[EL] North Carolina petition

Thu Oct 2 14:29:45 PDT 2014

The Chief Justice has asked for a response by Sunday at 5 pm, two days 
earlier than J. Kagan asked for the WI response.

On 10/2/14, 2:20 PM, Rick Hasen wrote:
>
>
>     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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> <http://electionlawblog.org/?cat=18>,The Voting Wars 
> <http://electionlawblog.org/?cat=60>,voter id 
> <http://electionlawblog.org/?cat=9>,voting 
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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
> http://www.law.uci.edu/faculty/full-time/hasen/
> http://electionlawblog.org
>
>
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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
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org

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