On August 31, 2016, the Supreme Court denied North Carolina’s request to use part of a voting law that had already been declared unconstitutional. The part would have restored a photo ID requirement, reduced the number of early-voting days from 17 to 10, and ended the practice of pre-registering teenagers so they would not have to worry about enrolling when they turned 18.
Chief Justice John G. Roberts Jr., Justice Anthony M. Kennedy, Justice Clarence Thomas, and Justice Samuel A. Alito Jr. would have granted the use of this law. They were unable to convince the four liberal justices to do the same. Their failure may have been because these measures disproportionately affect one group: black people.
Evidence of that comes from the fact that the only form of photo ID allowed would have been those issued by the DMV. It excludes IDs issued by schools or public assistance programs. Those from the DMV are held by a lot more whites, while the excluded IDs are held mostly by black people.
More evidence comes from the fact that the provisions stem from a law enacted in 2013 in response to the Supreme Court ruling in “Shelby County vs Holder.” It freed certain states, North Carolina included, from the Voting Rights Act requirement of federal approval before changing rules.
Soon after the decision, according to Judge Diana Gribbon Motz, the legislator “…requested data on the use, by race, of a number of voting practices. Upon receipt of the race data, the General Assembly enacted legislation that restricted voting and registration in five different ways, all of which disproportionately affected African-Americans.”
North Carolina, and other states that enact these types of laws, claim they are using them to combat voter fraud. The type of voter fraud photo id protects against, impersonation, has been studied. There have been 31 cases of impersonation in all of the United States since the year 2000. Insistence on laws that combat against it must have another motivation.
Washington Post reporters Robert Barns and Ann E. Marimow say the finding could have prompted the three judges of the U.S. Court of Appeals for the 4th circuit to order North Carolina back under federal supervision in July. They did not because they decided it was enough to block the offensive parts of the law.
Either the Supreme court feels the same, or Justice Ruth Bader Ginsburg, Justice Sonia Sotomayor, Justice Stephen G. Breyer, and Justice Elena Kagan could not secure a fifth vote to support reinstating federal approval of new voting laws. Though supporters of equal access to voting and having a voice scored a victory, there is an essential problem with having eight justices – a split decision is one of them.
Jay Sekulow is the Chief Counsel for the American Center for Law & Justice.