On Monday, the U.S. Supreme Court refused to take up the case of State of North Carolina v. North Carolina State Conference of the NAACP, which stood to be the next big test of how far back the Roberts Court is willing to roll back voting rights. Though the action means the end of the road for this long and tangled case, it is not the end of the fight against racism-fueled voter suppression.
In 2013, the Supreme Court gutted one of the “preclearance” provisions of the Voting Rights Act in Shelby County v. Holder. Prior to Shelby County, that preclearance provision meant locations with a history of discrimination in voting, including counties in North Carolina, needed to seek prior approval from the U.S. Department of Justice (DOJ)—or prevail in federal court—before they could enact changes to their voting laws. After Shelby was decided, North Carolina Republicans waited exactly one day before proposing a law that eliminated same-day voter registration, ended pre-registration of young voters, banned out-of-precinct voting, enacted massive cutbacks to early voting, and created a strict photo ID requirement. The law passed later that year.
The NAACP and other voting rights advocates sued the state and, after losing in district court, prevailed in July 2016 at the U.S. Court of Appeals for the Fourth Circuit. The appeals court held that the law “target[ed] African Americans with an almost surgical provision” and stopped the law from going into effect. In December 2016, North Carolina officials petitioned the Supreme Court for review. However, North Carolina’s offices of the governor and of the attorney general had flipped to Democratic control in the 2016 elections.
Two months later, Gov. Roy Cooper and Attorney General Josh Stein asked the Supreme Court to dismiss the state’s December petition for review. However, lawyers for North Carolina’s General Assembly—which is still controlled by Republicans—opposed the motion. This led to what the Supreme Court called a “blizzard of filings over who is and who is not authorized to seek review in this Court under North Carolina law.”
Roe has collapsed and Texas is in chaos.
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The Supreme Court denied certiorari. Chief Justice John Roberts—who wrote the majority opinion in Shelby—took pains to note that “the denial of a writ of certiorari imports no expression of opinion upon the merits of the case.” In other words, the Court denied this purely on procedural grounds, because there was too much uncertainty as to whether any of the competing parties had the right to continue the lawsuit. The Court, therefore, didn’t rule on anything about the case specifically.
One could almost read Roberts’ words as an implicit invitation to conservatives to bring a more viable case to the Court. By saying that the dismissal of this particular case isn’t based on its merits, Roberts may be tipping his hand that the Court would welcome another chance to further restrict voting rights if the right case came along.
Enter Texas, and its strictest voter ID law in the nation.
SB 14, which Texas passed in 2011, drastically decreased what types of identification would be permissible at the polls. It allowed for the types of identification disproportionately held by white people, such as concealed-carry permits, and prohibited types of ID often held by young people, poor people, and people of color, such as university-issued IDs and government employee identification. It also redrew the state’s districts in a fashion designed to limit the power of voters of color.
Thus far, Texas has not had much success in the courts when defending this law, although it has remained in effect after its implementation in 2013—again, after the ruling in Shelby County v. Holder. As Mother Jones reported:
In April, a federal judge in Corpus Christi ruled that the voter ID law was passed with discriminatory intent. In the past two months, a federal court in San Antonio found both the congressional and the statehouse maps from 2011 intentionally discriminatory. In July, a federal court will determine whether the maps Texas adopted after Shelby are also discriminatory; that case could result in court-drawn maps for the 2018 elections.
However, Texas recently got a big assist on this case. Prior to January 20, the United States had a Justice Department—and a president—philosophically committed to maximizing the franchise of voting. Under Obama, the DOJ had filed court documents stating that SB 14 was enacted with the express intention of discriminating against voters of color.
When Trump won the election, however, he nominated Jeff Sessions, the man too racist to get confirmed as a federal judge back in 1986, to be his attorney general.
Now, the DOJ and President Trump are steadfastly opposed to expansive voting rights. Reflecting that, they recently dropped the Obama-era DOJ’s objection to Texas’ law.
Trump is also going to have the chance to nominate scores of federal judges at both the district and appellate court levels. Moreover, Republicans now control 33 governorships and 32 state legislatures. Conservative states will continue to pass these laws that are explicitly designed to disenfranchise people of color, young people, and poor people (and it is no coincidence those voters tend to break overwhelmingly Democratic). When states do pass those laws and inevitably get sued, they’ll be met with a judiciary that will likely be far friendlier to the notion of voter suppression than it was under President Obama or than it would have almost certainly been under Hillary Clinton. And a DOJ led by Sessions will do nothing at all to stop votes from being suppressed.
To make matters worse, last week Trump made good on his threat to create a commission to investigate the (entirely nonexistent) problem of voter fraud. That commission will be led by Kris Kobach, the Kansas secretary of state and a man described by the ACLU as “the king of voter suppression.” Thanks to Kobach, Kansas has both a restrictive voter ID law and a “show me your papers” law that requires people to provide a birth certificate or passport to register to vote. Kobach also has the unprecedented power to use his office to prosecute voter fraud cases. With Kobach at the helm, doing the bidding of a president who believes that there were millions of fraudulently cast votes in the 2016 election (all of which he believes were cast for Hillary Clinton), this commission will not do anything to stem the tide of racially motivated voter suppression laws. In fact, it will probably encourage it.
At a time when victories feel fewer and farther between, it feels great to have notched a win in North Carolina. The Fourth Circuit had blocked the five provisions of the law that most affected Black individuals; the Supreme Court’s refusal to hear the case means those discriminatory provisions will not go into effect to disenfranchise voters of color.
However, it is also probably easy to predict how the current Supreme Court—with conservative Justice Neil Gorsuch replacing conservative Antonin Scalia—would rule on a voting rights case that wasn’t hobbled with the procedural problems of the North Carolina case. And there’s a real possibility that it will get its chance.
North Carolina may be safe for now, but Texas isn’t. In the long run, given the iron control Republicans exert on all branches of the federal government and many state-level governments, no state can be said to be truly safe.