Legislative leaders support elections board’s arguments in federal voter ID fight

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  • Top legislative leaders are supporting the North Carolina State Board of Elections' 2021 motion for summary judgment in a federal lawsuit challenging voter ID.
  • The move is designed to ensure that lawmakers can participate in any appeals of a decision granting summary judgment in the case.
  • Lawmakers joined the case in 2022 after an 8-1 decision from the US Supreme Court. District Judge Loretta Biggs and the 4th US Circuit Court of Appeals had blocked lawmakers from defending the ID law in federal court.
  • Biggs has scheduled a May 6 bench trial in the case, now known as NC State Conference of the NAACP v. Hirsch.

Lawyers for North Carolina’s top legislative leaders are supporting arguments from the State Board of Elections in a federal lawsuit challenging the state’s voter identification law. The move is designed to ensure that lawmakers could participate in any appeals.

Voter ID is required for the final days of early voting this week and for the March 5 primary. It’s possible that the federal suit could affect voter ID for the general election in November.

A motion filed Monday in US District Court asks District Judge Loretta Biggs to allow top Republican lawmakers “to join and adopt” the State Board of Elections’ October 2021 motion for summary judgment in the case.

“Legislative Defendants now file this motion to join the State Board’s motion to ensure that they have full rights to defend the judgment on appeal if this Court grants the pending summary judgment motion,” lawmakers’ lawyers wrote in their latest court filing. “Legislative Defendants could not have filed their own motion for summary judgment because they were not yet parties when the motion was filed.”

State lawmakers joined the case in 2022, after the US Supreme Court confirmed their right to defend the voter ID law.

Earlier this month, Biggs scheduled a May 6  bench trial in the more than five-year-old lawsuit challenging North Carolina’s voter identification law.

Biggs offered notice of the May trial on the same day that she rejected voter ID critics’ request to reopen discovery in the case. She affirmed a magistrate judge’s decision against reopening discovery, which could have led to new requests for documents and interviews in preparation for a trial.

Plaintiffs were scheduled to argue before the magistrate judge Tuesday that the State Board of Elections is required to turn over additional information as part of earlier discovery agreements.

Biggs’ decision on a trial date arrived nearly three months after she held a hearing in the case, now known as NC State Conference of the NAACP v. Hirsch. At that time, ID opponents asked Biggs to schedule a February trial. Legislative leaders and the State Board of Elections opposed the request. A February trial could have affected the use of voter ID in the March 5 primary.

The May 6 trial date could impact voter ID for the November general election. Because Biggs announced a “bench” trial, she will conduct the proceedings without a jury.

Magistrate Judge Patrick Auld’s Sept. 12 order denied the plaintiffs’ request to reopen discovery in the case. Auld’s order questioned whether the plaintiffs had acted “in good faith” when seeking additional documents and interviews related to voter ID.

The federal trial had been scheduled twice before — in January 2021 and January 2022. In both cases, appeals delayed the case.

A stay issued in December 2021 placed the case in limbo. Plaintiffs challenging the ID law returned to federal court last year after the state Supreme Court’s April 2023 ruling allowed the ID requirement to move forward.

A 5-2 decision from the Republican-led state high court overturned a December 2022 ruling from the same court. Democrats had held a 4-3 Democratic majority in December. Both rulings involved party-line votes from the justices.

Lawmakers approved the 2018 voter ID law weeks after NC voters enshrined an ID requirement in the state constitution. That amendment has faced its own legal challenge in state courts. A case targeting the amendment sits now with a three-judge Superior Court panel. The voter ID law can stand or fall legally regardless of the case challenging the state constitutional amendment.

Forward Justice filed the federal suit in December 2018 on behalf of the state NAACP and local NAACP chapters.

A year later, on Dec. 31, 2019, Biggs issued a preliminary injunction blocking the voter ID law from taking effect. In a 60-page opinion, Biggs cited North Carolina’s “sordid history of racial discrimination and voter suppression.”

Parts of the law “were impermissibly motivated, at least in part, by discriminatory intent,” wrote Biggs, appointed to the federal bench by former President Barack Obama.

Nearly one year later, a three-judge 4th US Circuit Court of Appeals panel unanimously reversed Biggs’ decision. Appellate judges determined that the trial court had “abused its discretion” when granting the injunction.

The 4th Circuit judges said Biggs was wrong to factor North Carolina’s earlier 2013 voter ID measure into her decision about the 2018 law.

“The district court here considered the General Assembly’s discriminatory intent in passing the 2013 Omnibus Law to be effectively dispositive of its intent in passing the 2018 Voter-ID Law,” wrote Judge Julius Richardson, an appointee of President Donald Trump. “In doing so, it improperly flipped the burden of proof at the first step of its analysis and failed to give effect to the Supreme Court’s presumption of legislative good faith. These errors fatally infected its finding of discriminatory intent. And when that finding crumbles, the preliminary injunction falls with it.”

Judges Marvin Quattlebaum, a Trump appointee, and Pamela Harris, an Obama appointee, joined Richardson’s opinion.

By the time the 4th Circuit struck down Biggs’ injunction, state courts had moved to block the 2018 voter ID law. The state Supreme Court’s April 2023 decision removed the final state court roadblock against voter ID.

The case already has attracted attention from the nation’s highest court.

Republican legislative leaders asked to intervene in the case to defend the voter ID law. Biggs said no in June 2019. The 4th Circuit also ruled against legislative intervention.

Once the US Supreme Court agreed to hear lawmakers’ arguments for intervention, Biggs issued her stay in December 2021. That order blocked a trial that had been scheduled for January 2022. Biggs put the case on hold pending action from the US Supreme Court “or until further Order of this Court.”

In June 2022, the U.S. Supreme Court ruled, by an 8-1 vote, that Republican legislative leaders would be allowed to intervene in the case. The nation’s highest court determined that Senate Leader Phil Berger, R-Rockingham, and House Speaker Tim Moore, R-Cleveland, should have the opportunity to represent legislative interests in defending the law.