Voter ID supporters, critics prepare for May 6 federal trial

North Carolina’s photo voter identification law faces a federal trial on May 6 in Winston-Salem. Supporters and opponents of voter ID submitted briefs this week preparing for the bench trial before US District Judge Loretta Biggs.

“’It is beyond dispute that “voting is of the most fundamental significance under our constitutional structure”… “Other rights, even the most basic, are illusory if the right is undermined,”’” wrote lawyers for plaintiffs challenging the ID law. They cited a 2016 federal Appeals Court ruling striking down an earlier North Carolina voter ID requirement.

“It is imperative that this right is protected in North Carolina, a state where it has been under assault for decades,” the plaintiffs’ brief continued. “In fact, the Fourth Circuit held that the State’s last attempt at imposing a voter identification requirement was enacted with ‘discriminatory intent,’ ‘target[ing] African Americans with almost surgical precision,’ and ‘impos[ing] cures for problems that did not exist.’”

The lawsuit targets three portions of the 2018 voter ID law, originally known as Senate Bill 824. First, the suit challenges the ID requirement itself. Second, critics oppose a provision allowing any voter to challenge another voter for failing to comply with the ID rule. Third, the complaint targets provisions expanding the use of partisan poll observers.

“S.B. 824 was enacted with discriminatory intent in violation of the Fourteenth and Fifteenth Amendments of the U.S. Constitution and has already had a discriminatory impact on the right of Black and Latino citizens in North Carolina to participate in the political process, in violation of Section 2 of the Voting Rights Act,” voter ID critics claimed. “The trial will confirm the discriminatory intent behind the passage of S.B. 824 and its discriminatory impact, in part through testimony from and about voters who encountered undue burdens and/or were prevented from voting during the Fall 2023 and March 2024 elections, the first elections where S.B. 824 was implemented.”

“Absent relief, thousands of North Carolinians will similarly have their right to vote unconstitutionally abridged. The challenged provisions should be permanently enjoined on the basis of these constitutional and statutory violations,” ID critics argued.

Republican state legislative leaders defending the ID law submitted their own competing brief this week. They reminded Biggs that voters approved a 2018 state constitutional amendment guaranteeing voter ID. SB 824 responded to that amendment.

“S.B.824 ‘is one of the least restrictive voter identification laws in the United States.’ ‘Indeed,’ as the Fourth Circuit previously ruled, ‘the 2018 Voter-ID Law is more protective of the right to vote than other states’ voter-ID laws that courts have approved,’” legislative lawyers argued.  

“Indeed, S.B.824 guarantees that ‘[a]ll registered voters will be allowed to vote with or without a photo ID card.’ The law’s sweeping reasonable impediment provision allows voters to provide any reason at all for lacking ID and cast a ballot that will count so long as they do not lie on the form accompanying the ballot,” legislators explained.

“But S.B.824 does not simply rely on the reasonable impediment provision to ensure that citizens will be able to vote. It has a lengthy list of qualifying IDs that are possessed by the vast majority of voters,” the legislative brief continued. “S.B.824 even created an entirely new form of ID available for free, without any underlying documentation, at every county board of elections (‘CBOE’) in the State. Voters may obtain that ID through the end of early voting, a form of voting used disproportionately by minorities, and immediately use it to vote. If they have not obtained an ID by election day, they may cast a provisional ballot and then return to the board of elections within nine days to obtain a free ID and use it to cure their ballot during that same trip.”

“A legislature bent on discrimination would not go to such great lengths to ensure that all registered voters can vote with or without ID,” lawmakers’ lawyers added.

The State Board of Elections, with a 3-2 Democratic majority, also filed a brief supporting the voter ID law.

“Any voter ID law will have some impact when it is implemented,” the state board’s lawyers wrote. “However, Plaintiffs cannot show that S.B. 824 has a substantial enough impact to support this claim. That is because the ameliorative provisions found in S.B. 824 allow any voter to cast a ballot, with or without a photo ID, such that the burdens imposed by the law on voters who lack identification are minimal at best.”

Of the 1.8 million North Carolinians who cast ballots in the March 5 primary, 1,185 cast provisional ballots “for reasons related to photo ID,” according to the state board’s brief. Election officials ultimately counted more than half of those ballots. “The total that did not have their ballots counted in the recent primary was 477 out of 1,800,118 voters, or 1 in 3,774 voters, or 0.0265 percent of the voting population,” state board lawyers explained.

“The voter ID law had a similarly minimal impact on the 2023 Municipal elections,” according to the board’s brief.

Biggs issued an order on March 13 denying the State Board of Elections’ October 2021 motion for summary judgment in the more than five-year-old case. The elections board had argued that Biggs should reject the lawsuit without a trial.

“State Board Defendants argue that Plaintiffs’ evidence does not show discriminatory intent under the Arlington Heights factors,” Biggs wrote, citing a precedent case. “Plaintiffs argue that there is more than sufficient evidence in the record for each factor to defeat summary judgment with respect to discriminatory intent. Plaintiffs are correct, at least with respect to the historical background and whether S.B. 824 bears more heavily on one race than another or its impact.”

Legal action at the federal and state level delayed implementation of voter ID until 2023. North Carolina now requires voter ID. The federal case could affect voter ID requirements for the general election in November.

“With respect to the historical background, the Parties acknowledge as courts have repeatedly acknowledged, North Carolina’s history of racial discrimination, including the 2013 racially discriminatory voting restrictions,” Biggs wrote in March. “State Board Defendants contend that nonetheless, racial discrimination has not been proven in this case, and specifically argues that ‘[t]he amendment to the North Carolina Constitution marks a significant intervening circumstance that breaks the link between … North Carolina’s history of discrimination with a prior photo ID law and the present photo ID law.’”

“Plaintiffs contend that the process for the constitutional amendment was ‘rushed and irregular.’ … It is undisputed that the North Carolina Constitution was amended to mandate a photo voter ID law. However, factual disputes remain as to the implications that arise from this fact, including whether the voter-ID amendment breaks the link between North Carolina’s history of discrimination or whether S.B. 824 is an extension of North Carolina’s recent history of discrimination,” Biggs wrote.

Biggs is scheduled to hold a bench trial on May 6. That means she will oversee the proceedings with no jury.

“Assessing whether Plaintiffs have shown that racial discrimination was a substantial or motivating factor behind enactment of S.B. 824 is fact-intensive, and at this stage, the Court cannot weigh the evidence or make credibility determinations,” she wrote. “Even after affording the state legislature a presumption of good faith, in light of the evidence in the record on the historical background and impact of S.B. 824, State Board Defendants have failed to show that there is an absence of evidence to support that racial discrimination was a ‘substantial’ or ‘motivating’ factor behind the enactment of S.B. 824.”

“Should Plaintiffs succeed in showing discriminatory intent, the burden would then shift to State Board Defendants to show that S.B. 824 would have been enacted without racial discrimination,” Biggs added.

“The resolution of this issue depends on the credibility of the witnesses, and therefore, is best determined after observation of the demeanor of the witnesses during direct and cross-examination,” the judge explained. “The Court at this time, cannot scrutinize the legislature’s actual nonracial motivations and cannot rule as a matter of law on whether S.B. 824 would have been enacted without racial discrimination.”

In addition to voter ID, the lawsuit challenges provisions in the 2018 law that expanded the number of permitted partisan poll observers and expanded the reasons for challenging a ballot. Biggs will allow those challenges to move forward.

The judge’s order cited evidence that supported voter ID critics’ claims about racial discrimination. “[T]here is sufficient evidence in the record to suggest an inequality in the opportunities enjoyed by non-white and white voters to elect their preferred representatives,” Biggs wrote.

“In assessing the totality of the circumstances, the factual disputes could reasonably be resolved to show that voting is not ‘equally open’ to African-American and Hispanic voters,” the judge wrote. “The threat that Plaintiffs may not ultimately prevail at trial … does not affect the Court’s determination at summary judgment. In light of the factual disputes, the Court cannot rule as a matter of law that S.B. 824 merely poses disparate inconveniences as opposed to an outright denial or abridgement of the right to vote.”

Lawyers for North Carolina’s top legislative leaders filed a motion in February supporting State Board of Elections arguments in the case. The move was designed to ensure that lawmakers could participate in any appeals.

State lawmakers joined the case in 2022, after the US Supreme Court confirmed their right to defend the voter ID law.

The federal trial had been scheduled twice before — in January 2021 and January 2022. In both cases, appeals delayed the case.

A stay issued in December 2021 placed the case in limbo. Plaintiffs challenging the ID law returned to federal court last year after the state Supreme Court’s April 2023 ruling allowed the ID requirement to move forward.

A 5-2 decision 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 voter ID 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, 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 US 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 2023 decision removed the final state court roadblock against voter ID.

The case already has attracted attention from the nation’s highest court.

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 US 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 US 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.