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States Look to the Supreme Court to Save Voter ID Laws

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By Casey C. Sullivan, Esq. on August 17, 2016 10:58 AM

Voter ID laws have been having a tough summer in federal appellate courts. Less than a month ago, the Fifth Circuit struck down Texas's controversial voter ID law, finding that it had a discriminatory effect. Just a few days later, the Fourth Circuit overturned a similar law in North Carolina, in a blistering opinion that condemned the "discriminatory intent" behind the law.

Now, both states are looking for the Supreme Court to intervene. On Monday, North Carolina filed an emergency appeal to save its law before the November elections, while Texas has announced that it will soon petition for cert as well.

North Carolina Seeks a Quick Response

In its emergency application, North Carolina asked the Court to stay the state law's voter ID requirements, restricted early voting, and elimination of preregistration until the state can petition for certiorari. The Fourth Circuit had found that North Carolina's law not only had a discriminatory effect, but that it had discriminatory intent, and criticized the lower court for ignoring "the inextricable link between race and politics in North Carolina."

In their filing, the state, now with former U.S. Solicitor General Paul D. Clement on their legal team, called that decision "the first time in history that a court has invalidated as intentionally discriminatory an election law that has been affirmatively found [by a lower court] to have no discriminatory effect." They argue that the decision impacts not just the Tar Heel State, but all voter ID laws.

Chief Justice Roberts has given the challengers in the case until next Thursday to respond. But, as Lawrence Hurley notes for Reuters, the Court "rarely grants such emergency requests," and may be less inclined to do so now, given the lack of a ninth justice.

Texas Takes a Slower Road

Yesterday, Texas announced that it would be joining North Carolina on the road to the Supreme Court, but taking a slower route. The state's attorney general, Ken Paxton, announced that his office would file an appeal to the Supreme Court in the near future, to "protect the integrity of voting in the state," the Dallas Morning News reports.

Paxton's spokesman declined to specify whether the state would seek an emergency intervention or simply file a regular cert petition. But the state is almost certain to go with plain-ole cert, as Rick Hanson notes on the Election Law Blog, as Texas's delay in filing would generally preclude an emergency petition.

That means that Texas's battle over the law could move slowly, something the state already seems to acknowledge. Following the Fifth Circuit's ruling, the state agreed to soften the laws restrictions, removing the bar on voting without a photo ID and spending millions to educate voters about the change.

But while Texas and North Carolina might be closest to Supreme Court review, they're not alone. Just as their voter ID laws were being struck down, state and federal district courts tossed out restrictive voting laws in Kansas, Ohio, North Dakota, and Wisconsin.

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