Legislative leaders object to ‘forum shopping’ in voter ID case

Editor’s note: This story has been updated to include a court filing representing the N.C. State Board of Elections.

Legislative defendants in a case challenging North Carolina’s voter ID law are rejecting a proposal to move the case to the state Supreme Court. In a court filing Thursday, they label the proposal a case of “forum shopping.”

“Following over three years of litigation and after securing their sought-after
permanent injunction from a divided Superior Court, Plaintiffs now seek to speed things along,” according to the brief from Republican legislators. “Plaintiffs ask this Court to review and decide the important issues in this case at a breakneck pace before the 2022 elections.”

A Superior Court panel voted 2-1 in September to strike down North Carolina’s 2018 law requiring photo identification for voters. That decision, if it stands, means voters will not be required to present photo identification in elections this year.

The General Assembly’s voter ID supporters appealed that decision to the N.C. Court of Appeals. But as both sides in the case prepared arguments in the case called Holmes v. Moore, voter ID opponents filed paperwork Jan. 14 in the Supreme Court. Voter ID critics want the state’s highest court to bypass the Appeals Court and uphold the trial court’s ruling.

In a separate filing, lawyers representing voter ID opponents have asked for Justice Tamara Barringer’s disqualification from the case. Barringer, a Republican, was a state senator when the General Assembly approved the ID law.

At the trial court level, the two judges rejecting voter ID were both Democrats. The dissenting judge was a Republican. Meanwhile, the GOP holds a 10-5 advantage among judges on the N.C. Court of Appeals. Democrats hold a 4-3 majority on the state Supreme Court.

“Plaintiffs do not hide the reason they want to press fast-forward — a potential ‘reversal of the trial court’s judgment by the Court of Appeals,’” according to the legislators’ brief. “This Court should reject Plaintiffs’ transparent attempt to invoke this Court’s extraordinary power to alter the normal appellate review process based on nothing more than ordinary forum shopping.”

“Instead of prejudging what the Court of Appeals will do in assessing the voluminous record and nuanced legal issues presented by this case, this Court should allow the Court of Appeals to give its fulsome consideration of the issues in accordance with standard appellate procedure,” legislative defendants argued.

Defenders of the voter ID law, originally approved in 2018 as Senate Bill 824, reminded the Supreme Court about important factors in the case.

“Contrary to the Superior Court majority’s decision, S.B. 824 is constitutional,” according to legislators’ brief. “The law was the result of bipartisan and inclusive deliberation. S.B. 824 received the votes of five Democrats at various points in the process, four supported the bill in its final form, and Democratic Senator Joel Ford served as a primary sponsor. The final text of the law offers a central promise: ‘All registered voters will be allowed to vote with or without a photo ID card.’”

Lawmakers disputed ID opponents’ argument that the Supreme Court should speed up the appeals process.

“No one denies the significance of the issues in dispute here, but that is all the more reason for this Court to avoid a decision made in unnecessary haste and without the benefit of the Court of Appeals’ consideration,” according to the brief. “Plaintiffs offer no valid reason to hurry up litigation that has been proceeding diligently for three years.”

The Supreme Court already is slated to consider a separate case challenging a 2018 state constitutional amendment guaranteeing voter ID. That case, N.C. NAACP v. Moore, is scheduled for oral arguments Feb. 14. Carolina Journal has documented the controversial twists and turns in that case at ExtremeInjustice.com.

Legislative defendants argue that it makes sense for the Supreme Court to wait  for a decision about the constitutional amendment before accepting the case dealing with the voter ID law.

The General Assembly initially voted to approve the voter ID law in December 2018, roughly one month after voters approved the constitutional amendment. More than 2 million N.C. voters supported the voter ID requirement, 55% of those voting in the 2018 general election.

A separate brief filed Thursday from Attorney General Josh Stein’s office took no stance on whether the Appeals Court or Supreme Court should hear the voter ID case next. Representing the N.C. State Board of Elections, the brief explained that resolving the case by the end of this year would help with planning for voter ID implementation in 2023.

In addition to the separate lawsuits challenging the voter ID amendment and law in state court, a third lawsuit challenging North Carolina’s voter ID requirement sits in federal court. That case sits in limbo as the U.S. Supreme Court considers whether to allow legislators to intervene and defend the law.