Appeals Court blocks UNC digital ID as voter ID for 2024

The North Carolina Court of Appeals has ruled that the University of North Carolina at Chapel Hill’s digital identification cannot be used as voter ID in North Carolina’s election this fall.

A unanimous three-judge appellate panel issued on Friday afternoon a temporary injunction and an order called a writ of supersedeas. The writ blocks a lower court order that would have allowed state election officials to count the digital UNC ID as a valid voter ID.

Appeals Court rules will keep the names of the three participating judges secret for 90 days.

“The State Board of Elections is hereby enjoined from accepting the University of North Carolina – Chapel Hill Mobile One Card, or any other ‘image of a photo ID, either as a photocopy or a photo on a mobile device’ that is prohibited by the State Board of Election’s Numbered Memo 2023-03, for the purpose of casting a ballot in the November 2024 general election,” according to the order.

The Republican National Committee and North Carolina Republican Party filed a petition on Sept. 20 seeking the injunction and writ of supersedeas to block an order from Wake County Superior Court Judge Keith Gregory.

The State Board of Elections and Democratic National Committee opposed the GOP groups’ request.

Gregory ruled against Republicans organizations on Sept. 19, rejecting the request for a temporary restraining order. He upheld the State Board of Elections’ decision to allow the UNC digital ID to serve as voter ID.

“The UNC student or employee electronic photo identification is not one of the forms of photo identification that a registered voter may present when voting in person under N.C. Gen. Stat. § 163-166.16(a) and is far less secure than the forms of permissible photo identification listed in the statute,” wrote lawyer Ellis Boyle, who represents the Republican groups. “The UNC student and employee electronic photo identification can be easily manipulated using publicly available mobile applications and is susceptible to being used to commit voter fraud.”

“NCSBE has violated N.C. Gen. Stat. §§ 163-166.16, 163-166.17, and 163-166.18 by permitting the use of the UNC student or employee electronic photo identification for in-person voting,” Boyle added. “Plaintiffs, through this action, seek to enjoin NCSBE from their violations of North Carolina’s election laws and to require NCSBE to take immediate action to rectify their violations.”

“Given the looming start of early in-person voting on 17 October 2024 (merely weeks away), and the need to train poll workers and other election officials on applicable law on voter identification before early in-person voting starts, Plaintiffs file this Petition to preserve the status quo that existed during the 2024 primary election and for more than a year – i.e., to halt NCSBE from further communicating to voters and election workers that the electronic UNC ID is an acceptable form of voter photo identification and to halt voters from using the electronic UNC ID to confirm their identity while voting in person – until this appeal can be heard,” the Republicans’ petition added.

The DNC filed paperwork responding to Republicans’ appeal. “Plaintiffs ask this Court to prohibit thousands of registered voters from using their approved digital UNC-Chapel Hill student and employee identification cards at the polls, despite the trial court finding that Plaintiffs had not met the requisite legal standards for a TRO,” Democratic lawyers wrote. “Plaintiffs’ request for relief from this Court fails for the same reasons as their request for a TRO below. As the trial court found: (1) ‘Plaintiffs’ claim has no merit,’ and (2) the balance of equities weighs against the relief they seek, which ‘is likely to result in significant confusion among students and employees at UNC.’”

Gregory issued his ruling after roughly an hour of arguments from lawyers representing the Republican National Committee, the state elections board, and two sets of intervenors: the Democratic National Committee and the Affirmative Action Coalition. The coalition works with lawyers from Democratic operative Marc Elias’ law firm.

Gregory compared UNC students who would be unable to vote with a digital ID to convicted felons who have completed prison sentences but can’t vote in North Carolina because they have yet to pay all court costs.

“Am I supposed to make the assumption that these kids at Chapel Hill and these employees are trying to commit fraud, No. 1, or for some reason that they come to the voting booth with that intent? I don’t think so, but based on what’s in front of me as far as the statute, where does it say that they can’t use these cards? Where does it say that? It doesn’t,” Gregory said from the bench.

“Now, I’m not willing to put them in the same box with felons who haven’t paid their court costs,” he added.

Boyle argued to Gregory that the digital ID ran afoul of state law requiring a voter ID to be a card. “The law is clear,” Boyle said. “’Cards’ in that statute means something. It means a document.”

Boyle pointed to UNC rules showing that students needed a valid form of photo identification to obtain the digital ID in the first place. He also offered an affidavit from a man who manipulated a UNC digital ID to create a fake ID that could be used to vote.

State Special Deputy Attorney General Mary Carla Babb, representing the elections board, responded that Republican plaintiffs invented a “tangibility requirement” for the state’s voter ID.

“The General Assembly intended this to be a broad, wide law,” Babb said. She argued that the UNC ID, called Mobile One, met all criteria to win state elections board approval as a valid ID.

Lawyer Jim Phillips, representing the DNC, accused his Republican counterparts of trying to create “confusion and uncertainty” ahead of the election. “They have targeted groups they don’t want to go to the polls,” Phillips said.

Phillips accused GOP groups of “fearmongering.”

The Affirmative Action Coalition’s lawyer, Narendra Ghosh, also accused Republicans of trying to create “confusion.”

“This lawsuit is an eleventh-hour bid to confuse and potentially disenfranchise up to 40,000 individuals who attend or work at North Carolina’s flagship state university, just weeks before they head to the polls for early voting,” DNC lawyers wrote in a court filing. “Plaintiffs ask the Court to punish students and employees at the University of North Carolina at Hill (‘UNC’) for using the digital identification cards that UNC issued and encouraged them to use as voter identification, on the baseless theory that North Carolina law implicitly prohibits digital voter identification cards.”

The State Board of Elections filed a brief opposing Republicans’ request for a restraining order.

“Plaintiffs claim that the State Board’s decision to authorize the Mobile One Card as an
acceptable form of photo identification violated state law,” the state board’s lawyers wrote. “But Plaintiffs are incorrect. In fact, the opposite is true: State law requires the State Board to ‘approve the use of student identification cards issued by a constituent institution of The University of North Carolina’ and ’employee identification cards issued by a state or local government entity,’ so long as certain criteria are met. UNC and the Mobile One Card met each of these criteria. Thus, under state law, the State Board was duty bound to approve the Mobile One Card as an acceptable form of photo identification.”

Republican groups filed suit on Sept. 12. It was their fourth suit against the state elections board in three weeks.

The August elections board vote approving the digital UNC ID was along party lines, with Democratic members Alan Hirsch, Siobhan Millen, and Jeff Carmon voting in favor of the measure. Republican members Kevin Lewis and Stacy “Four” Eggers IV voted against it.