The most aggressive voter suppression law in the nation — possibly the most aggressive such law since Jim Crow — is dead.
The Supreme Court announced on Monday that it would not hear North Carolina v. North Carolina State Conference of the NAACP, a challenge to North Carolina’s omnibus voter suppression law. As the law was struck down by the lower court, that means this law is finally staked, dead, and buried.
So that’s the good news for supporters of voting rights. The bad news is that Chief Justice John Roberts wrote a brief opinion strongly implying that laws like this one could survive review before the Republican-controlled Supreme Court. Indeed, it is likely that the only reason why North Carolina’s law lies in the ground today is because the states’ voters elected a Democratic governor and a Democratic attorney general who maneuvered to kill this appeal to the Supreme Court.
The issue in North Carolina was nothing short of whether the justices would legalize many forms of racial voter discrimination.
In 2013, North Carolina enacted the law that is widely viewed as the most aggressive voter suppression law in the nation. Before voting on the final law, as a federal appeals court that struck much of it down explained, the state legislature “requested data on the use, by race, of a number of voting practices,” then used this data to shape the law in order to increase its impact on black voters and minimize its impact on white voters.
The state, for example, did not simply enact a voter ID provision — a common method of voter suppression — but also “amended the bill to exclude many of the alternative photo IDs used by African Americans,” while simultaneously retaining “only the kinds of IDs that white North Carolinians were more likely to possess.”
Similarly, after discovering that “African Americans disproportionately used the first seven days of early voting,” the state legislature amended the bill to “eliminate the first week of early voting.”
Although the Republican justices have generally not been kind to voting rights claims, they typically concede that intentional, premeditated race discrimination is not allowed. Chief Justice Roberts, in particular, is the Court’s leading evangelist for a naive, color-blind theory of the law that is less white supremacy and more #AllLivesMatter.
Nevertheless, after the appeals court struck down North Carolina’s racist law, all four of the Court’s Republicans voted to reinstate it before the 2016 election. Now that Neil Gorsuch occupies a seat on the Supreme Court, those Republicans appeared likely to have the fifth vote they need to revive this law for good.
But the North Carolina legislature’s efforts to thwart democracy ran aground during last November’s election, when the state’s voters tossed out Republican Gov. Pat McCrory and replaced him with the state’s Democratic attorney general, Roy Cooper. Cooper, meanwhile, was replaced as attorney general by Democrat Josh Stein.
In his final days as a lame duck governor, lawyers hired by McCrory filed a petition asking the Supreme Court to permanently reinstate the voter suppression law. That petition is almost a parody of the kind of racial resentment many liberal commentators attribute to Trump supporters.
In the eyes of McCrory’s lawyers, the appeals court’s decision is flawed because it commits the cardinal sin of accusing a white person of racism. “There is no worse charge against a State than deliberate racial discrimination,” the petition tells the justices, “especially in how the State governs elections.” And yet the appeals court “accused and convicted the North Carolina legislature of deliberately designing its laws not just to disenfranchise African-Americans, but to usher in a new ‘era of Jim Crow.’”
“That decision,” they claim, “is an affront to North Carolina’s citizens and their elected representatives.”
Attorney General Stein formally asked the justices to dismiss McCrory’s petition last February. And, while much of McCrory’s legal team want to keep the case alive by adding the state’s GOP-controlled legislature as a petitioner, it is far from clear that they are allowed to do so.
Roberts’ opinion accompanying the Court’s decision not to hear this case leans heavily on all the messiness created by Stein seeking to dismiss the petition and the legislature trying to keep him from doing so. And it strongly suggests that a critical mass of the Court would be more inclined to hear a future case that doesn’t present this messiness. “Given the blizzard of filings over who is and who is not authorized to seek review in this Court under North Carolina law,” Roberts writes, “it is important to recall our frequent admonition that ‘[t]he denial of a writ of certiorari imports no expression of opinion upon the merits of the case.’”
So Monday’s victory for voting rights is likely to prove temporary, as other decisions involving voter suppression laws will make their way up to the Court. But for the moment, at least, what may be the biggest attack on the right to vote since Jim Crow is dead.