North Carolina has filed an emergency petition at the Supreme Court to salvage its voter identification law.
The brief comes over two weeks after the U.S. Court of Appeals for the Fourth Circuit struck down the law. Many legal observers questioned why the state took so long to file an emergency appeal.
North Carolina retained former U.S. Solicitor General Paul Clement and his firm Bancroft PLLC, a boutique firm with corporate and appellate practices based in Washington, D.C., to bring the appeal to the high court. Clement is widely considered one of the most effective appellate advocates in the country.
The law, adopted days after the Supreme Court effectively struck down section 5 of the Voting Rights Act in Shelby County v. Holder, requires voters to present a government-issued photo identification before casting ballots. It also eliminated same-day voter registration, and significantly reduced the number of early voting days. In a brutal finding last month, the Fourth Circuit struck down the law, in a blockbuster ruling which declared that the state legislature had acted with discriminatory intent when adopting the law, in violation of section 2 of the Voting Rights Act and the Constitution’s Equal Protection clause.
“Thus, in what comes as close to a smoking gun as we are likely to see in modern times, the State’s very justification for a challenged statute hinges explicitly on race — specifically its concern that African Americans, who had overwhelmingly voted for Democrats, had too much access to the franchise,” the three-judge panel wrote.
North Carolina puts forward several arguments in its emergency petition: the Fourth Circuit’s decision invalidates voter ID laws around the country, effectively guts a controlling Supreme Court precedent, and creates chaos just months before a major election.
Since the Fourth Circuit asserted discrimination could be inferred from the identification requirement (as African-Americans are uniformly less likely to have government-issued IDs), and because state legislators had sought data on voting patterns and race before adopting the law, the state argues that practically all state voter identification laws are endangered by the ruling, since most laws would satisfy at least one of those allegedly discriminatory criteria. The Supreme Court has previously held that state governments have a compelling interest in adopting voter ID laws. (RELATED: A Bad Week For Voter Identification Laws)
The state’s lawyers further argue the Fourth Circuit’s ruling neuters Shelby, in that the decision made it harder to escape the preclearance process under section 2 than it was under the now defunct section 5. Until the Shelby ruling, states with a history of discrimination needed the approval of the U.S. Department of Justice before making changes to voting laws (called “preclearence.”) The high court essentially scuttled this practice in 2013, finding that the provision relied on antiquated data which therefore burdened the sovereignty of the states.
North Carolina now argues that the formula the Fourth Circuit applied against it is even more stringent than the procedures the Supreme Court has already tossed in Shelby, and should therefore be vacated.
Finally, the state alleges it will suffer irreparable harm — a key criterion for an emergency appeal — if the Fourth Circuit’s decision is not vacated. State officials say they have worked tirelessly to implement the voter ID requirement, and are only financially and logistically prepared for 10 days of early voting, as opposed to 17.
Some legal observers questioned why the state had waited so long to file an emergency appeal. Seventeen days elapsed between the Fourth Circuit’s ruling and the North Carolina appeal, an unusually long period of time in the context of emergency litigation.
Election law expert professor Rick Hasen of UC Irvine School of Law suggested in a post on his Election Law Blog last week that the state knows it cannot prevail at the Supreme Court, and would prefer to save face by blaming timing issues.
Send tips to kevin@dailycallernewsfoundation.org.
All content created by the Daily Caller News Foundation, an independent and nonpartisan newswire service, is available without charge to any legitimate news publisher that can provide a large audience. All republished articles must include our logo, our reporter’s byline and their DCNF affiliation. For any questions about our guidelines or partnering with us, please contact licensing@dailycallernewsfoundation.org.