Voter ID critics defend request for additional discovery in federal lawsuit

Carolina Journal photo
  • Voter identification opponents defend their request to reopen discovery in a federal lawsuit. Republican legislative leaders and the State Board of Elections oppose new discovery.
  • The North Carolina Supreme Court has upheld voter ID as constitutional. Elections officials are asking for voter ID during this year's municipal elections.
  • Discovery in the federal voter ID lawsuit ended in 2020, when parties expected a January 2021. That trial date was pushed back, and the case has been in legal limbo since December 2021.

Opponents of North Carolina’s new voter identification law are defending their request to reopen discovery in a federal lawsuit against voter ID. Republican legislative leaders and state election officials have argued against additional discovery.

Discovery is the stage of the legal process when lawyers collect documents and conduct interviews as they prepare for trial. Discovery in the federal voter ID lawsuit ended in June 2020. At that time, a trial was scheduled for January 2021.

A federal judge delayed that trial and later blocked the case from moving forward. In the meantime, the state Supreme Court ruled in April that the ID law is constitutional. Elections officials are asking for a photo ID when voters head to the polls this year for municipal elections.

Now federal lawsuit plaintiffs led by the North Carolina State Conference of the NAACP seek more information from the State Board of Elections.

“Plaintiffs were diligent and acted in good faith to obtain relevant documents and information during the original discovery period in this litigation,” NAACP lawyers wrote in a court filing Wednesday. “Now Plaintiffs come before the court seeking limited additional discovery from the State Board Defendants to address new information and unexpected delays that have occurred since that time.”

“It was not foreseeable that the ultimate trial date in this case would take place more than three years after the close of discovery, without any evidence in the record regarding the present implementation of the law,” the document added. “State Board Defendants will not be prejudiced by having to complete their previously agreed upon production of the Holmes Litigation discovery documents and to provide updated information about the impact and implementation of S.B. 824 before this case proceeds expeditiously to trial.”

The ”Holmes” litigation refers to the Holmes v. Moore challenge against voter ID in the state court system. Senate Bill 824 was the bill number for the ID law lawmakers approved in 2018.

“This evidence is highly relevant to Plaintiffs’ claims, and Plaintiffs have repeatedly demonstrated their willingness to meet and confer to reduce any burden on the State Board,” NAACP lawyers argued.

The plaintiffs’ latest court filing arrived in US District Court one week after Republican state legislative leaders and the Democrat-led State Board of Elections both objected to additional discovery.

Lawmakers warned that additional discovery could delay resolution of the federal lawsuit until after the 2024 election.

“Legislative Defendants oppose the overall attempt by Plaintiffs selectively to reopen discovery in an apparent bid to expand upon the evidentiary record that was settled years ago,” according to a document legislative leaders filed on Aug. 16.

Lawmakers reminded the court that ID critics attempted to shut the General Assembly out of the federal lawsuit. An 8-1 ruling from the US Supreme Court in June 2022 enabled Senate Leader Phil Berger, R-Rockingham, and House Speaker Tim Moore, R-Cleveland, to take part in the case.

“Legislative Defendants, at the insistence of Plaintiffs, were foreclosed from participation in this matter and had no opportunity to engage in discovery, take any depositions, or submit any rebuttal expert reports or other rebuttal evidence in response to the record created by Plaintiffs,” legislators’ lawyers wrote. “Reopening discovery just for Plaintiffs under these circumstances would be inequitable and highly prejudicial.”

The document also referenced the potential impact on future elections. “Legislative Defendants further oppose Plaintiffs’ efforts to reopen discovery because doing so would almost certainly ensure there would be no final resolution of the issues in this case until after the 2024 election-cycle — a delay that is neither warranted nor necessary.”

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 ruling allowed the ID requirement to move forward.

US Magistrate Judge Patrick Auld determined during a July 26 hearing that ID critics would not be allowed to request additional information or conduct interviews with lawmakers. Auld asked voter ID opponents for more information about their plans for seeking additional information from state elections officials.

Berger and Moore hope Auld will decide that the case should move forward based on discovery conducted by June 2020. “It would be entirely inequitable to Legislative Defendants to allow Plaintiffs to alter the existing evidentiary record and obtain and introduce new evidence, when Legislative Defendants, at the insistence of Plaintiffs, had no opportunity to conduct discovery, depose Plaintiffs’ witnesses, or submit rebuttal expert reports of their own,” legislators’ lawyers wrote.

“Further, this is a situation entirely of Plaintiffs’ own making,” Berger and Moore’s legal team added. “While Plaintiffs attempt to excuse their neglect by pointing to the fact that this case was stayed pending resolution of the Legislative Defendants’ intervention motion, Plaintiffs’ decision to not identify experts and submit expert reports … by the agreed April 15, 2020, deadline predates the order staying this case.”

Lawmakers emphasized the prospect of a lengthy court proceeding. “Legislative Defendants are willing to stand on the existing preliminary injunction record and to proceed with obtaining a decision on the pending summary judgment papers to bring an end to this litigation,” Berger and Moore’s lawyers wrote. “Plaintiffs, who had a full and complete opportunity to obtain discovery and develop the existing record and who decried the prejudice that would result from any delay in a resolution, are ironically the ones asking the Court to proceed down a path destined to create a substantial delay.”

“[I]f summary judgment is not granted, it is almost inevitable that reopening discovery now will lead to a trial only after the 2024 election-cycle in order to have sufficient time to allow for equitable discovery, avoid voter confusion, and not violate the teachings of Purcell,” lawmakers’ lawyers warned. “This delay is entirely avoidable by proceeding on the record as it existed at the preliminary injunction stage and as it stood when discovery closed.”

Purcell is the 2006 US Supreme Court precedent calling on federal judges not to issue decisions “that could change election rules on the eve of an election.”

“If Legislative Defendants, who have had no opportunity for discovery, are willing to proceed with the current evidentiary record, then Plaintiffs, who have claimed for years that they want this case resolved expeditiously and who have had every discovery opportunity, on a schedule they agreed to, have no basis for seeking a different result,” Berger and Moore’s lawyers concluded.

In a separate court filing, the State Board of Elections explained its objections to reopening discovery in the case.

“Plaintiffs have not filed a motion seeking an extension of the discovery period, but that is effectively what they seek with this request,” the elections board’s lawyers wrote. “Therefore,
the State Board respectfully requests that this motion be treated as a motion to extend the
discovery deadline after the time has expired pursuant to Rule 6(b)(1)(B). Because Plaintiffs have failed to demonstrate ‘excusable neglect,’ as Rule 6(b)(1)(B) requires, the motion should be denied.”

“State Board Defendants will be prejudiced by Plaintiffs’ request to reopen discovery,” according to the document. “When the Court stayed this case on December 30, 2021, it noted that the risk of prejudice to the litigants was lessened because ‘[s]taying the case [would] not reopen discovery, require additional litigation, or require the parties to change litigation
strategies.’”

“Now, however, Plaintiffs seek to use the fact that this case has been on hold for twenty months as a basis for reopening discovery, a strategy that will likely produce the precise consequences that this Court was specifically trying to avoid,” the elections board’s brief continued. “Plaintiffs have served State Board Defendants with numerous new discovery
demands, most of which are objectionable and all of which will have the effect of setting
back this litigation by months, possibly longer.”

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