- Top North Carolina legislative leaders object to voter identification critics conducting new discovery in a federal lawsuit. The State Board of Elections also objects to additional discovery.
- Senate Leader Phil Berger and House Speaker Tim Moore warn that reopening the fact-gathering process would extend the case beyond the 2024 election cycle.
- A federal judge already has decided that ID critics will not be allowed to seek additional information from legislators. The judge will decide in the weeks ahead whether ID opponents will be able to collect more documents and other information from the State Board of Elections.
- The State Board of Elections argued that voter ID critics failed to prove the "excusable neglect" necessary to extend discovery in the case.
- Voter ID is in effect for municipal elections in North Carolina this year.
Top Republican state lawmakers urge a federal court not to reopen discovery in a lawsuit challenging North Carolina’s voter identification law. Legislative leaders warn that additional discovery could delay resolution of the lawsuit until after the 2024 election.
The State Board of Elections also objects to new discovery in the lawsuit.
North Carolina’s Supreme Court upheld the state’s 2018 voter ID law in April. Election officials will ask voters to produce a photo ID when they cast ballots in this year’s municipal elections.
But ID critics continue to challenge the law in the federal court system. The critics submitted a plan on Aug. 2 for conducting additional discovery. Discovery involves the collection of documents and interviews that help lawyers prepare for a trial.
“Legislative Defendants oppose the overall attempt by Plaintiffs selectively to reopen discovery in an apparent bid to expand upon the evidentiary record that was settled years ago,” according to a document legislative leaders filed Wednesday in U.S. District Court.
Lawmakers reminded the court that ID critics attempted to shut the General Assembly out of the federal lawsuit. An 8-1 ruling from the US Supreme Court in June 2022 enabled Senate Leader Phil Berger, R-Rockingham, and House Speaker Tim Moore, R-Cleveland, to take part in the case.
“Legislative Defendants, at the insistence of Plaintiffs, were foreclosed from participation in this matter and had no opportunity to engage in discovery, take any depositions, or submit any rebuttal expert reports or other rebuttal evidence in response to the record created by Plaintiffs,” legislators’ lawyers wrote. “Reopening discovery just for Plaintiffs under these circumstances would be inequitable and highly prejudicial.”
The document also references the potential impact on future elections. “Legislative Defendants further oppose Plaintiffs’ efforts to reopen discovery because doing so would almost certainly ensure there would be no final resolution of the issues in this case until after the 2024 election-cycle — a delay that is neither warranted nor necessary.”
Discovery in the federal case ended in June 2020. At the time, ID critics and the State Board of Elections were preparing for a trial in January 2021. The trial faced a delay as lawmakers sought to intervene in the case.
A stay issued in December 2021 placed the case in limbo. Plaintiffs challenging the ID law returned to federal court this year after the state Supreme Court’s April ruling allowed the ID requirement to move forward.
US Magistrate Judge Patrick Auld determined during a July 26 hearing that ID critics would not be allowed to request additional information or conduct interviews with lawmakers. Auld asked voter ID opponents for more information about their plans for seeking additional information from state elections officials.
ID critics face an Aug. 23 deadline to reply to concerns from state lawmakers and elections officials. Auld has not indicated when he will decide how the case will proceed.
Berger and Moore hope Auld will decide that the case should move forward based on discovery conducted by June 2020. “It would be entirely inequitable to Legislative Defendants to allow Plaintiffs to alter the existing evidentiary record and obtain and introduce new evidence, when Legislative Defendants, at the insistence of Plaintiffs, had no opportunity to conduct discovery, depose Plaintiffs’ witnesses, or submit rebuttal expert reports of their own,” legislators’ lawyers wrote.
“Further, this is a situation entirely of Plaintiffs’ own making,” Berger and Moore’s legal team added. “While Plaintiffs attempt to excuse their neglect by pointing to the fact that this case was stayed pending resolution of the Legislative Defendants’ intervention motion, Plaintiffs’ decision to not identify experts and submit expert reports … by the agreed April 15, 2020, deadline predates the order staying this case.”
Lawmakers emphasized the prospect of a lengthy court proceeding. “Legislative Defendants are willing to stand on the existing preliminary injunction record and to proceed with obtaining a decision on the pending summary judgment papers to bring an end to this litigation,” Berger and Moore’s lawyers wrote. “Plaintiffs, who had a full and complete opportunity to obtain discovery and develop the existing record and who decried the prejudice that would result from any delay in a resolution, are ironically the ones asking the Court to proceed down a path destined to create a substantial delay.”
“[I]f summary judgment is not granted, it is almost inevitable that reopening discovery now will lead to a trial only after the 2024 election-cycle in order to have sufficient time to allow for equitable discovery, avoid voter confusion, and not violate the teachings of Purcell,” lawmakers’ lawyers warned. “This delay is entirely avoidable by proceeding on the record as it existed at the preliminary injunction stage and as it stood when discovery closed.”
Purcell is the 2006 US Supreme Court precedent calling on federal judges not to issue decisions “that could change election rules on the eve of an election.”
“If Legislative Defendants, who have had no opportunity for discovery, are willing to proceed with the current evidentiary record, then Plaintiffs, who have claimed for years that they want this case resolved expeditiously and who have had every discovery opportunity, on a schedule they agreed to, have no basis for seeking a different result,” Berger and Moore’s lawyers concluded.
In a separate court filing Wednesday, the State Board of Elections explained its objections to reopening discovery in the case.
“Plaintiffs have not filed a motion seeking an extension of the discovery period, but that is effectively what they seek with this request,” the elections board’s lawyers wrote. “Therefore,
the State Board respectfully requests that this motion be treated as a motion to extend the
discovery deadline after the time has expired pursuant to Rule 6(b)(1)(B). Because Plaintiffs have failed to demonstrate ‘excusable neglect,’ as Rule 6(b)(1)(B) requires, the motion should be denied.”
“State Board Defendants will be prejudiced by Plaintiffs’ request to reopen discovery,” according to the document. “When the Court stayed this case on December 30, 2021, it noted that the risk of prejudice to the litigants was lessened because ‘[s]taying the case [would] not reopen discovery, require additional litigation, or require the parties to change litigation
strategies.'”
“Now, however, Plaintiffs seek to use the fact that this case has been on hold for twenty months as a basis for reopening discovery, a strategy that will likely produce the precise consequences that this Court was specifically trying to avoid,” the elections board’s brief continued. “Plaintiffs have served State Board Defendants with numerous new discovery
demands, most of which are objectionable and all of which will have the effect of setting
back this litigation by months, possibly longer.”
Editor’s note: This article was updated to include the State Board of Elections’ latest court filing in the federal voter ID lawsuit.