The U.S. Supreme Court’s recent refusal to overturn a scathing condemnation and reversal of North Carolina’s notorious 2013 voting law has a lot of people feeling triumphant. The 4th Circuit Court of Appeals not only struck down North Carolina’s so-called Voter Identification Verification Act (VIVA) in late July of last year, but emphasized that it was clear from the impact of the majority of its provisions that its intent was to disenfranchise African American voters.
But it’s way too soon to celebrate.
Passed after the Supreme Court’s ruling in Shelby County v Holder (which effectively eliminated federal scrutiny under the Voting Rights Act) VIVA is often called a Voter ID law. But it includes several other provisions, including a rollback of the number of days for early voting, the elimination of same-day registration, and pre-registration of sixteen- and seventeen-year-olds.
An appeal filed shortly after the 4th Circuit’s ruling was in limbo until the Supreme Court shot it down this week. So were the state’s election rules. VIVA was in place for North Carolina’s March 2016 primary, but in November the state reverted back to a mix of old election rules and changes passed subsequent to the 2013 law.
Backers of the bill had held out hope that once the Supreme Court returned to full strength with Trump’s appointment of Neil Gorsuch, the high court would take up the case—or rule in another case that could affect VIVA’s fate.
In a note accompanying the court’s decision, Chief Justice John Roberts said the request for the court to hear the case was denied not because of the merits, but due to the “blizzard of filings over who is and who is not authorized to seek review in this Court under North Carolina law,” alluding to the back and forth between the governor and the legislature over who has the legal authority to defend the law.
Backers of the voter ID bill had held out hope that Trump’s Supreme Court appointment of Neil Gorsuch would mean a ruling in their favor.
Nevertheless, after Monday’s Supreme Court decision, GOP leaders were quick to blame new Democratic Governor Roy Cooper and his fellow Democrat Attorney General Josh Stein for withdrawing from the case.
Cooper, who ousted Republican VIVA proponent Pat McCrory in an extremely close race, applauded the decision, calling the law discriminatory and vowing to “protect the right of every legal, registered North Carolinian to participate in our democratic process.”
“We need to be making it easier to vote, not harder,” he said in statement.
But a joint statement issued by North Carolina state House Speaker Tim Moore and Senate leader Phil Berger criticized Cooper and Stein, saying that by withdrawing from the case North Carolina voters were “denied their day in court.”
They seized on Roberts’s statement to declare that the fight is not over.
“In light of Chief Justice Roberts’s 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 common-sense requirement to show a photo ID when we vote.”
Republicans have also been busy laying the groundwork for a possible new law this session. GOP state party chairman Robin Hayes vowed that the General Assembly would definitely take up new legislation, saying the state “needs” a Voter ID law.
On May 5, the House Elections and Ethics Law Committee heard a detailed report from the State Board of Elections officials on the 2016 elections. The report states that of the 4.8 million voters who cast ballots in 2016, a total of 508 were ineligible voters, with a large majority of those cases involving felons on probation. The report found only a handful of cases of voter impersonation and referred only two of them to prosecutors.
Nevertheless, House Republicans on the committee continued to raise concerns about voter fraud and pressed for an ID law.
On May 16, the committee chairman, Representative David Lewis, did not rule out drafting a new bill in time for the current session, which is expected to end in early July.
“Leadership and members are meeting to try and craft a plan,” he told The Progressive Tuesday. “I do not know if it will be this session. But I do hope to have it back in place before the 2018 [election]. . . . Those concerns haven’t gone away.”
Governor Cooper also expects the legislature to try again—possibly within ten days.
Rick Hasen, a University of California-Irvine election law professor, said that attempts to pass another law as strict as VIVA could provoke a strong response from the courts. In a May 15 post on his Election Law Blog, Hasen spelled out the risk of a sharp response from the courts.
“It is worth remembering that a finding of intentional racial discrimination in voting gives a federal court the power to put a state or locality under federal supervision (or “preclearance”) for up to ten years,” Hasen wrote. “The Fourth Circuit declined to exercise this power in the last case, but a federal court could well do so next time, using the intentional discrimination finding in the last case as a predicate.”
Kirk Ross is a longtime North Carolina journalist and a member of the state’s Capital Press Corps where he serves as Bureau Chief for Carolina Public Press.