New NC Supreme Court could restore 2018 voter ID law

N.C. Supreme Court Justice Richard Dietz, left, asks a question as Justices Phil Berger Jr. and Michael Morgan listen to oral arguments. (Image from Supreme Court of North Carolina YouTube channel)

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  • The N.C. Supreme Court reconsidered Wednesday a case dealing with the state's challenged 2018 voter ID law. Justices could throw out a ruling that blocked the law from taking effect.
  • All seven justices took part in the rehearing. Voter ID critics had asked Republican Justices Phil Berger Jr. and Tamara Barringer to recuse themselves from the case.

The N.C. Supreme Court took a second look Wednesday at a case targeting the state’s 2018 voter identification law. The court could reinstate the law, reversing a decision handed down three months ago.

On Dec. 16, the outgoing Supreme Court’s 4-3 Democratic majority upheld a trial court’s decision to throw out the law. Democratic justices agreed the law was unconstitutional because of racially discriminatory intent.

Two weeks later, two of those Democrats left the state’s high court. Two Republicans elected in November replaced them.

Court rules allowed Republican legislative leaders to seek a rehearing in the case titled Holmes v. Moore. The current court, with its 5-2 Republican majority, agreed in February to revisit the voter ID law, referred to in court as Senate Bill 824.

“What’s the direct evidence in the record that the legislators who voted for S.B. 824 intended it to be discriminatory?” asked Justice Trey Allen, one of the two new justices. “Are there any statements made by legislators, for example, around the enactment … that you can point us to?”

Anita Earls, Tamara Barringer, and Trey Allen on state Supreme Court
N.C. Supreme Court Justice Trey Allen, right, asks a question as Justices Anita Earls and Tamara Barringer listen to oral arguments. (Image from Supreme Court of North Carolina YouTube channel)

Attorney Paul Brachman, representing voter ID critics, conceded there was no direct evidence that lawmakers intended the law to be discriminatory. He pointed to the history of a previous ID law struck down by federal courts as discriminatory. Brachman also cited the legislature’s decision to approve the challenged law in a lame-duck session after the 2018 election. Republicans had lost veto-proof supermajorities in that election.

“This law does bear more heavily on African-American voters because they’re disproportionately more likely to lack qualifying ID, more likely to face difficulties acquiring ID,” Brachman said, and as evidenced under the earlier ID law, “more likely to run into difficulties with the reasonable impediment provision.” That provision allows voters to cast a ballot without an ID.

Paul Brachman at N.C. Supreme Court
Attorney Paul Brachman offers an oral argument to the N.C. Supreme Court. (Image from Supreme Court of North Carolina YouTube channel)

Allen questioned how the law could discriminate against any voter.

“The legislature acted in what you called a lame-duck session to avoid having to pass a watered-down version of the voter ID law,” Allen said to Brachman. “I’m just curious as to what you think that would be because the law in front of us provides IDs free of charge and … doesn’t actually prevent anyone from voting.”

Justice Phil Berger Jr. questioned the emphasis on the prior voter ID law struck down by federal judges.

“What you have argued is that because of the history in North Carolina, because of the previous legislation, … that the legislative act in question here, [S.B.] 824, is somehow impermissible because of connecting those dots,” Berger said. “At what point is there a severance of that line? I think of it like fruit of the poisonous tree. At what point is the taint removed such that this legislation, under your argument, could be passed by the legislature?”

Sitting next to Berger, Democratic Justice Michael Morgan emphasized the importance of the “earlier unconstitutional voter ID law,” along with the lame-duck vote, the number of legislators who supported both ID laws, expert trial testimony, and other factors that led to the trial court’s decision.

“How many more factors do you need in this case for the presumption to have been rebutted that the legislature had discriminatory intent here?” he asked Pete Patterson, lawmakers’ attorney.

Patterson reminded justices that the disputed law would not block any eligible voter from casting a ballot.

“There is no person in North Carolina that the plaintiffs have identified who, according to the terms of S.B. 824, will not be able to vote,” Patterson said. “It does not bespeak … racially discriminatory intent to enact a voter ID law that allows everyone to vote.”

Peter Patterson in NC. Supreme Court
Attorney Peter Patterson offers an oral argument at the N.C. Supreme Court. (Image from Supreme Court of North Carolina YouTube channel)

Two justices sparred over the rehearing itself.

Justice Anita Earls, a Democrat, questioned why her colleagues took the rare step of reconsidering its December decision in Holmes v. Moore.

“Help me understand when any case would be final,” Earls asked Patterson. “In every case, there are two sides to the argument. The side that loses believes that we misapprehended the law and got it wrong. So where do we draw the line? When do we not allow rehearing?”

“How does that give us any finality in the law?” Earls added.

Judge Richard Dietz, a Republican elected in November, interrupted Patterson’s response. His questions to the lawmakers’ attorney reminded the court that it has 30 days to respond to any request for rehearing.

“You might ask why would the drafters of Rule 31 put that in there. It seems that the reason is finality,” Dietz said.

“There’s a tight time frame in there to get this thing done, and it’s not going to sit around with people wondering: Is this a final decision or not,” he added. “It seems like a very clear rule to follow.”

All seven justices took part in the oral argument. Hours before the hearing, the court posted an order noting that the full court had agreed Berger could participate. Though court rules allowed him to decide on a motion for recusal himself, Berger had submitted the issue to his colleagues.

Plaintiffs had challenged participation from both Berger and Justice Tamara Barringer. Barringer issued a separate order Monday confirming that she would take part in the case.

The path that the Holmes v. Moore case took to get to the high court in the first place proved controversial.

Back in September 2021, a three-judge trial court threw out North Carolina’s voter ID law by a 2-1 vote. Two Democratic judges overruled a Republican colleague in deciding that the ID law was racially discriminatory and violated the N.C. Constitution.

Following the trial court ruling, defenders of voter ID asked the N.C. Court of Appeals to hear their appeal, while plaintiffs asked the state Supreme Court to intervene. The high court voted along party lines to hear the case just weeks before the 2022 general election, when two seats on the high court held by Democrats were up for grabs.

Legislative leaders accused ID opponents of “forum shopping” based on the contrasting partisan compositions of the two appellate courts. Republicans then outnumbered Democrats, 10-5, on the Appeals Court. Democrats outnumbered Republicans, 4-3, on the state Supreme Court.

“Once more, the majority expedites the hearing of a case where no jurisprudential reason supports doing so,” Chief Justice Paul Newby wrote for dissenting Republican justices when Democratic colleagues agreed to expedite the case.

If the state Supreme Court reverses course and upholds the law under the N.C. Constitution, the legal story will continue.

The voter ID law also faces a challenge in federal court. In an 8-1 ruling issued in June 2022, the U.S. Supreme Court ruled that state legislative leaders had the right to intervene in the federal case to defend voter ID. Originally scheduled for trial in January 2022, that federal case has not yet been rescheduled. No documents have been filed in the case since July.