State elections board notes challenges scheduling federal voter ID trial in 2024

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  • The North Carolina State Board of Elections filed a court document Thursday explaining why a February trial could prove difficult in a federal lawsuit challenging the state voter ID law.
  • Elections officials argue they will be "exceptionally busy" in February preparing for the March 5 presidential primary. Preparations include implementing the voter ID law for the first time in a primary.
  • The court filing notes that the only months in 2024 with no scheduled voting are June, July, and December.
  • A court hearing Nov. 21 in Winston-Salem could determine how the voter ID lawsuit proceeds.

The North Carolina State Board of Elections explained in a court filing this week why a February trial could prove difficult in a federal lawsuit challenging the state’s voter identification law. ID critics are seeking a February trial.

A hearing on the ID opponents’ request is scheduled Nov. 21 in Winston-Salem.

Voters are required to show a photo ID during this year’s municipal elections. The state will require photo IDs during primary and general elections in 2024, unless a federal court blocks the state ID law.

State government lawyers representing the board of elections filed a six-page document Thursday. It explained that board members “do not oppose” the federal court setting a trial date.  The elections board agreed with legislative leaders about resolving issues of pretrial discovery first. The board also suggested its motion for summary judgment in the case could render a trial unnecessary.

“[F]or scheduling purposes, State Board Defendants would also like to raise several challenges that would likely result if the trial were scheduled for early February and to generally set forth the elections calendar for 2024,” according to the document.

“In early February, State Board staff will be exceptionally busy preparing for the March 5, 2024 Presidential Primary,” the brief continued. Absentee voting for the primary election starts Jan. 12, with in-person early voting scheduled from Feb. 15 to March 2. After the primary, county and state elections boards will canvass votes on March 15 and March 26.

“In addition to the usual heightened level of work required of elections staff during voting for an ongoing election, State Board staff will also be implementing the photo ID law at issue in this action for the first time in a presidential primary and implementing a series of changes to election procedures arising from recently enacted legislation,” state lawyers wrote. “As a result, it would be difficult for State Board staff to prepare for and participate in a trial beginning on the proposed date of February 5, 2024.”

If any primary leads to a winning candidate who lacks a “substantial plurality” of the vote (more than 30%), then a second primary election would take place on May 14. Canvassing for a second primary would take place on May 24 and June 4.

Absentee voting begins on Sept. 6 for the Nov. 5 general election, with in-person early voting scheduled from Oct. 17 through Nov. 2. Canvassing dates are Nov. 15 and Nov. 26.

“Given the election timeline for 2024, the only months without voting taking place are June, July, and December, and possibly April or May if there is no second primary,” according to the document.

The Nov. 21 hearing could determine how the federal voter ID lawsuit moves forward.

Plaintiffs led by the North Carolina State Conference of the NAACP filed a motion on Oct. 12 in US District Court. It seeks a schedule “culminating in a trial commencing the week of February 5, 2024.”

Magistrate Judge Patrick Auld issued a Sept. 12 order denying the plaintiffs’ request to reopen discovery in the case. Auld’s order questioned whether the plaintiffs had acted “in good faith” when seeking additional documents and interviews related to voter ID.

The plaintiffs’ October motion reminded the court that the federal trial had been scheduled twice before — in January 2021 and January 2022. In both cases, appeals delayed the case.

“Setting a trial date in early 2024 will allow the Court to issue a decision on this matter well before the 2024 general election, clarifying the requirements for voting sufficiently in advance to allow for voter education, as well as the preparation of election materials and training of election workers,” according to the latest motion.

A stay issued in December 2021 placed the case in limbo. Plaintiffs challenging the ID law returned to federal court this year after the state Supreme Court’s April 28 ruling allowed the ID requirement to move forward.

A 5-2 ruling from the Republican-led state high court overturned a December 2022 ruling from the same court. Democrats had held a 4-3 Democratic majority in December. Both rulings involved party-line votes from the justices.

Lawmakers approved the 2018 law weeks after NC voters enshrined an ID requirement in the state constitution. That amendment has faced its own legal challenge in state courts. A case targeting the amendment sits now with a three-judge Superior Court panel. The voter ID law can stand or fall legally regardless of the case challenging the state constitutional amendment.

Forward Justice filed the federal suit in December 2018 on behalf of the state NAACP and local NAACP chapters.

A year later, on Dec. 31, 2019, U.S. District Judge Loretta Biggs issued a preliminary injunction blocking the voter ID law from taking effect. In a 60-page opinion, Biggs cited North Carolina’s “sordid history of racial discrimination and voter suppression.”

Parts of the law “were impermissibly motivated, at least in part, by discriminatory intent,” wrote Biggs, appointed to the federal bench by former President Barack Obama.

Nearly one year later, a three-judge 4th U.S. Circuit Court of Appeals panel unanimously reversed Biggs’ decision. Appellate judges determined that the trial court had “abused its discretion” when granting the injunction.

The 4th Circuit judges said Biggs was wrong to factor North Carolina’s earlier 2013 voter ID measure into her decision about the 2018 law.

“The district court here considered the General Assembly’s discriminatory intent in passing the 2013 Omnibus Law to be effectively dispositive of its intent in passing the 2018 Voter-ID Law,” wrote Judge Julius Richardson, an appointee of President Donald Trump. “In doing so, it improperly flipped the burden of proof at the first step of its analysis and failed to give effect to the Supreme Court’s presumption of legislative good faith. These errors fatally infected its finding of discriminatory intent. And when that finding crumbles, the preliminary injunction falls with it.”

Judges Marvin Quattlebaum, a Trump appointee, and Pamela Harris, an Obama appointee, joined Richardson’s opinion.

By the time the 4th Circuit struck down Biggs’ injunction, state courts had moved to block the 2018 voter ID law. The state Supreme Court’s April decision removed the final state court roadblock against voter ID.

While the federal case has yet to proceed to trial, it has seen one major development since appellate judges’ 2020 decision.

Republican legislative leaders asked to intervene in the case to defend the voter ID law. Biggs said no in June 2019. The 4th Circuit also ruled against legislative intervention.

Once the U.S. Supreme Court agreed to hear lawmakers’ arguments for intervention, Biggs issued her stay in December 2021. That order blocked a trial that had been scheduled for January 2022. Biggs put the case on hold pending action from the U.S. Supreme Court “or until further Order of this Court.”

In June 2022, the U.S. Supreme Court ruled, by an 8-1 vote, that Republican legislative leaders would be allowed to intervene in the case. The nation’s highest court determined that Senate leader Phil Berger, R-Rockingham, and House Speaker Tim Moore, R-Cleveland, should have the opportunity to represent legislative interests in defending the law.