Power

North Carolina Governor and Attorney General Take Steps to Withdraw From Voting Restrictions Lawsuit

“It’s time for North Carolina to stop fighting for this unfair, unconstitutional law and work instead to improve equal access for voters," said Gov. Roy Cooper.

“We need to make it easier for people to exercise their right to vote, not harder, and I will not continue to waste time and money appealing this unconstitutional law,” Gov. Cooper said in a statement. Sara D. Davis/Getty Images

The governor and attorney general of North Carolina have moved toward making it easier for state residents—particularly those of color—to vote, by acting to roll back the oppressive laws implemented by previous Republican leadership.

In July of last year, a unanimous panel of the Fourth Circuit Court of Appeals struck down North Carolina’s voting restriction law, ruling that the Republican-held legislature had enacted it with discriminatory intent to burden Black voters. In a blistering opinion, the Fourth Circuit noted that “neither this legislature—nor, as far as we can tell, any other legislature in the Country—has ever done so much, so fast, to restrict access to the franchise.”

On that basis, the court ruled that the law violated the Voting Rights Act of 1965.

After an unsuccessful effort to convince the U.S. Supreme Court to stay the Fourth Circuit’s ruling, North Carolina officials under Republican Gov. Pat McCrory set about preparing a petition for writ of certiorari asking the Supreme Court to review the Fourth Circuit’s decision.

On December 27, a mere five days before Democratic Gov. Roy Cooper was sworn in to replace McCrory, North Carolina filed the petition. On Tuesday, Cooper and Attorney General Josh Stein announced that the governor’s office and the North Carolina Department of Justice formally withdrew the request for the Supreme Court to review the Fourth Circuit ruling.

In a statement released Tuesday, Cooper and Stein said they “have taken steps to withdraw the state’s petition for a Writ of Certiorari to the U.S. Supreme Court of State of North Carolina v. North Carolina State Conference of the NAACP, the voting restrictions law passed overturned by the Fourth Circuit Court of Appeals last year.”

“This morning, Governor’s General Counsel and Chief Deputy Attorney General jointly sent a letter discharging outside counsel in the case on behalf of the state,” the statement read. (When Gov. McCrory was still in power, he had hired outside counsel to defend North Carolina’s elections law in court.)

“Also today, the Governor’s Office and the NC Department of Justice formally withdrew the State and Governor’s request for the U.S. Supreme Court to review the Fourth Circuit’s decision,” it continued.

Republicans had claimed that their intent in passing North Carolina’s restrictive law was to protect against voter fraud, but the Fourth Circuit didn’t buy it.

In its ruling striking down the law, the Fourth Circuit noted that the Republican-dominated legislature passed the law in 2013 immediately following the U.S. Supreme Court’s ruling in Shelby County v. Holder, which struck a key provision in Section Four of the Voting Rights Act (VRA).

That section sets forth the coverage formula used to determine which jurisdictions must get pre-clearance from the Department of Justice or the District Court for the District of Columbia before making any changes to election laws. Several counties in North Carolina were subject to that pre-clearance.

The day after the Supreme Court issued its ruling in Shelby County, the Republican chairperson of the state Senate Rules Committee announced the North Carolina legislature’s intention to enact an “omnibus” election law, the appeals court noted. Before enacting the law, however, the Republican-dominated legislature requested data on the use, by race, of a number of voting practices.

After receipt of the race data, the North Carolina General Assembly enacted legislation targeting many of those practices, which restricted voting and registration.

For years, North Carolina has been under Republican control and became an incubator for voter suppression tactics. Voting rights advocates argue that the law was intended to disenfranchise Black and Latino voters. Republicans’ counterclaims of voter fraud have fallen flat: Voting fraud has proven exceedingly rare in Republican-led investigations.

Now that the state has a Democratic governor and attorney general, some of those voter suppression tactics may be dead in the water.

Before Tuesday’s announcement, legal experts argued that withdrawing the petition for certiorari would be a simple way to secure voting rights in the state.

As University of California, Irvine Professor Richard L. Hasen recently wrote in Slate:

Under North Carolina law, the governor and attorney general get to control the state’s litigation, even when an agency is involved. Here, the agency involved is the North Carolina Board of Elections, which for now remains headed by a Republican. But state law does not let that board choose outside counsel to represent its interests without approval of the governor or the attorney general. So it looks like nothing would stop Gov. Cooper and AG Stein from simply withdrawing the cert petition, leaving the North Carolina case on the books and denying the Supreme Court a chance to grant review. Even if something prevents withdrawal of the petition, Cooper and Stein could file a letter disagreeing with the earlier position of the state in the cert petition.

Withdrawing the petition is good news for voters in North Carolina.

“We need to make it easier for people to exercise their right to vote, not harder, and I will not continue to waste time and money appealing this unconstitutional law,” Gov. Cooper said in the prepared statement.

“It’s time for North Carolina to stop fighting for this unfair, unconstitutional law and work instead to improve equal access for voters,” he continued.

Other steps need to be taken for the petition to be withdrawn entirely and for the Fourth Circuit’s ruling to stand, but doing so would also be good news for state taxpayers. In a post on Facebook, Attorney General Stein said that plaintiffs in the lawsuit had agreed to waive up to $12 million in legal fees if the petition is dismissed and the litigation ends.