The big win for voting rights activists at the Supreme Court last week came with an equally big asterisk, and provided new reason for jittery liberals and civil rights groups to continue to fret about Chief Justice John G. Roberts Jr.
The justices without noted dissent on May 15 said they would not consider reviving North Carolina’s sweeping 2013 voting law, which had been struck down by a lower court after years of litigation. A unanimous panel of the U.S. Court of Appeals for the 4th Circuit had ruled that the state’s Republican legislative leadership had intentionally crafted the law to blunt the growing political power of African American voters.
The bottom-line importance of the Supreme Court’s pass was clear: the law, opposed by a broad coalition of voting rights groups, civil rights organizations and the Obama Justice Department, cannot be used.
“Today’s announcement is good news for North Carolina voters,” Gov. Roy Cooper (D) said. “I will continue to work to protect the right of every legal, registered North Carolinian to participate in our democratic process.”
But J. Gerald Hebert of the Campaign Legal Center, one of the groups that had fought the North Carolina law, said two things became immediately clear.
First, North Carolina legislative leaders would immediately begin rewriting the law.
They will take pains to avoid some of the ham-handed legislative maneuvers that caused Judge Diana Gribbon Motz, writing for the 4th Circuit panel, to declare that the state had passed a law in the absence of a problem and “restricted voting and registration in five different ways, all of which disproportionately affected African Americans.”
Second, Roberts made it clear the justices were not endorsing the 4th Circuit’s reasoning by passing on the case. His statement was unusual — only on rare occasion during more than a decade on the job has Roberts explained his vote not to take a case — and it sent what seemed to be a signal for states whose laws are challenged to bring them to the Supreme Court.
“He wrote so that people would not get the wrong idea,” said Hans von Spakovsky, senior legal fellow at the Heritage Foundation, who thinks the North Carolina case was wrongly decided.
Roberts spent nearly two pages describing the legal jujitsu surrounding the case: Cooper and the state’s Democratic attorney general wanted to abandon the appeal because they disapprove of the law, the legislature’s Republican leaders wanted the Supreme Court to take it. In the end, Roberts said, that confusion controlled the decision to not take the case and no more should be read into it.
The most pragmatic liberals say that getting the Supreme Court not to take a voting rights case is their preferred path. With Justice Neil M. Gorsuch joining the court, there is likely a five-member majority that sees no constitutional or legal problems in a safeguard like requiring photo-ID or changing the number of days of early voting.
And Roberts has led the way. He was part of the majority that in 2008 upheld Indiana’s voter ID law. As he often does in cases with political implications, he chose liberal Justice John Paul Stevens as the majority member to write the opinion. Stevens, who retired in 2010, has since expressed doubt about the outcome.
Roberts took the lead in the 2013 decision that struck down a key part of the Voting Rights Act, which effectively freed states, mostly in the South, from having to get federal approval before making changes to election laws.
It was in the immediate aftermath of the decision that North Carolina passed its comprehensive rewrite. Among other things, it imposed the voter ID requirements, cut back on the number of days of early voting and eliminated same-day registration. Motz said legislators knew all of those would harm black voters. The voter ID provision “retained only those types of photo ID disproportionately held by whites and excluded those disproportionately held by African Americans.”
But last summer, Roberts and the court’s other conservatives said they would grant North Carolina’s request to use the law in the fall election while it pursued its appeal of the 4th Circuit decision. That bid failed on a 4-to-4 vote.
Roberts also gave encouragement to Texas earlier this year when it asked the court to overturn a decision by the entire U.S. Court of Appeals for the 5th Circuit that found the state’s voting law discriminatory.
He explained that there was still work left for lower courts to do before the justices considered the law. “The issues will be better suited” for the Supreme Court’s review once that has been completed, he said.
It seems telling that Roberts puts aside his usual reluctance to comment on the court’s decisions on this issue. “He looks at voting rights differently than he does other things,” Hebert said.
There will likely be plenty of chances for Roberts and the court to be more specific. Many states have made changes in their voting laws, and one of them will make it to the Supreme Court.
“I think it’s pretty clear that’s going to happen,” von Spakovsky said.