As reported, and just in time for tonight’s U.S. Senate debate between state speaker Thom Tillis and U.S. Senator Kay Hagan, the speaker and his counterpart in the state senate President Phil Berger have moved to intervene in two of the lawsuits challenging North Carolina’s ban on same-sex marriage.

The brief filed in support of their motion is here.


Voter ID

There will be no same-day registration and out-of-precinct provisional ballots will not be counted during the upcoming election, as the U.S. Supreme Court has stayed the Fourth Circuit order reinstating those voting provisions.

Justice Ruth Bader Ginsburg, joined by Justice Sonia Sotomayor, dissented from the court’s opinion:

The Court of Appeals determined that at least two of the measures—elimination of same-day registration and termination of out-of-precinct voting—risked significantly reducing opportunities for black voters to exercise the franchise in violation of §2 of the Voting Rights Act. I would not displace that record-based reasoned judgment.

The court’s order is here.

As Justin Levitt notes at the Election Law Blog, “The order isn’t a permanent reversal — it’s a stay awaiting the disposition of a petition for certiorari, if one is filed. But it’s enough to put the state’s law back in effect this November.”


Nuns tour 4It’s now been three days since the U.S. Supreme Court received the briefing it requested from the parties in the state’s voting rights challenge. And while attorneys have continued to advise the justices on activity here, there’s been no ruling from the high court on the state’s emergency application.

What’s going on?

Election law expert Rick Hasen lays out a few scenarios here.

1. Someone is dissenting, or at least writing something to explain the decision.  In the Ohio case, issued last week, the vote was 5-4 but there was no explanation from either the (conservative) majority or the (liberal) dissenters. Someone may want to say something here, either objecting to or explaining what the Court is doing.

2. The Court decided it wants more information and decided to wait. Today the trial court held a status hearing in the case and, according to a just-filed letter from NC challengers, the state said it would be easy to implement the 4th Circuit’s order. The challengers promise a transcript and no doubt NC will object to this characterization.

3. The Court wants to decide the North Carolina and Wisconsin case together, or perhaps a dissenter wants to reference a potential inconsistent treatment of the Purcell delay issue in the two cases. That would mean waiting until the further briefing came in in the Wisconsin case.


Nuns tour 2Contrary to arguments it made at various stages of the voting rights cases here, the state yesterday told U. S. District Judge Thomas Schroeder that implementing the Fourth Circuit’s order restoring same day registration and out-of-precinct voting would be “simple” — according to this letter to the nation’s high court sent by attorneys for the voting law’s challengers.

The representation came as the parties awaited a decision from the U.S. Supreme Court on the state’s request that the appeals court order be stayed for the upcoming election, based in part upon claims that restoring same-day registration and out-of-precinct voting would be burdensome.

Here’s an excerpt of the letter recapping a status conference held by Judge Schroeder yesterday:

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UPDATE:  Last night the state submitted a response letter to the Court, saying that although it would have always had to give out-of-precinct voters provisional ballots, it would now have the additional burden of having to count them. The state also said that administering same day registration manually, as it would have to do at this late date under the Fourth Circuit order, was a task election officials had never had to undertake before.  Read the full letter here.



In a 2-1 decision, a federal court in Virginia today rejected part of that state’s congressional map, saying that it amounted to an impermissible racial gerrymander.

Here’s election law expert Rick Hasen on the decision:

The majority ruled that the redistricting involving a majority-minority district violated the equal protection clause as an unconstitutional racial gerrymander (a Shaw v. Reno type claim) because race was the predominant factor in redistricting. The state had defended its packing of minority voters into fewer districts to comply with Section 5 of the Voting Rights Act but the majority did not buy it. From the majority opinion:

For the reasons that follow, we find that Plaintiffs have shown race predominated. We find that the Third Congressional District cannot survive review under the exacting standard of strict scrutiny. While compliance with Section 5 was a compelling interest when the legislature acted, the redistricting plan was not narrowly tailored to further that interest. Accordingly, we are compelled to hold that the challenged Third Congressional District violates the Equal Protection Clause of the Fourteenth Amendment.

The dissenting judge believed that political considerations, not race, predominated in the redistricting.

What happens next? As Think Progress notes, any new redistricting will have to be signed by the new Democratic governor.

If Virginia does appeal to the Supreme Court, I expect the case will be held for the Alabama redistricting cases, which raise virtually the same issue.

Read the court’s decision here.