A closely divided Court today denied North Carolina’s request to allow the state to enforce three provisions of its controversial 2013 election law when voters go to the polls for this fall’s general elections. The state needed five of the eight Justices to agree to halt a lower court’s ruling that blocked the law, but it came up one short – illustrating the impact of the death of Justice Antonin Scalia, who likely would have joined the Court’s other conservative Justices in voting for the state.

The North Carolina legislature enacted the law in the wake of the Court’s 2013 ruling in Shelby County v. Holder, which struck down the federal formula used to determine which state and local governments must obtain advance approval for any changes to their voting rules. The law would require North Carolina voters to show a government-issued photo ID, reduce the number of days for early voting, and eliminate out-of-precinct voting, same-day voter registration, and preregistration for young voters.

A federal trial court upheld the law against claims that it was racially discriminatory. But in late July of this year, a federal appeals court barred the state from enforcing the law. The court of appeals rejected the state’s explanation that the law was intended to combat voter fraud and “promote public confidence in the election system.” Rather, the court of appeals concluded, the law “hinges explicitly on race—specifically its concern that African Americans, who had overwhelmingly voted for Democrats, had too much access to” voting.

On August 15, North Carolina asked the Supreme Court to step in and allow the state to enforce three of the law’s provisions – the voter ID requirement, the reduction in early voting days, and preregistration for young voters – during the upcoming elections. Doing so, the state told the Justices, would stave off the “voter confusion” that might ensue if the state were not allowed to use the same procedures (including the voter ID requirement) that it used in the March 2016 elections. But the federal government and civil rights groups challenging the law countered that a ruling for the state would actually increase the likelihood of “mistake and confusion,” because the state had already made plans for the November election to go forward under the terms of the appeals court’s order blocking the law.

Today’s one-page order gave no explanation for the Court’s ruling. However, Chief Justice John Roberts and Justices Anthony Kennedy and Samuel Alito indicated that they would have granted the state’s request and allowed it to enforce the voter ID requirement and reduction in early voting; Justice Clarence Thomas would have granted the request in its entirety. Notably, on August 3 Justice Stephen Breyer joined his more conservative colleagues in voting to block a federal district court order that would have required a Virginia school board to allow a transgender student who identifies as a boy to use the boys’ bathroom when school resumes last week; Breyer indicated that he did so “as a courtesy.” Breyer did not do so today.

With today’s order, the Court ruled only on North Carolina’s request to enforce the three provisions during the upcoming election; it did not weigh in on the merits of the lower court’s ruling striking down the law.  The state can still ask the Supreme Court to review the dispute, but even if it agrees to do so, the Court would not normally hear oral argument and issue an opinion until well after the November election.  (Although the state could ask for expedited briefing and oral argument, it would be a long shot given today’s denial of a stay.)  And challenges to the decisions about early voting made by local election boards – which have themselves been characterized as discriminatory – could also percolate up to the Court on an emergency basis.

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Recommended Citation: Amy Howe, North Carolina comes up one vote short for stay in election law case, SCOTUSblog (Aug. 31, 2016, 4:44 PM), http://www.scotusblog.com/2016/08/north-carolina-comes-up-one-vote-short-for-stay-in-election-law-case/