WASHINGTON — The Supreme Court's refusal to breathe new life into North Carolina's sweeping voter identification law might be just a temporary victory for civil rights groups.
Republican-led states are continuing to enact new voter ID measures and other voting restrictions, and the Supreme Court's newly reconstituted conservative majority, with the addition of Justice Neil Gorsuch, could make the court less likely to invalidate the laws based on claims under the federal Voting Rights Act or the Constitution.
The justices on Monday left in place last summer's ruling by the 4th U.S. Circuit Court of Appeals striking down the law's photo ID requirement to vote in person and other provisions, which the lower court said targeted African-Americans “with almost surgical precision.”
But Chief Justice John Roberts noted that the court's decision to stay out of the case rested on a partisan dispute over who had the authority to present North Carolina's case to the court, not the justices’ views on the substance of the issue.
Indeed, before Gorsuch joined the court, the other eight justices split 4-4 over whether to allow the challenged provisions to remain in effect despite the court ruling striking them down.
In January, when the high court rejected a Texas appeal over its voter ID law, Roberts practically invited Texas Republicans to bring their appeal back to the Supreme Court after lower court consideration of the issue is finished. “The issues will be better suited for certiorari review at that time,” Roberts wrote, using the Latin term for the court's process of deciding whether to hear a case.
Two earlier Supreme Court decisions paved the way for the wave of voter ID laws that are now in place in 32 states, according to the National Conference of State Legislatures.
Roberts was part of a conservative-led decision upholding Indiana's voter ID law in 2008 and he was the author of the court's 5-4 decision in 2013 that gutted a provision of the federal Voting Rights Act that had required North Carolina, Texas and other states, mainly in the South, to get approval before changing laws dealing with elections.
Republicans in North Carolina and Texas moved to enact new voting measures after the Supreme Court ruling. Voters, civil rights groups and the Obama administration quickly filed lawsuits challenging the new laws.
Advocates of requiring voters to show identification at the polls say it is a prudent, painless way to deter voter fraud. Opponents contend that in-person voter fraud has historically not been a problem and that poorer and minority voters, who tend to support Democrats, are more likely to lack driver licenses and other acceptable forms of identification.
Roberts’ and the other conservatives’ track record in voting cases suggests they'll be “quite skeptical of voting rights claims,” said election law specialist Richard Hasen, a law professor at the University of California at Irvine.
“You could certainly see a five-justice majority overturning a case like this,” Hasen said of the North Carolina appeal. He acknowledged that Gorsuch himself has yet to weigh in on the topic.
A conservative defender of the voting laws agreed. “I'd think challengers to voter ID laws would be extremely nervous about any such case coming to the court,” said Hans von Spakovsky, a senior legal fellow at the Heritage Foundation.
Already this year, Arkansas, Iowa and North Dakota have approved voter ID laws, according to the Brennan Center for Justice at New York University. Georgia and Indiana are among states that have added other voting restrictions to their identification laws, the Brennan Center said.
The voter ID issue itself could return to the court in the next year or two in cases from Texas and Wisconsin. The 5th U.S. Circuit Court of Appeals already has ruled that Texas’ law violates the Voting Rights Act, but a broader challenge to the law is pending at the New Orleans-based appeals court.
The 7th U.S. Circuit Court of Appeals appeared inclined to uphold Wisconsin laws requiring voter ID and limiting early voting when it heard arguments in February. Republican Gov. Scott Walker signed the measures into law in 2011.