Legislators, NC Justice Department bolster case for voter ID law rehearing

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  • Both the Republican leaders of the N.C. General Assembly and Democratic Attorney General Josh Stein's office have filed briefs with the N.C. Supreme Court defending the state's voter ID law.
  • The state's highest court will rehear a voter ID case on March 15. A December ruling struck down the law.
  • The N.C. Republican Party is asking the court to uphold a provision in the law allowing political parties to appoint additional election observers.

State legislative leaders and the N.C. Justice Department filed new briefs Friday with the N.C. Supreme Court to support North Carolina’s voter ID law. The state’s highest court will rehear a case dealing with that issue on March 15.

The state Republican Party also filed a brief. Republicans want the court to reinstate a portion of the challenged law permitting more at-large election observers.

Plaintiffs who challenged the voter ID law face a March 3 deadline to submit their counterarguments.

In Holmes v. Moore, lawmakers defend the 2018 voter ID law, approved weeks after voters approved a state constitutional amendment supporting voter ID. The law was originally known as Senate Bill 824.

“S.B. 824 is one of the most voter-friendly photo voter ID laws in the Nation, and several African American Democrats voted for it in its final form,” wrote lawmakers’ attorneys. “Yet, the trial court held that S.B. 824 was the product of racial discrimination, on the theory that Republicans in the General Assembly sought to entrench themselves by using race as a proxy for party.”

“Unexplained is why any party seeking to entrench itself would pass such a voter-friendly law or why several Democrats would support them in the effort,” the brief continued. “The trial court’s decision invalidating S.B. 824 is undermined by several flaws, the most fundamental of which is the failure to accord the General Assembly the presumption of good faith. This [Supreme] Court’s initial determination of this matter repeated those errors, and the Court should now correct course and reverse the decision below.”

Plaintiffs challenging the ID law needed to “rebut the conclusion” that the General Assembly acted in good faith. “Instead, the trial court flipped the burden of proof, faulting S.B. 824’s design for failing to ‘evince an intent by the General Assembly to cure racial disparities observed under’ the State’s prior voter ID law.” A federal court had struck down that earlier law in 2016.

Legislators counter accusations that the 2018 voter ID law is racially discriminatory. “Plaintiffs, the trial court, and the majority opinion all fail to identify a single voter of any race who will not be able to vote under S.B. 824, or any array of IDs that would narrow any purported racial gap in ID possession,” according to the brief.

“Before issuing the momentous conclusion that the General Assembly enacted legislation with racially discriminatory intent, a court must apply the appropriate standard and evaluate the competent evidence in the proper light,” lawmakers argued. “The trial court did not do so. Its judgment must be reversed with instructions to dismiss or, at a minimum, vacated and the case remanded for further, and proper, consideration.”

N.C. Attorney General Josh Stein’s Justice Department filed its own brief supporting the voter ID law. “State Defendants’ position is that the photo voter-ID law is constitutional,” according to the brief from Justice Department lawyers.

The Justice Department brief also argued that the N.C. NAACP v. Moore constitutional amendments case has no impact on the “operation of the photo voter-ID law.” In that case, decided in August 2022, the old Supreme Court’s party-line 4-3 decision questioned whether a “racially gerrymandered” legislature could place constitutional amendments on the state ballot, including the 2018 voter ID amendment.

“The General Assembly was at liberty to enact a voter-ID law, with or without the constitutional amendment, so long as that law complied with the state and federal constitutions,” according to the state Justice Department brief.

Justice Department lawyers asked the state Supreme Court to take “logistical necessities” into account as it makes a decision about the future of the voter ID law.

“[A]ll Defendants agree that implementation of the law will require significant lead time,” according to the brief. “Specifically, the State Board and its partners will need to engage in outreach efforts to raise public awareness about the law and its requirements, conduct trainings, develop software changes to the election information management system, and engage in rulemaking.”

The state Republican Party filed a brief on a different point connected to the challenged law. S.B. 824 would have allowed each recognized political party in the state to appoint “up to 100 additional at-large observers” for elections. The state GOP asks the court to separate, or sever, the election observer portion of S.B. 824 from the rest of the bill. That would allow the election observer portion of the bill to move forward.

The state Supreme Court will rehear Holmes v. Moore on March 15. That hearing falls one day after a rehearing of Harper v. Hall. In that case, the state Supreme Court struck down the state Senate map used in 2022 elections. The ruling also upheld a lower court’s decision to strike down a congressional election map created by the General Assembly. Judges substituted their own map for the November election.

The N.C. Supreme Court announced on Feb. 3 that it would rehear the two cases. Justices voted 5-2 to rehear both cases in March.

The court’s five Republican justices voted for the new hearings. The two Democratic justices voted no. Republicans gained a 5-2 majority on the court in January after winning two seats in the November elections.

In Holmes v. Moore, the state Supreme Court ruled 4-3 on Dec. 16 to strike down North Carolina’s 2018 law mandating photo voter identification. The court’s Democrats outvoted Republicans in ruling that the law discriminated against minority voters.

In an order signed by new Justice Trey Allen, the court ruled that state legislative leaders’ petition for rehearing “satisfies the criteria” set out in court rules.

Justice Michael Morgan wrote for the Democrats dissenting from the rehearing order. “There is no aspect of the case at issue which is presented by petitioners in their Petition for Rehearing which meets the historically and purposely high standards to qualify for this Court’s exceedingly rare extension of the opportunity for a party which has already been fully heard by this Court through written submissions and oral arguments — followed by a studious and thorough analysis of the matters at issue which culminates in this Court’s issuance of its binding opinion — to be afforded yet another opportunity to be heard by this Court upon the party’s original unsuccessful efforts.”

The same 4-3 Democratic majority from the outgoing 2022 state Supreme Court that struck down voter ID also ruled on Dec. 16 in the Harper v. Hall redistricting case.

“Upon consideration of legislative-defendants’ petition and the arguments therein, this Court allows the petition for rehearing,” according to a separate Feb. 3 order signed by Allen.

Justice Anita Earls wrote for the Democrats dissenting from the Harper v. Hall rehearing order. “The majority’s order fails to acknowledge the radical break with 205 years of history that the decision to rehear this case represents,” Earls wrote. “It has long been the practice of this Court to respect precedent and the principle that once the Court has ruled, that ruling will not be disturbed merely because of a change in the Court’s composition.”

State lawmakers already plan to redraw the congressional election map for 2024 elections. The rehearing in Harper v. Hall will help determine whether legislators will also redraw maps for their own elections.

The outgoing state Supreme Court issued both the voter ID and redistricting decisions last December, little more than one month after voters replaced two Democratic justices with Republicans. Those two new justices took their oaths of office on Jan. 1, two weeks after the outgoing court issued its rulings.