The U.S. Supreme Court's handling of North Carolina's long-shot bid to reinstate its contentious voter identification law will set the tone for the court's treatment of similar cases that could reach the justices before the Nov. 8 elections.
Voter identification laws were adopted by several states in recent years, generally driven by Republicans who said the laws were meant to prevent election fraud. Democrats have argued that the laws were meant to keep minorities, who tend to vote for Democrats, away from the polls. Civil rights groups have challenged the laws in court.
The Richmond, Virginia-based 4th U.S. Circuit Court of Appeals on July 29 invalidated the North Carolina law, ruling that it intentionally discriminated against minority voters.
Attorneys for North Carolina Governor Pat McCrory, a Republican, filed court papers late on Monday with Chief Justice John Roberts, seeking restoration of parts of the law and arguing the appeals court was wrong to set it aside so close to the election.
The Supreme Court rarely grants such emergency requests, and is even less likely to do so now because it is down to only eight justices, rather than the usual nine, following the February death of conservative Justice Antonin Scalia.
He was a likely vote to put the North Carolina law back in place for the election. But the court is now split evenly between liberals and conservatives.
“With a 4-4 court they are going to be very reticent (to intervene), whatever the topic,” said Rick Hasen, an election law expert at University of California, Irvine School of Law.
The vote of moderate liberal Justice Stephen Breyer could be key. Last month, he cast the deciding vote on a case involving a transgender student wanting to use the boys' restroom at school. Saying he did so as a courtesy to his colleagues, Breyer voted to block a lower court decision in the student's favor. This led some legal experts to say Breyer could vote this way again.
In 2014, the high court let some parts of the North Carolina law take effect for that year’s election. It acted similarly on a Texas voter identification law. Breyer did not publicly dissent in either case, unlike some of his liberal colleagues.
Opponents of the North Carolina law say the state's argument about precipitous disruption of election law is weak, arguing that the 4th Circuit ruling left plenty of time for election workers to train on operating without voter ID in place.
Allison Riggs, an attorney for the Southern Coalition for Social Justice, a civil rights group that challenged the law, also noted that the state waited 17 days to file its Supreme Court application.
The North Carolina law, which also limited early voting and prevented residents from registering and voting on the same day, was enacted in 2013.
Whatever the high court does is likely to signal how it would act in any other voting controversies before the election.
In recent weeks, courts have handed wins to voting rights advocates in several states, including Wisconsin and Texas. Some of those disputes could also reach the high court before the election.
North Carolina's application does not seek to reinstate all elements of the law prior to the election, meaning some provisions, including a ban on same-day registration, will not be in effect whatever the high court does.