Ian Millhiser, the extremely knowledgeable Supreme Court observer/analyst at the Center for American Progress, has some advice for the lawyers representing Gov. Pat McCrory and the other defenders of the state’s voter suppression law that the Fourth Circuit Court of Appeals struck down a couple of weeks ago. This is from his new post: “Is North Carolina Trying To Lose One Of The Biggest Voting Rights Cases In The Nation? They aren’t good at this”:
“Here’s some free advice to young lawyers just starting our their careers: if your client loses a case, and you want the Supreme Court to review it, you might want to actually bring the case to the justices’ attention.
The state of North Carolina appears not to have learned this lesson.”
Millhiser goes on to explain how the state has yet to actually seek a stay of the Fourth Circuit ruling from the Supreme Court, 17 days after the decision:
“So we’re now 17 days out from the appeals court’s decision striking down much of the voter suppression law, and the state still hasn’t sought a stay from the Supreme Court. That, alone, is an ill-advised practice for lawyers in this and similar cases. The entire point of a stay is that a party believes that a lower court’s order is so untenable that it cannot remain in effect until after it has been reviewed by a higher authority. It’s tough to make that claim when you can’t even be bothered to file your stay request in a timely manner.
This principle is especially true in a voting rights case. At least before conservatives lost their majority on the Supreme Court, the justices were reluctant to disturb a state’s election law as an election drew nigh.
…The state’s delay, moreover, is only the latest blunder by a state that, at times, has seemed to be trying to lose a court challenge to its voter suppression law….
It’s as if these lawmakers were trying to get caught. After more than a decade subject to a conservative Roberts Court majority, voting rights are weaker today than they’ve been at any point since Jim Crow. But even some of the Court’s conservative members are likely to draw the line at a law that intentionally targets black voters. Slipping a voter suppression law past a judge like Chief Justice John Roberts is not hard, but North Carolina even managed to defy Roberts’ simplistic adage that ‘the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.’
It should be noted that the four conservative justices have shown a great deal of skepticism towards voting rights cases in the past. And a recent vote cast by left-of-center Justice Stephen Breyer at least raises a small doubt about whether he is as reliable a liberal vote as voting rights advocates hope he will be in this case. The smart money is on North Carolina losing this case, but nothing is a sure thing until it is over.
Nevertheless, the state appears to be doing everything in its power to eliminate whatever small chance it once had of prevailing.”