOR WRIT OF CERTIORARI,” reads like a document weirdly out of time. It is the sort of brief a Supreme Court advocate would file if Justice Antonin Scalia were still alive to provide the fifth vote to reinstate a voter suppression law. And it offers many arguments that are likely to antagonize the justices Clement needs to win over if he is to prevail.
Demanding Mercy Because You Are An Orphan
Clement’s strongest argument comes at the very end of his brief. Court decisions which alter a state’s election law close to the date of the election, “put state and local election officials in an exceedingly difficult position.” As the Supreme Court itself has said, such decisions “can themselves result in voter confusion and consequent incentive to remain away from the polls.”
This is not a frivolous argument, and the Roberts Court has historically been open to pleas to maintain the status quo in the lead up to an election, at least when conservatives enjoyed a majority on the Court.
But there are a number of reasons why this argument is unlikely to convince a majority of the justices. For one thing, the reason why the Fourth Circuit issued their opinion in July is because North Carolina told them that it could handle a decision that close to the election. As the appeals court explained,
At oral argument, the State assured us that it would be able to comply with any order we issued by late July. As to early voting locations and staffing, we were told that at a minimum the State could conduct early voting at the Board of Elections office for each county. As to the photo ID requirement, the State informed us that it would comply with an injunction of that law by instructing its poll workers not to require photo ID. And, as the State acknowledges, its SEIMS system is already prepared to implement same-day registration and out-of-precinct voting. The State told us that the proofs for its voter guide were not due until August 5, and that its election official training would not begin until August 8. We issued our opinion, injunction, and mandate a week in advance of those dates. Because of these assurances, we are confident that North Carolina can conduct the 2016 election in compliance with our injunction.
Worse, after the appeals court issued its decision striking much of the state’s voter suppression law, North Carolina waited seventeen days to file its “emergency” application asking the justices for a stay. That’s a pretty good way to communicate to the justices that this “emergency” isn’t really all that urgent.
So, to summarize, the state told the appeals court that it was prepared to implement a July order striking down parts of the law. Then, after the court complied with this deadline, the state sat on its hands for two-and-a-half weeks before it finally got around to asking the Supreme Court to consider this case. And now it expects the justices to say that much of the Fourth Circuit’s order must be stayed because we are too close to Election Day.
The state has, to borrow from Leo Rosten, murdered its parents and then demanded mercy because it is an orphan.
Welcome to the Post-Scalia Reality
Clement’s chutzpah aside, the remainder of the brief leans heavily on the sort of arguments likely to convince a conservative like the late Justice Scalia, but that are just as likely to make the four liberal justices want to toss Clement’s brief out of a window. And, in a post-Scalia Court, Clement needs at least one of these four liberals in order to prevail.
The brief opens by accusing the Fourth Circuit of violating two Supreme Court decisions that are, to say the least, controversial. The appeals court allegedly treats “all voter-ID laws as inherently suspect notwithstanding Crawford v. Marion County Election Board,” and it allegedly converts “the purposeful discrimination inquiry into a mechanism for continuing to subject States to de facto preclearance notwithstanding Shelby County v. Holder.”
As a matter of legal doctrine, this argument is a non-sequitur. Crawford rejected a challenge to a state voter ID law which claimed that the law violated the fundamental right to vote. Shelby County effectively neutered Section 5 of the Voting Rights Act. The North Carolina law, by contrast, violates the Constitution’s protections against race discrimination and Section 2 of the Voting Rights Act.
Without diving too deep into the details of these specific legal claims, it is sufficient to note that Section 5 of the Voting Rights Act is actually an entirely different part of the law than Section 2, and that the race discrimination claims in North Carolina are distinct from the fundamental rights claim in Crawford. Neither Crawford nor Shelby County has much at all to say about the proper outcome in North Carolina.
Just as importantly, Crawford and Shelby County are not the sort of cases a lawyer should cite if they are trying to win over liberal justices. Crawford upheld a voter suppression law that was ostensibly enacted to fight in-person voting fraud, despite the fact that the Court’s lead opinion was only able to cite one example of such fraud occurring in the last 140 years! Shelby County gutted a key provision of the Voting Rights Act on the theory that America simply isn’t racist enough to justify such a law.
For liberals, these cases are anti-canon — the kind of decisions that illustrate how judges must never, ever behave. It’s easy to read Clement’s claim that the Fourth Circuit’s decision “not only will threaten voter-ID laws throughout the country despite this Court’s decision in Crawford, but also will gut this Court’s decision in Shelby County,” and imagine Justice Sonia Sotomayor turning to her head to the sky and crying out “Hallelujah!”
Sorry, The Roberts Court Has Not Yet Overruled The Constitution
Whatever else can be said about Crawford and Shelby County, however, it can at least be said that they remain controlling precedents until the Court gets around to overruling them. At least some parts of Clement’s brief, by contrast, make arguments that depart from any established understanding of the Constitution.
The Fourth Circuit, for example, struck down a provision of the North Carolina law which cut the number of early voting days from 17 to 10. As the appeals court explained, the state legislature decided to make this cut after it requested and received data on racial voting patterns which showed that “African Americans disproportionately used the first seven days of early voting.” The legislature, in other words, engaged in intentional race discrimination, which is a violation of the Constitution’s guarantee that no state shall “deny to any person within its jurisdiction the equal protection of the laws,” among other things.
Clement, however, makes the irrelevant observation that, after Shelby County, North Carolina is no longer prohibited from enacting voting laws that have a “retrogressive impact,” meaning that they make it harder for people of color to vote than preexisting law. He notes, moreover, that “many States do not offer 17 days of early voting (in fact, some offer none).”
All of that would be well and good, were it not for the fact that the Constitution has some very stern things to say about states that intentionally engage in race discrimination. Clement is right that, under existing law, states are not obligated to provide early voting. They also aren’t obligated to offer public schools. But if a state legislature were to identify which public schools primarily serve African-Americans and then close those schools in an intentional effort to reduce black people’s access to education, then that would be a constitutional violation.
That’s more or less what North Carolina did here, except they did it in the context of elections instead of education.
In case there’s any doubt, none of these critiques of Clement’s brief should be taken as a slight against his skill as an attorney. To the contrary, given the fact that North Carolina is required to comply with both the Constitution and the Voting Rights Act, as well as the Fourth Circuit’s determination that the state engaged in intentional race discrimination, the fact that Clement is able to offer any defense at all of this law is a testament to why his clients are willing to pay top dollar for his exceptionally advocacy.
But, at the end of the day, the justices are supposed to base their decisions on the law. Not on who is able to hire the fanciest lawyer.