On Monday, the U.S. Supreme Court refused to take up an appeal filed by the North Carolina Legislature in response to the three-judge panel striking down its state voter ID law and other election reforms.
No one should read anything substantive into this.
As Chief Justice John Roberts wrote Monday in a two-page supplement to the court’s refusal to accept the case for review, “[g]iven the blizzard of filings over who is and who is not authorized to seek review in this Court under North Carolina law, it is important to recall our frequent admonition that ‘[t]he denial of a writ of certiorari imports no expression of opinion upon the merits of the case.’”
In other words, the Supreme Court was not ruling here on whether the 4th U.S. Circuit Court of Appeals’ three-judge panel was correct in its assessment of the North Carolina law. (It wasn’t.)
In fact, the chief justice spends two pages talking about the procedural chaos in the case that seems to be the obvious reason for the court’s refusal.
It was private lawyers hired by the North Carolina Legislature that filed the petition for certiorari on behalf of the state asking for the Supreme Court’s review.
But the handling of the case changed dramatically after the November 2016 election, when a new, Democratic attorney general, Josh Stein, was elected.
Stein filed a motion with the Supreme Court asserting that North Carolina was withdrawing its appeal. However, the private attorneys for the Legislature filed an objection with the court to the request for dismissal.
According to Roberts, the Legislature asserted that “North Carolina law does not authorize the state attorney general to dismiss the petition on behalf of the state and instead expressly permits the assembly to retain private counsel to defend [the law] on behalf of North Carolina.”
The speaker and president pro tempore of the Legislature also “filed a conditional motion to intervene, asking this court to add the General Assembly as a petitioner in the event the court finds that the attorney general may withdraw the petition.”
The brief filed by the Legislature also accused the state attorney general of ethical misconduct, calling it “a politically-motivated attempt to hijack a certiorari petition in a major Voting Rights Act case, in violation of the plain terms of North Carolina law and the canons of professional ethics.”
North Carolina law makes the Legislature the attorney general’s client, and yet the attorney general “has not even consulted with—much less obtained the consent of—the General Assembly” to withdraw the appeal.
Even worse, when the new attorney general was a state senator, according to the brief, he actually “testified at the trial in this case, for the plaintiffs, and against the validity of the very laws the state’s certiorari petition seeks to vindicate.”
The Legislature asserts that Stein violated specific provisions of the North Carolina Rules of Professional Conduct that govern the ethical behavior of lawyers by acting without the consent of his client and by participating as a lawyer in a case where he was a fact witness.
It is indeed disappointing that the erroneous decision of the 4th Circuit will not be overturned, especially given the evidence produced in the case that turnout in the state went up, not down, while the election reforms were in place.
It’s also disappointing particularly in light of a recent audit released by the North Carolina State Board of Elections reporting on hundreds of fraudulent ballots cast in the state.
However, it should be kept in mind that this appellate court decision was an outlier. The three states surrounding North Carolina all have voter ID laws in place that have been upheld in the courts.
Georgia’s law was upheld by the 11th Circuit in 2009, South Carolina’s by the D.C. Circuit in 2013 (a law virtually identical to North Carolina’s voter ID law), and Virginia’s by a different three-judge panel of the same 4th Circuit.
In contrast with Virginia, North Carolina obviously suffered from a bad draw of three judges from the 4th Circuit.
We should not forget that the voter ID laws of other states have also been upheld by the courts, including in Indiana, Kansas, Tennessee, Wisconsin, and Arizona. In fact, the U.S. Supreme Court upheld Indiana’s photo ID requirement in 2008.
The challengers who lost in the 4th Circuit last year when Virginia’s voter ID was upheld very specifically did not appeal that loss to the Supreme Court.
That is an indication that they believe the next time another voter ID case gets to the court—one with a clean procedural history, unlike the North Caroline case—they are likely to lose again.
Thirty-two states require some form of ID in voting, although not all of them require a photo ID. And states are continuing to pass such needed laws. Iowa Gov. Terry Branstad just signed into law a new voter ID law in his state.
State legislators and the public should not allow the 4th Circuit decision to deter them from taking the steps necessary—including commonsense voter ID requirements—to improve the integrity of our elections.
Hans von Spakovsky is an authority on a wide range of issues—including civil rights, civil justice, the First Amendment, immigration, the rule of law and government reform—as a senior legal fellow in The Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies and manager of the think tank’s Election Law Reform Initiative.
Editor's Note: This piece was originally published by The Daily Signal.