Here’s some free advice to young lawyers just starting our their careers: if your client loses a case, and you want the Supreme Court to review it, you might want to actually bring the case to the justices’ attention.
The state of North Carolina appears not to have learned this lesson.
To explain, late last month, the United States Court of Appeals for the Fourth Circuit struck down much of the state’s omnibus voter suppression law. Though Attorney General Roy Cooper (D-NC) soon announced that his office would no longer defend the law in court, Gov. Pat McCrory (R) pledged to ask the justices to stay this decision and effectively reinstate the law. That hasn’t happened yet:
— Rick Hasen (@rickhasen) August 15, 2016
So we’re now 17 days out from the appeals court’s decision striking down much of the voter suppression law, and the state still hasn’t sought a stay from the Supreme Court. That, alone, is an ill-advised practice for lawyers in this and similar cases. The entire point of a stay is that a party believes that a lower court’s order is so untenable that it cannot remain in effect until after it has been reviewed by a higher authority. It’s tough to make that claim when you can’t even be bothered to file your stay request in a timely manner.
This principle is especially true in a voting rights case. At least before conservatives lost their majority on the Supreme Court, the justices were reluctant to disturb a state’s election law as an election drew nigh. Many of the Roberts Court’s decisions showed this reluctance in cases where the state realistically could have dealt with a court decision striking down part of its election law, but the general principle that courts should show some caution regarding last minute election law decisions has some merit. Long before the first vote is cast this November, ballots will need to be printed, voters will need to find their precinct, and election officials will need to learn which set of rules to apply in this election. A last minute court decision can lead to confused voters and uneven application of the law.
Indeed, as Rick Hasen notes, “the whole reason the 4th Circuit issued its opinion in July is because it had assurances from the state that this would be enough time to make changes.” Each day that the state waits to file its stay request potentially adds additional uncertainty about how this election should be run.
But, of course, the Supreme Court is aware of this fact, which is why the justices are likely to grow more and more reticent to grant a stay in this case with each day that North Carolina waits to file.
The state’s delay, moreover, is only the latest blunder by a state that, at times, has seemed to be trying to lose a court challenge to its voter suppression law. The law combines several common voter suppression tactics, including a strict voter ID law, cuts to early voting, restrictions on voter registration, and a provision eliminating out-of-precinct voting. As the Fourth Circuit determined, state lawmakers designed many of the details of this law by studying data on racial voting patterns and using this data to inform amendments that would increase the law’s impact on African-Americans.
It’s as if these lawmakers were trying to get caught.
Lawmakers, for example, “amended the bill to exclude many of the alternative photo IDs used by African Americans” while retaining “only the kinds of IDs that white North Carolinians were more likely to possess.” Similarly, “the General Assembly amended the bill to eliminate the first week of early voting” after data showed that “African Americans disproportionately used the first seven days of early voting.”
It’s as if these lawmakers were trying to get caught. After more than a decade subject to a conservative Roberts Court majority, voting rights are weaker today than they’ve been at any point since Jim Crow. But even some of the Court’s conservative members are likely to draw the line at a law that intentionally targets black voters. Slipping a voter suppression law past a judge like Chief Justice John Roberts is not hard, but North Carolina even managed to defy Roberts’ simplistic adage that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
It should be noted that the four conservative justices have shown a great deal of skepticism towards voting rights cases in the past. And a recent vote cast by left-of-center Justice Stephen Breyer at least raises a small doubt about whether he is as reliable a liberal vote as voting rights advocates hope he will be in this case. The smart money is on North Carolina losing this case, but nothing is a sure thing until it is over.
Nevertheless, the state appears to be doing everything in its power to eliminate whatever small chance it once had of prevailing.