Battles over voting rights are heating up in states that could play a critical role in the November election.
The pressure is on to resolve key issues in a timely manner as courts are often reluctant to make legal changes too close to Election Day.
“It’s very important not to disrupt the machinery and the administration of the voting process,” says Edward Foley of the Moritz College of Law at the Ohio State University. “Judicial rulings too soon to the election can be disruptive, and in the past the Supreme Court has made it very clear that it doesn’t want that disruption.”
Here’s a look at what’s unfolding in some key 2016 battlegrounds:
North Carolina
In the coming days, Supreme Court justices will rule on an emergency petition filed by North Carolina asking the court to allow provisions of the state’s omnibus 2013 election law to remain in effect. The law boosts voter ID requirements, restricts early voting days and eliminates same-day registration.
Challengers include civil rights groups and the Department of Justice that won a major victory in July when a federal appeals court ruled the law had been enacted with a racially discriminatory intent.
Furious with that ruling, lawyers for the state have filed a petition with the Supreme Court asking it to freeze parts of the appeals court opinion now so as not to disrupt the election.
In court papers, lead lawyer Paul Clement blasts the opinion as “extraordinary.”
“Mere months before a general presidential election, the Fourth Circuit has invalidated several provisions of North Carolina election law as intentionally discriminatory even though the court did not disturb the District Courts’ extensive and exhaustive factual findings that those provisions will not actually have a discriminatory impact on minority voters,” Clement wrote.
The Supreme Court’s response to the emergency petition in the case could send a signal to the lower courts currently considering similar challenges to laws passed by Republican-led legislatures and challenged by civil rights groups.
North Carolina’s bid will be made more difficult by the fact that there are currently only eight justices on the bench. The late Justice Antonin Scalia might well have voted in the state’s favor, but as things stand, the court could end up deadlocked in a 4-4 tie which would leave the lower court ruling intact.
Parties on both sides argue that their position does the most to maintain the status quo until courts have the time to rule on the merits of the case.
In his brief, Clement says, for example, that while he thinks the entire appeals court opinion should be put on hold, he is only asking for relief for those parts he argues would alter the status quo. The Voter ID provision, for example, was used in the primary.
“North Carolina should not be forced to scramble mere months before the general election to rejigger settled election plans at the Fourth Circuit’s command,” Clement wrote.
Challengers to the law say that the appeals court ruling came down in plenty of time for the state to make the necessary adjustments to prevent confusion.
Allison Riggs, a lawyer for the plaintiffs in the case, says that since that ruling, North Carolina has already made adjustments and trained county officials on how to run the election in accordance with the opinion.
“The only scrambling that would occur is if the Supreme Court put the lower court opinion on hold, ” Riggs said.
Wisconsin
Litigation is also percolating in Wisconsin concerning challenges to the state’s election laws passed by GOP-led legislature.
Just this week, a federal appeals court denied a request to freeze a lower court opinion that struck down parts of Wisconsin’s election laws including a provision that cutback early voting hours.
“What this means,” election law expert Rick Hasen wrote on his election law blog, is that “Wisconsin needs to go ahead and let localities continue to set voting hours and otherwise implement the judge’s order.”
Dale Ho of the ACLU praised the decision. “The court’s ruling will ensure that early voting opportunities, which the state had tried to eliminate, will remain available in November which means that more people will be able to participate.”
After the decision, a spokesman for Attorney General Brad Schimel announced that the state would not ask the Supreme Court for a stay of the ruling.
But the full panel of the 7th Circuit Court of Appeals is considering a separate request concerning the state’s voter ID law. The provision was softened by a district court judge, but a three-judge panel of the appeals court issued a stay of that ruling. Now challengers are hoping the full court will lift the stay.
“The big question is still out there, and that is whether or not this voter ID law which if left in place will undoubtedly prevent some people from voting remains on the books for November,” said Ho.
Ohio’s ‘Golden Week’
On Tuesday, a federal appeals court ruled that Ohio does not have to reinstate Golden Week — the week-long period in the state where in previous cycles voters could both register and cast an early ballot at the same time.
The ruling was a big blow for Democrats who have relied on Golden Week in the past. In May, a federal district court found that the elimination of Golden Week imposed a “modest burden” on the right to vote for African Americans and said the state’s justifications for the law “fail to outweigh that burden.”
In-person early voting will still be available for 29 days.
“Bad for voters,” Marc Elias, the general counsel to Hillary for America — which is involved in the case, tweeted. “Bad for voting rights.”
Ohio’s Secretary of State Jon Husted defended the state law — Senate Bill 238 — that cut back early in-person voting from 35 days to 29 days. Tuesday’s 2-1 ruling by a three-judge panel of the United States Court of Appeals for the Sixth Circuit court reverses the district court opinion.
The appeals court held that Ohio was a “national leader” when it comes to early voting opportunities and that the law that cut back early in person voting opportunities by six days was still “really quite generous.”
The Democratic Party of Ohio could appeal the decision to a larger panel of judges on the Appeals Court or the Supreme Court.