By Mitch Kokai
Raleigh, NC – As the U.S. Supreme Court prepares to shine a spotlight on North Carolina’s voter ID dispute, now might be an opportune time for an ID scorecard.
First, let’s look back at the November 2018 election. At that time, the state’s voters approved a voter ID requirement for the N.C. Constitution. Within weeks of the vote, state lawmakers approved a law to implement the new constitutional provision.
Yet more than three years later, there’s still no voter ID in this state. Multiple legal challenges stand in the way of implementing the law.
A federal lawsuit presents one major obstacle. One aspect of that suit has reached the U.S Supreme Court.
In December 2019, a year after lawmakers approved the ID law, state election officials were preparing to implement voter ID for the March 2020 primary election. But U.S. District Judge Loretta Biggs blocked the law. Citing the state’s “sordid history of racial discrimination and voter suppression,” Biggs issued an injunction against voter ID. She planned to hold a trial in the case. It would determine whether the law would stand or fall permanently.
After another year, in December 2020, a unanimous three-judge panel of the 4th U.S. Circuit Court of Appeals overruled Biggs. The panel — with two appointees from then-President Donald Trump and a third from former President Barack Obama — determined that the N.C. law “is more protective of the right to vote” than other ID laws courts have upheld across the country.
While the three-judge federal panel removed Biggs’ injunction against voter ID, they did not throw out the entire case. Moving forward, it was scheduled to proceed to trial on Jan. 24 this year. Now that trial has been delayed.
All parties are waiting to learn what the U.S. Supreme Court says about one portion of the case. The high court will hold oral arguments March 21. Justices will consider whether N.C. legislative leaders should be able to intervene to defend the ID law.
To date, only lawyers from state Attorney General Josh Stein’s office have represented the state in the federal case. Republican lawmakers have argued that Stein, a Democrat, is representing the state elections board’s interests. Unlike lawmakers, Stein is not focusing on putting forward the best defense of voter ID.
With a U.S. Supreme Court ruling expected this summer, we can anticipate a rescheduled federal trial before Biggs.
But the federal case doesn’t tell the entire story. Two other cases now before the N.C. Supreme Court will also affect voter ID’s fate.
The first has no direct impact on the voter ID law. But it will determine whether an ID requirement will remain in the N.C. Constitution. The state Supreme Court heard oral arguments Feb. 14 in N.C. NAACP v. Moore. Challengers in the case contend that the General Assembly, because of “racially gerrymandered” election districts, had no right to place the amendment on the ballot.
Those challengers disregard the 2 million voters (55% of the total) who supported a voter ID constitutional amendment in 2018. If the Supreme Court accepts ID critics’ arguments, the state’s governing document would lose its guarantee of photo voter identification.
Of more immediate impact for voters is a second case in the state’s court system. It’s titled Holmes v. Moore. Like the federal lawsuit, the Holmes case involves a challenge to the 2018 ID law itself.
In July 2019, a three-judge panel of state Superior Court judges initially refused to issue a preliminary injunction blocking the law. In September 2021, after conducting a trial, the same panel split 2-1. The majority threw out the law as racially discriminatory and unconstitutional.
Legislative and state defendants appealed the ruling to the N.C. Court of Appeals. But the ID challengers, who won at the trial-court level, moved to bypass the Appeals Court and take the case straight to the state Supreme Court.
Partisan considerations likely played a role in that maneuver. On the original panel, two Democratic Superior Court judges overruled a Republican colleague. Republican judges outnumber Democrats, 10-5, on the Appeals Court. Democrats outnumber Republicans, 4-3, on the Supreme Court.
Voter ID’s defenders certainly see signs of partisanship. They have accused ID critics of engaging in “forum shopping” as the case has proceeded. “Plaintiffs do not hide the reason they want to press fast-forward — a potential ‘reversal of the trial court’s judgment by the Court of Appeals,’” according to one brief filed in the case.
The state’s highest court agreed March 2 to take up Holmes v. Moore. Both sides are preparing now for written and eventual oral presentations to state Supreme Court justices.
To recap, North Carolina has no voter ID requirement now, thanks to the September 2021 ruling in a state Superior Court. The state Supreme Court will review that ruling. If it stands, the 2018 voter ID law will die. ID supporters would need to start again with new legislation.
Even if the state Supreme Court reverses the trial court and finds that voter ID complies with the N.C. Constitution, federal courts still could intervene. Biggs will eventually hold her trial. A ruling against voter ID in that venue could be appealed again to the 4th Circuit and potentially the U.S. Supreme Court. It’s unclear how long that process would last.
Meanwhile, the state Supreme Court should rule in the months ahead whether the state constitution will continue to maintain its voter ID requirement. A ruling against the amendment could dictate how aggressively lawmakers proceed toward enacting a viable ID law in the future.
Don’t worry if your scorecard looks messy. Photo voter identification faces a complicated, uncertain future in North Carolina.
Mitch Kokai is senior political analyst for the John Locke Foundation.