[EL] North Carolina petition

Thu Oct 2 14:20:31 PDT 2014

    Breaking: North Carolina Files Emergency #SCOTUS Petition in Same
    Day Voting, Precinct Voting Case: Analysis
    <http://electionlawblog.org/?p=66256>

Posted onOctober 2, 2014 1:47 pm 
<http://electionlawblog.org/?p=66256>byRick Hasen 
<http://electionlawblog.org/?author=3>

I have now had a chance to read North Carolina's32-page petition 
<http://electionlawblog.org/wp-content/uploads/North-Carolina-voting-applic.-14A358.pdf> (with 
an extensive appendix) asking for the Supreme Court to reverse an order 
issued by the 4th Circuit on a 2-1 vote 
<http://electionlawblog.org/wp-content/uploads/NC-Opinion.pdf> requiring 
North Carolina to restore same day voter registration and the counting 
of out of precinct ballots in the upcoming election. It is quite a feat 
to file such an impressive document in just a little more than 24 hours 
afterthe 4th Circuit's decision <http://electionlawblog.org/?p=66138>, 
regardless of whether NC ultimately should prevail.

I think there is a good chance North Carolina will prevail in on this 
emergency motion and get these changes stopped, even though I believe 
that North Carolina's ominbus bill, which contains the toughest set of 
voting restrictions I've seen in a single law passed anywhere since the 
passage of the 1965 Voting Rights Act, should be found to be 
unconstitutional. (My theory ---advanced in this /Harvard Law Review 
Forum /piece 
<http://harvardlawreview.org/2014/01/race-or-party-how-courts-should-think-about-republican-efforts-to-make-it-harder-to-vote-in-north-carolina-and-elsewhere/>--is 
that it should be unconstitutional for a state to impose significant 
burdens on voters for no good reasons or for partisan reasons.)

The state makes two main arguments in support of its position.

1. The 4th Circuit's reading of section 2 of the Voting Rights Act is 
too broad. The 4th Circuit majority had offered a generous but 
reasonable reading of the scope of section 2 of the Voting Rights Act. 
The district court had offered a much narrower reading of the scope of 
section 2.  As I explainedin my piece in /Slate /this week, 
<http://www.slate.com/articles/news_and_politics/jurisprudence/2014/09/voting_restrictions_may_reach_the_supreme_court_from_ohio_wisconsin_north.html>the 
conservative 5-Justice Supreme Court majority is ultimately likely to 
side with the narrower view of section 2 and not find the North Carolina 
cutbacks to be a section 2 violation. Because one of the key factors in 
considering whether the Supreme Court should grant this emergency relief 
is the likelihood that North Carolina will be successful in the Supreme 
Court (should the Court take the case), the merits matter for the stay.

2. North Carolina also makes much of the chaos it sees (and the affront 
to state sovereignty it objects to) in changing the election rules so 
close to the objection. This is the /Purcell/objection, and it is in 
play in the North Carolina case as well. The main difference in the 4th 
Circuit between the majority and the the dissent was over the question 
whether making these changes now is going to cause confusion and impose 
a burden on election officials and the state in light of Supreme Court 
admonitions not to change election rules so close to the election. North 
Carolina says that poll workers cannot deal with these changes at this 
late date. As I indicatedin a 
post<http://electionlawblog.org/?p=66196>last night, the /Purcell/delay 
issue is tricky for opponents of both Wisconsin's and North Carolina's 
laws.  Both involve last minute changes, but WI involves a new 
restriction while NC involves lifting new restrictions. Both change the 
status quo. The question is whether the cases can be distinguished on 
the risk of disenfranchising voters.

It seems quite likely that the Purcell issue leads the Court to issue 
stays in /both/WI and NC, which also has a nice political appeal to 
it---as opposed to all 5 conservative Justices voting in favor of voting 
restrictions in OH, WI and NC and all 4 liberal Justices voting against 
the voting restrictions.

Stay tuned.

[This post has been updated.]

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-- 
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu
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