Voting rights advocates in North Carolina caught a lucky break on Thursday, where it was revealed that the
panel of three judges who would consider that state’s comprehensive voter suppression law
included one Clinton appointee, Judge Diana Gribbon Motz, and two Obama
appointees, Judges James Wynn and Henry Floyd. Last month, a shrub appointee to a federal trial bench in North Carolina allowed the law to go into effect during the 2014 election,
the panel of three judges from the United States Court of Appeals for
the Fourth Circuit are now considering whether to affirm or reverse that
decision. They heard oral arguments in the case on Thursday.
Several provisions are at issue in this case that all make it more
difficult for residents of North Carolina to cast a vote. One provision
cuts a week of early voting days. Another restricts voter registration
drives. A third implements a strict voter ID law, although that
provision does not take effect until 2016, so it would be reasonable for
the court to decide not to suspend it during the 2014 election.
One provision that received a great deal of attention from the judges
during Thursday’s oral arguments in this case is a change to the state
law that causes ballots to be
tossed out if a voter shows up in the wrong precinct.
For the last decade, voters who showed up at the wrong precinct would
still have their votes counted in races that were not specific to that
precinct, so long as they voted in the correct county. The new law
prohibits these ballots from being counted at all. According to the
Associated Press, that means thousands of ballots will be thrown out
each election year.
Judge Wynn, the only member of the panel who lives in North Carolina,
appeared baffled by this provision. Explaining that he lives very close
to a precinct that is not his assigned polling place, he asked the
state to justify why his vote should be thrown out if he did not travel
to a precinct that is further away from his home. At one point, his
questions grew quite pointed — “Why does the state of North Carolina not
want people to vote?” Wynn asked. At another point, he described a
hypothetical grandmother who has always voted at the same place. Why not
“let her just vote in that precinct?” he wondered?
An attorney defending the North Carolina law spent a great deal of
his time at the podium arguing that it would be too disruptive for a
court to suspend parts of North Carolina’s election law this close to
the November elections. As a legal matter, this is a strong argument. In
a 2006 case called
Purcell v. Gonzalez,
the justices reinstated a voter ID law that had been halted by a lower
court. They explained that “[c]ourt orders affecting elections,
especially conflicting orders, can themselves result in voter confusion
and consequent incentive to remain away from the polls. As an election
draws closer, that risk will increase.”
Yet the judges seemed skeptical of this argument as well, questioning
what evidence the state could show that voters would actually be
confused. When an attorney argued that restoring lost voting rights
could be logistically challenging for the state, Judge Floyd asked
whether “an administrative burden [can] trump a constitutional right?”
The argument that judges should heed
Purcell‘s warning and be cautious about changing voting law close to an election also did not convince a wingnut panel
considering another voter suppression law in Wisconsin. Earlier this
month, a panel of three repugican judges reinstated a voter ID in a
single page order issued the same day that they heard oral arguments in
the case. At the time, election law expert Rick Hasen criticized this
order as a “
very bad idea,” in part because of the reasons stated in
Purcell. There are already early signs that Hasen was correct.
The Wisconsin case is already making its way to the Supreme Court, and the North Carolina case is
likely to wind up there as well,
especially if the Fourth Circuit rules against the state’s law. Should
both cases come before the justices, that means that they will be
confronted with one case where a court changed a state’s election law in
a way that Democrats generally approve of, and another case where a
court changed the state’s election law in a way that repugicans
generally approve of. Both of these changes, moreover, would be made
close to an election.
If the wingnut Roberts Court really meant what it said in
Purcell,
then it is likely to allow the North Carolina law to go into effect
while suspending the Wisconsin law. Should it allow both laws to take
effect, however, that would raise serious concerns about whether the
justices are willing to apply the same rule to every case, regardless of
whether the rule benefits Democrats or repugicans.
