Lawmakers are developing rules for the freshly passed voter ID constitutional amendment. But nobody believes the law will take effect without a pitched court battle.
One voting law expert has a suggestion.
“I would recommend that the state legislature include a provision in any enabling legislation that gives the legislature the power to appoint a private lawyer as a special assistance attorney general who will have total authority — without supervision by the attorney general — to defend any lawsuits filed against the voter ID law and/or referendum,” Hans von Spakovsky told Carolina Journal on Monday, Nov. 26.
Von Spakovsky, senior legal fellow at the Washington, D.C.-based Heritage Foundation, and a former member of the Federal Elections Commission, has been a critic of state Attorney General Josh Stein’s refusal to defend a previous voter ID law. Von Spakovsky thinks the law was constitutional, and supports other voter integrity actions.
“The state Democratic attorney general cannot be trusted to carry out his legal and constitutional duty to defend the law/referendum, given his unprofessional behavior when the prior ID law was on appeal to the U.S. Supreme Court, and he withdrew the appeal after he was elected,” von Spakovsky said.
“With the newest members of the U.S. Supreme Court, I think any challenge against the law will ultimately fail before the court in the same way that the court previously upheld Indiana’s voter ID law in 2008,” Von Spakovsky said.
“If I were the North Carolina General Assembly I would get that Supreme Court decision upholding voter ID in Indiana, and I would study that decision, and the restrictions that were upheld very carefully, and that’s what I would enact,” Greg Wallace, a constitutional law professor at Campbell Law School, told CJ Monday. Rules for provisional voting, and an easy method to obtain voter identification should be part of the package.
“The North Carolina General Assembly — I’ll say this on the record — has a bad habit of going too far. I think that they need to use that [Indiana] decision as a safe harbor, and essentially copy the types of regulations that were in place for voter ID there,” said Wallace.
He thinks a lawsuit will be filed challenging whatever is passed.
“The reason it’s going to be challenged is because the people challenging it believe they have a favorable number of judges in the 4th Circuit who would strike it down,” Wallace said. He thinks the U.S. 4th Circuit Court of Appeals would find some reason to strike down any voter ID law, even if it’s tailored as narrowly as the Indiana law.
Wallace said the liberal-leaning 4th Circuit could disregard precedent, wagering the Supreme Court is tired of taking up voter ID challenges. Should the justices fail to act, Wallace said, they would undermine public confidence in judicial integrity.
He thinks opponents of voter ID will file lawsuits in both state and federal courts.
Because Democrats now have a 5-2 majority on the state Supreme Court, voter ID opponents might have a better chance to prevail, Wallace said. If the state Supreme Court strikes down a voter ID law under some provision of the N.C. Constitution which doesn’t conflict with federal statutes or the U.S. Constitution, the U.S. Supreme Court couldn’t review North Carolina’s ruling.
Republicans lost their veto-proof majorities in both legislative chambers in the Nov. 6 election in which voters approved the voter ID constitutional amendment. There is a chance Democratic Gov. Roy Cooper, a voter ID opponent, could veto the enabling legislation, and there wouldn’t be enough votes for an override, Wallace said.
Because a voter ID mandate is part of the state constitution, something eventually must become law. State Sen. Mike Woodard, D-Durham, and Sen. Ben Clark, D-Hoke, worked through Monday night on a voter ID bill they planned to submit today.
“We’re always looking to make voting secure, simple, and easy for the voters. Anything that we feel is going to compromise any of those three criteria is going to be something we won’t support,” Woodard told CJ Monday. “If we don’t feel that it is secure, if we think it’s too complicated for voters obtaining an ID, and if we start making it too hard for any group of voters [to cast ballots] we’re not going to support it.”
Woodard hopes Democrats and Republicans can reach compromise.
“We’ve talked about this in our caucus. We did not favor the voter ID amendment as it was proposed. However, 55 percent of the voters approved it. Our view is that the voters have given the General Assembly our marching orders, if you will. So the question is are we going to be able to march together in unison, and put together a bill that honors the voters’ wishes,” Woodard said.
He thinks there is ample opportunity to find common ground, and hopes the process doesn’t become a partisan fight. He said voters not only passed the voter ID amendment, but also they stripped Republicans of their supermajorities, signaling they want heavy-handed partisanship to end.
Working together on voter ID would set a good tone for the 2019 long session, he said.
Even if the General Assembly enacts a compromise measure, Woodard thinks a legal challenge by civil rights and other advocacy groups is inevitable. The NAACP and ACLU have a history of filing such lawsuits, he said.
“I think they’d be more likely to support some of the things Sen. Clark and I have included, but they may not like all of the things we put in either,” Woodard said.
Attempts to get comment from House Minority Leader Darren Jackson, D-Wake, weren’t successful.