A second court has blocked voter ID in North Carolina — a move policymakers and analysts denounce as riddled with substantive and procedural problems.
A state Court of Appeals three-judge panel has temporarily banned a law requiring voter ID in North Carolina elections. This comes after a U.S. District Court judge blocked the same law in federal court in December, citing the impending March primaries.
The voter ID amendment was approved by 55.5% of voters in a 2018 ballot referendum. Opponents of the law say it’s racially discriminatory.
With the law enjoined at the federal and state levels, it’s unlikely photo ID will be required in this year’s general election, said Mitch Kokai, senior political analyst at the John Locke Foundation.
If the federal court issues a final ruling to block the law, the state court case is moot, said Mike Schietzelt, legal fellow at the John Locke Foundation. If the federal court approves the law, the state court can still block it.
Regardless, the preliminary injunctions send a strong signal as to how the courts will rule in their final orders, Schietzelt said.
Plaintiffs haven’t proven discriminatory intent
The Appeals Court order echoed plaintiffs’ statements that black voters are more likely than white voters to lack an acceptable ID. Black voters, in that argument, would likely have to rely more on the reasonable-impediment provision. This allows people to submit a provisional ballot, which would be counted unless the county board deems the stated impediment invalid.
Even though defendants contend it’s not “overly burdensome,” it’s “still one more obstacle to voting,” the court states.
“[A] voter using this provision must still undertake the additional task of filling out the reasonable-impediment form and submitting an affidavit verifying its veracity to cast a provisional ballot, which is subject to rejection if the county board believes the voter’s affidavit and reasonable impediment are false.”
Plaintiffs still haven’t proved discriminatory intent, Kokai said.
“Anything that has disproportionate impact on African Americans is cited as proof of discriminatory intent,” Kokai said. “Nothing about this voter ID law shows real discriminatory intent. The court and the plaintiffs are trying to use statistics to help fight voter ID.”
The Court of Appeals cited past voter ID laws, which shouldn’t apply in this case, said Jeanette Doran, president and general counsel of the N.C. Institute for Constitutional Law, in a news release.
“If the courts always look back to previous attempts to pass voter ID laws and say that because those were unconstitutional so is this one, no voter ID law will ever survive a legal challenge,” Doran said. “That subverts the will of the voters. People should be deeply troubled by that.”
Appeals Court had no jurisdiction
The Court of Appeals probably should not have been allowed to hear the case in the first place, Schietzelt argues.
The state trial court originally declined to issue an injunction on the voter ID law in July 2019, saying that the case should proceed to trial.
Eager for an injunction, plaintiffs appealed the case to the Court of Appeals, even though a final order hadn’t been issued. It’s called an interlocutory appeal, which usually isn’t allowed. One exception is when the case would affect a “substantial right” of a plaintiff.
The court cherry-picked through legal precedents to prove this substantial right, Schietzelt says. The Court of Appeals cited the U.S. Supreme Court case Dunn v. Blumstein, which says “a citizen has a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction.” The court left out the critical part of the text that follows: the equal right to vote is “not absolute” and “states have the power to impose voter qualifications, and to regulate access to the franchise in other ways.”
After obtaining the interlocutory appeal, the Court of Appeals on Feb. 18 sent the case back to the trial court with a temporary injunction to ban voter ID.
The state-level injunction doesn’t carry a whole lot of practical impact in the short term, Schietzelt said. The federal court had already blocked voter ID for the primaries. But pushing the injunction in separate courts was a tactical maneuver by the plaintiffs, he said.
“It makes defendants continue fighting this on two different battlegrounds,” he said.
Lawmakers say law violates voters’ opinion
Republican lawmakers and party leaders say the injunction overturns voters’ decision in 2018 to require voter ID in elections.
“Three elitist Democratic judges just decided that the people cannot amend their own Constitution, even though the voter ID amendment received more votes than any of the judges,” said Sen. Warren Daniel, R-Burke and Sen. Joyce Krawiec, R-Forsyth, in a statement. “Democrats and their allies on the judiciary will have to answer for overturning the clear will of voters come November.”
More than 30 other states have enacted similar laws, which federal courts have upheld, N.C. Republican Party Chairman Michael Whatley said in a statement.
“An overwhelming percentage of North Carolinians of every demographic support voter ID and we are very disappointed to see a panel made up of three Democratic judges overturning their votes by judicial fiat,” he said.
House Speaker Tim Moore, R-Cleveland, said General Assembly leaders will continue pushing for a “commonsense voter ID law” to be put in place.
“We will not be deterred by judicial attempts to suppress the people’s voice in the democratic process,” Moore said in a statement.