In a highly anticipated case involving voter ID, the Supreme Court punted, denying certiorari. Chief Justice John Roberts, who wrote the majority opinion invalidating the pre-clearance requirement for nine states under the Voting Rights Act (VRA), issued a rare explanation of the decision not to hear the case.
The case concerned a North Carolina law that “contained measures (1) requiring voters to present an approved form of photo identification before casting a valid ballot; (2) reducing the early voting period from 17 to 10 days; (3) eliminating out-of-precinct voting; (4) eliminating same-day registration and voting; and (5) eliminating preregistration by 16-year-olds.” The district court dismissed a challenge, but the Court of Appeals for the Fourth Circuit reversed, determining that North Carolina acted with “discriminatory intent.” Roberts then recounted “the blizzard of filings over who is and who is not authorized to seek review in this Court under North Carolina law. He concluded that “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.’ ”
What does this mean, and why did Roberts go out of his way to explain that procedural confusion apparently was at the root of the court’s non-decision? As a practical matter, the Fourth Circuit’s ruling stands, is binding and can be cited in any state covered by the Fourth Circuit (Maryland, Virginia, West Virginia, North Carolina and South Carolina). That is a big win for opponents of voter ID laws and follows wins for voting rights advocates in the Fifth Circuit. The Texas Tribune reported last July:
The U.S. 5th Circuit Court of Appeals affirmed previous rulings that the 2011 voter ID law — which stipulates the types of photo identification election officials can and cannot accept at the polls — does not comply with the Voting Rights Act.
The full court’s ruling delivered the strongest blow yet to what is widely viewed as the nation’s strictest voter ID law. Under the law, most citizens (some, like people with disabilities, can be exempt) must show one of a handful of types of identification before their ballots can be counted: a state driver’s license or ID card, a concealed handgun license, a U.S. passport, a military ID card, or a U.S citizenship certificate with a photo.
The Fifth Circuit includes Texas, Mississippi and Louisiana, so the anti-voter ID case is the applicable precedent in those three states.
Similar rulings followed in Wisconsin, Ohio and South Dakota. And in Kansas, a state with a foreign-born population of 6.8 percent, courts have repeatedly rejected efforts by the Republican secretary of state to require voters to provide proof of citizenship to vote.
When they were first proposed, voter ID laws sounded reasonable to lots of people, including the Supreme Court. The Justices upheld an Indiana voter ID law in 2008. But even the judges who wrote key opinions upholding the law in that case have since expressed concerns about how voter ID laws work out in practice. Supreme Court Justice John Paul Stevens and Judge Richard Posner have noted that the Indiana case came to them as a blanket challenge to the law, without an evidentiary trial. Both have since suggested that the proof offered subsequently in other states shows these laws are aimed at suppressing the minority vote.
The wins against voter ID come at a time when the president has appointed notorious voting-fraud alarmist Kris Korbach, the secretary of state of Kansas referenced above, to head his voter fraud investigation of his bogus claim that 3 million to 5 million people voted illegally. (Perhaps voting-ID proponents would be better off with someone who has won some cases?) Voting rights advocates strongly suspect that this is a charade to support new voting restrictions. However, with eight states in two circuits now invalidating voting restrictions, his ability to wreak havoc on this issue is limited.
So why was Roberts so careful in restating the well-known rule that the court’s denial of cert does not suggest a ruling on the merits? Maybe this was an effort to defend his own VRA opinion which invalidated pre-clearance for nine states, five of which are covered by either the Fourth or the Fifth Circuit decisions. Recall that his opinion posited that so much had changed since the pre-clearance formula was devised that it would be unfair to keep the covered states under the federal government’s thumb based on 1975 data. In essence, Roberts’s statement might be seen as a defensive statement, “This does not mean I was wrong to excuse the states within the Fourth Circuit from pre-clearance requirements.” Voting rights attorneys surmise that the court actually is very interested in hearing a decision on the issue but hasn’t found the right case to take up. This might be in essence a “keep trying” message to the voting rights bar.
For now, the tide seems to be swinging against voter ID and other limits on voting. Voting rights litigants explain that they have become much more effective in ferreting out evidence of discrimination and effects on minority communities. Meanwhile, legislatures — as in the case of North Carolina — have vastly overreached, combining voter-ID laws with other measures (e.g. curtailing early voting) that cumulatively reveal eagerness to suppress minority voting. At any rate, the success in these cases and the decision not to hear the North Carolina case are more tidbits of good news for Democrats (who rely on less regular voters) in advance of the 2018 midterms.