[EL] NC case development

Tue Feb 21 09:45:51 PST 2017

Correction: It appears Republicans still have a majority on the state Board of Elections.

--
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
rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org<http://electionlawblog.org/>

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Rick Hasen
Sent: Tuesday, February 21, 2017 9:42 AM
To: Election Law <law-election at uci.edu>
Subject: [EL] NC case development

Breaking: NC Gov, AG Take Steps to Withdraw from #SCOTUS Voting Case–But Case Not (Yet) Over<http://electionlawblog.org/?p=91218>
Posted on February 21, 2017 9:19 am<http://electionlawblog.org/?p=91218> by Rick Hasen<http://electionlawblog.org/?author=3>

Last week I explained the following:<http://electionlawblog.org/?p=91144>

North Carolina has filed its reply brief<http://electionlawblog.org/wp-content/uploads/16-833-Reply-Brief.pdf> in the North Carolina voting case, and the Supreme Court is set to review it<https://www.supremecourt.gov/search.aspx?filename=/docketfiles/16-833.htm> at its March 3 conference. (If the Court does grant review, it typically takes at least two conferences before that announcement is made.)

A few weeks ago, I wrote<http://www.slate.com/articles/news_and_politics/jurisprudence/2017/02/north_carolina_should_withdraw_its_petition_to_the_supreme_court_in_its.html> at Slate that “in the short term, there’s one simple action that could make voting rights a bit more secure: Roy Cooper, the new Democratic governor of North Carolina, and the state’s new Attorney General Josh Stein should withdraw a petition for writ of certiorari pending at the Supreme Court<http://electionlawblog.org/wp-content/uploads/North-Carolina-Voter-ID-Cert-Petition-FINAL.pdf> to review the 4th Circuit’s decision<http://electionlawblog.org/wp-content/uploads/nc-4th.pdf> striking down North Carolina’s strict voting law.”  I followed that up with a blog post<http://electionlawblog.org/?p=90895> stating that NC law was not clear on whether the Governor had the authority to withdraw the petition, but at the least he could put in a letter expressing his disagreement with the argument that the Supreme Court should review the case.

The governor and AG were non-committal,<http://www.wral.com/cooper-not-tipping-hand-on-whether-he-ll-withdraw-nc-voter-id-appeal/16495766/> and now it appears they’ve filed nothing. Without explanation. And with a lot riding on this. By the time the Court would hear the case, we likely will have a Fifth conservative Justice and this important opinion could be reversed.

Now comes a press release from the governor’s office:

FOR IMMEDIATE RELEASE

February 21, 2017

Governor Cooper, AG Stein Take Steps to Withdraw from Voting Restrictions Case

Raleigh: Today, Governor Roy Cooper and Attorney General Josh Stein have taken steps to withdraw the state’s petition for a Writ of Certiorari to the U.S. Supreme Court of State of North Carolina V. North Carolina State Conference of the NAACP, the voting restrictions law overturned by the Fourth Circuit Court of Appeals last year.

Last year, judges on the Fourth Circuit overturned North Carolina’s 2013 voting restrictions law after finding that it sought to “target African Americans with almost surgical precision” in order to limit access to the ballot box.  The previous administration joined in petitioning the U.S. Supreme Court to hear the case on December 27th.

This morning, the Governor’s General Counsel and Chief Deputy Attorney General jointly sent a letter discharging outside counsel in the case on behalf of the State. Also today, the Governor’s Office and the NC Department of Justice formally withdrew the State and Governor’s request for the U.S. Supreme Court to review the Fourth Circuit’s decision.

After the Governor’s Office and N.C. Department of Justice withdraw, the State Board of Elections, its individual members, and its Executive Director will remain in the case for the time being.

“We need to make it easier for people to exercise their right to vote, not harder, and I will not continue to waste time and money appealing this unconstitutional law,” Governor Cooper said. “It’s time for North Carolina to stop fighting for this unfair, unconstitutional law and work instead to improve equal access for voters.”

“The right to vote is our most fundamental right,” said AG Stein. “Voting is how people hold their government accountable. I support efforts to guarantee fair and honest elections, but those efforts should not be used as an excuse to make it harder for people to vote.”

###

It is unclear to me what it means for the Board of Elections and its executive director to “remain in the case for the time being.”  This again is one of those odd aspects as to who controls North Carolina litigation.  Not clear to me if they can get or keep outside counsel. And now Democrats have a majority on this board (at least until the courts decide if the structure of this board can change as NC legislature ordered last year).  Also, I am not sure if the Legislature can seek to intervene at this time. I welcome clarification from those who understand North Carolina law on this point.

More as I know it. But getting this case withdrawn would be a big deal and a good thing.

UPDATE: The post<https://twitter.com/JoshStein_/status/834092483361521665> from the NC AG says the plaintiffs will give up their right to up to $12 million in attorney’s fees in exchange for dropping the case. That’s a nice way to frame the issue for NC voters.
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D91218&title=Breaking%3A%20NC%20Gov%2C%20AG%20Take%20Steps%20to%20Withdraw%20from%20%23SCOTUS%20Voting%20Case%E2%80%93But%20Case%20Not%20(Yet)%20Over>
Posted in The Voting Wars<http://electionlawblog.org/?cat=60>

--
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
rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org<http://electionlawblog.org/>

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