The U.S. Supreme Court has decided not to take up a lower court’s 2016 ruling that portions of North Carolina’s voter ID law are unconstitutional.
The Fourth Circuit Court of Appeals struck down portions of the state’s Voter Identification and Verification Act (VIVA) in July of last year, ruling that the Legislature passed the legislation specifically to reduce or eliminate voter accommodations used more by African Americans with the goal of lowering their voter turnout.
The 4th Circuit judges asserted that the ID requirement and other requirements would reduce the vote of African Americans in the state, though the voter turnout data doesn’t support that claim.
African Americans made up 23 percent of the electorate of the 2012 election and in the 2016 election, three years after VIVA passed, African Americans made up 22 percent of the state electorate.
African Americans made up about 700,000 of the 3.2 million North Carolina voters in the last election, in line with turnout for President Barack Obama’s second run for the White House in 2012 when 1 million African Americans turned out to vote among the 4.5 million voters in the state.
But in its ruling the Appellate Court ruled that the ID requirement, as well as requiring voters to vote at their precinct and other policies, would target African Americans “with almost surgical precision,” tossing aside the state’s assertion that the policies were meant to combat voter fraud, and saying the law was imposing “cures for problems that did not exist.”
The ruling also stated, “Faced with this record, we can only conclude that the North Carolina General Assembly enacted the challenged provisions of the law with discriminatory intent. Accordingly, we reverse the judgment of the district court to the contrary and remand with instructions to enjoin the challenged provisions of the law.”
State Speaker of the House Rep. Tim Moore (R-Cleveland) and Senate President Pro Tempore Sen. Phil Berger (R-Rockingham) responded to the court’s decision not to take up the case in a joint statement saying, “It is unconscionable that [Gov.] Roy Cooper and [Attorney General] Josh Stein – who ignored state law and flouted their conflicts of interest to kill voter ID in North Carolina – have now caused the vast majority of voters who support voter ID to be denied their day in court. In light of Chief Justice Roberts’ statement that the ruling was not based on the merits of voter ID, all North Carolinians can rest assured that Republican legislators will continue fighting to protect the integrity of our elections by implementing the commonsense requirement to show a photo ID when we vote.”
As indicated by Moore and Berger’s statement, the legislature is not left without any recourse. Civitas Institute President Francis De Luca says the General Assembly could now move forward with a clean voter ID bill that could then go through the courts for consideration, and optimistically could move through the courts before the 2018 midterm elections.
“Last year when it was initially appealed it was a 4-4 split by the entire court to take it up, and when you have a split where it is 4-4 it means you don’t take it up,” De Luca said. “You have to have an absolute majority to go forward so a split decision means the former decision is upheld and that was the Fourth Circuit decision, but if you look at the broader picture, right now the Supreme Court is facing different decisions in different circuits, they have the Fourth Circuit saying one thing, they have another circuit validating voter ID. The Supreme Court itself has spoken on Voter ID so at some point they’re going to have to answer this question.
“Now in North Carolina’s particular case we have a new governor and an attorney general who are both actively opposing the Supreme Court reviewing it. I think that Chief Justice Roberts is very protective of the Supreme Court in terms of its political functioning so he views it as saying ‘look, you’ve got to sort this out at your state or we don’t feel confident that we are taking it for the right reasons so therefore if you want to come back to us with another law that’s probably okay.’ He didn’t say those words but I think that’s what’s implied there, pass another law, bring it back to us and we’ll consider it when it’s a clean appeal.”
De Luca said that the state needs to pass a clean photo ID requirement bill and then let that bill work its way through the court system.
“They need to pass a photo voter ID law, let it work its way through the system and they’ll have to hire attorneys because obviously the attorney general and the governor are not going to support it, but they could have the votes to override the governor’s veto, and let that work its way through the appellate process,” he said. “If they passed one this year it would probably be settled before the 2018 elections.”
NCGOP Chairman Robin Hayes released a statement Monday calling out Cooper and Stein for their attempts to interrupt the state’s appeal before it even had a chance to go before the Supreme Court.
“Gov. Roy Cooper and Attorney General Stein have blocked the people’s desire for voter ID and other common sense voting protections,” Hayes said. “However, as noted by Chief Justice Roberts, ‘The denial of a writ of certiorari imports no expression of opinion upon the merits of the case.”’
This means that deciding not to hear the case does not have any bearing on how the court feels about the issue at hand.
“Republicans will continue to fight for common sense and constitutional voter ID measures, similar to what many other states already have,” Hayes went on to say. “While Cooper and Stein have stymied voter ID for now, they will ultimately lose in their efforts to block North Carolina citizens from having these protections.”