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Eric Davis: Carolina case highlights court issue

In 2013, the Republican-majority North Carolina legislature enacted a law requiring the state’s voters to show a photo ID at the polls and limiting early voting to the last 10 days before Election Day. The NAACP challenged the law in federal court, claiming that the new requirements, which the legislature said were needed to prevent election fraud, were actually motivated by racial discrimination. Because the changes would disproportionately affect low-income and minority voters, the NAACP argued they would violate both the federal Voting Rights Act and the Constitution.
The federal district court upheld the law, but in mid-July, the U.S. Court of Appeals for the Fourth Circuit ruled in favor of the NAACP and overturned the district court decision. The appeals court refused to stay its ruling until the Supreme Court could consider the state’s appeal, and ordered that this November’s election be conducted under the old rules, with no photo ID requirement and early voting starting in mid-October. The three judges on the appeals court panel were appointed by Presidents Clinton or Obama.
A few weeks ago, North Carolina’s Republican governor, Pat McCrory, and other state officials filed an emergency appeal with the Supreme Court, asking that the changes be reinstated for this year’s election. With the high court in recess for the summer, the justices considered the case on the basis of the printed record, with no oral argument. Last week, the Supreme Court decided, by a 4-to-4 tie vote, to let the appeals court’s decision stand. No photo ID will be required to vote in North Carolina this year, and early voting will begin in mid-October.
The four justices voting to uphold the appeals court’s decision, and thus to strike down the law, were all appointed by Democratic presidents — Justices Ginsburg, Breyer, Sotomayor and Kagan. The four justices voting to put the appeals court’s decision on hold, and reinstate the challenged provisions, were all appointed by Republican presidents — Chief Justice Roberts, and Justices Kennedy, Thomas and Alito.
Meanwhile, North Carolina will proceed with its appeal of the Fourth Circuit’s decision through the Supreme Court’s regular procedure. If the case is accepted for full review, oral arguments and a decision will likely come in the spring of 2017. If the Supreme Court continues to have only eight members at that time, there is no reason to believe the outcome would be anything other than a 4-to-4 tie vote upholding the appeals court’s decision.
This case illustrates the importance of the presidential election for the future composition of the Supreme Court. If the seat vacated by Justice Antonin Scalia’s death were filled by Merrick Garland, or another appointee of Hillary Clinton, there would likely be a five-justice majority to strike down the North Carolina law, and similar voting restrictions that have been enacted by Republican-controlled legislatures in other states, such as Texas and Wisconsin.
If Donald Trump were to win the presidential election and nominated a conservative justice, who was then confirmed by the Senate, there would likely be a five-justice majority to uphold the North Carolina law, and other states with Republican governors and legislatures could very well introduce similar restrictions on voting.
Polls indicate that Clinton is likely to win the presidency, with the Senate too close to call. Filibusters of Supreme Court nominees, which require only 40 votes, are still allowed by Senate rules.
If the November election results in Clinton and a Republican Senate, will the Republicans allow a Clinton Supreme Court nominee to come up for a yes-or-no vote on the Senate floor? If the Democrats win the Senate, might the Republicans vote to confirm Garland in the lame-duck session after the election? Or might 40 Republicans resort to a filibuster in either scenario?
Eric L. Davis is professor emeritus of political science at Middlebury College.

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