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Analysis: Voting Rights Hang in the Balance This November

The next president will appoint a justice who can tip the scales—but which way?
In this June 20, 2016, photo, The Supreme Court is seen in Washington. The eight-justice court has eight cases to resolve in the waning days of a trying and mournful term since the death of Justice Antonin Scalia in February.Alex Brandon / AP

Wednesday’s Supreme Court deadlock ensured that North Carolina’s restrictive voting law won’t be in force for the November election. But it also underlined that the court’s four conservatives appear wedded to a strikingly limited approach to protecting access to the ballot. And it made clearer than ever that the future of voting rights in America will likely be determined by the court’s ninth justice—and therefore by the winner of the presidential election.

In a 4-4 ruling that included no explanation, the high court rejected North Carolina’s bid to reinstate its photo ID requirement, its cuts to early voting, and its elimination of a popular pre-registration program for high-school students. All those provisions of the state’s voting law, and others, were blocked by a federal appeals court panel in July.

Related: Courts Will Rule Whether Thousands of Kansas Residents Can Vote

The decision wasn’t a surprise. More notable was that three of the court’s conservatives—Chief Justice John Roberts, and Justices Anthony Kennedy and Samuel Alito—would have granted North Carolina’s request to put the ID requirement and the early voting cuts back into effect. The fourth conservative, Justice Clarence Thomas, would have done so for all three provisions at issue.

The conservatives would have ruled for North Carolina despite what many observers saw as a weak case. The state claimed an emergency required the justices to act, but waited over two weeks to ask them to intervene.

Much more significant, the appeals court panel found that the law, passed in 2013 weeks after the Supreme Court weakened the Voting Rights Act (VRA) in Shelby County v. Holder, intentionally discriminated against African-Americans—a stronger finding even than was needed to block it.

Republican lawmakers, the court explained, asked for data by race on rates of ID ownership, as well as on various forms of voting—early voting, same-day voter registration, out-of-precinct voting, and absentee voting. That data showed that blacks were more likely than whites to lack ID, and to use all those forms of voting except absentee voting, which was used more by whites. Lawmakers duly imposed an ID requirement, and eliminated or cut all those forms of voting except absentee voting. The law’s provisions “target African-Americans with almost surgical precision,” the court found.

Related: Supreme Court Won't Reinstate Strict NC Voting Law

To many observers, it would be difficult to find a clearer example of a racially discriminatory voting law. Perhaps only an explicit statement of racism or racial intent—something few elected officials are foolish enough to voice publicly or even write in a private email—would meet the conservative justices’ sky-high bar for evidence of race bias in voting.

“If this isn’t enough to show intentional discrimination, what would be?” asked Erwin Chemerinsky, a constitutional law professor at the University of California, Irvine.

The conservatives’ stance isn’t new. As a young lawyer in the Ronald Reagan administration, Roberts argued for a narrow reading of the Voting Rights Act’s protections, arguing that a broader approach would “provide a basis for the most intrusive interference imaginable by federal courts into state and local processes." Lawyers and activists on the right have for decades been pushing courts to limit the scope of the law.

All four conservatives joined Crawford v. Marion County, the 2008 case that gave a green light to voter ID laws, saying, essentially, that there was no need for Indiana to show evidence of voter fraud to justify its ID measure. And they all signed on to the Shelby ruling weakening the VRA, in which Roberts declared that the South had made so much progress in fighting racial discrimination that it should no longer be singled out for special treatment.

Related: Analysis: New Wisconsin Voter ID Rules Expose Law's Real Aim

Still, that the four conservatives appear to remain in lockstep on voting issues will come as a major disappointment to voting rights advocates, who say there’s a need for the court to clearly spell out when strict voting laws violate the VRA. Some had lately begun to see a chance that Justice Kennedy might be open to joining the court’s four liberals on a ruling strengthening voting rights—especially after he wrote an opinion in a fair housing case that outlined a relatively broad understanding of what counts as racial discrimination. Public about-faces on the Crawford voter ID case by Judge Richard Posner, an influential conservative on the 7th Circuit U.S. Court of Appeals and by the former Supreme Court Justice John Paul Stevens, had further raised hopes that Kennedy might have a similar change of heart.

Wednesday’s ruling suggests that’s not likely, election law experts said.

“If Kennedy and the Chief are going to be in play in future voting wars cases, this stay order does not give an inkling of that,” the election law professor Rick Hasen wrote online Wednesday.

Related: New Voting Laws in the South Could Affect Millions of African Americans

Ultimately, the ruling highlights the enormous stakes of the presidential election for voting rights. A ninth justice appointed by Hillary Clinton would likely create a majority in favor of striking down or blocking laws like North Carolina’s, or the strict voter ID laws passed by Texas or Wisconsin, either of which could yet come before the court. A justice appointed by Donald Trump could be expected to instead create a majority that gives states a level of freedom to impose voting restrictions they haven’t enjoyed in over half a century, perhaps even turning the Voting Rights Act into little more than a dead letter.

“This puts an exclamation point on the urgent need to fill the vacancy on the Supreme Court,” said Daniel Tokaji, an election law professor at Ohio State University. “The right to vote hangs in the balance.”