North Carolina Voter ID Law Back in Court

The Honorable Judge Nathaniel Poovey presiding over Holmes v. Moore, which is being heard by a panel of three superior court judges including also the Honorable Judges Michael O’Foghludha and Vince M. Rozier, Jr.. Source: Wake Country Supreme Court

North Carolina voters could be forgiven for forgetting about North Carolina’s Voter ID requirements, as they did not have to deal with them last fall due to injunctions issued by a federal judge and by the North Carolina Court of Appeals in separate cases. The State’s current Voter ID Law, Senate Bill 823, was passed in late 2018, over the veto of Governor Cooper, in order to implement a constitutional amendment approved by voters in the November 2018 election. The amendment added language to Sections 2 & 3 of Article IV, saying that “Voters offering to vote in person shall present photographic identification before voting” and that the General Assembly would set the requirements for identification and was empowered to provide for exceptions.

Senate Bill 823 requires voters to present an eligible ID card containing a photo of the voter or to cast a provisional ballot explaining why they do not have an eligible ID card. Eligible means of identification include: a North Carolina drivers license, other types of identification cards issued by the Division of Motor Vehicles, a US passport, a North Carolina voter photo ID card, a tribal enrollment card, a student ID card, an ID card issued by a state or local government entity, a military ID card, a Veterans ID card, or an out of state drivers license in some circumstances. North Carolina voter photo ID cards are a free ID card offered by County boards of elections, which remain valid for 10 years following issuance. Exceptions under which a voter can cast a provisional ballot without identification include: religious objections, reasonable impediments to securing identification, and natural disaster. Reasonable impediments foreseen by the law include a lack of transportation, disability or illness, inability to present documents necessary to obtain identification, one’s work schedule and family responsibilities, and lost or stolen ID cards; voters may also list another impediment if they provide more information in the affidavit required to cast the provisional ballot. The board of elections will review affidavits and reject it if it has reason to believe the affidavit is false.

The case in which the North Carolina Court of Appeals issued an injunction, Holmes v. Moore, has come before the superior court in Wake County. Jabari Holmes and other individual plaintiffs, with the support of the Southern Coalition for Social Justice, allege that the bill intentionally discriminates against African-American and American-Indian voters, unduly burdens the fundamental right to vote, imposes a financial cost on voting, imposes a property requirement for voting, and impedes voters’ ability to engage in political expression. All claims were dismissed by the court except the first, which alleges the bill intentionally discriminates on the basis of race. Those defending the law, Timothy Moore, the Speaker of the House, Phil Berger, the President Pro Tempore of the Senate, and others, claim that there was no racial motivation, saying that they approached the bill in a bipartisan manner, incorporating Democratic critiques and proposals, and that the bill was sponsored by an African American senator, then-Senator Joel Ford. Ford, a Democrat from Charlotte, has recently reaffirmed his support for the law and criticized those who say it is racist. North Carolina Voter ID laws have been struck down in the past; a 2013 law was struck down because the court found it “[targeted] African-American’s with almost surgical precision.” A 2016 law was struck down as well, and there is no doubt that voter ID laws pose an impediment to exercising one’s right to vote and have a disproportionate impact on African-American voters. The court will hear testimony about the potential for disparate impact, including the fact that African-American voters are 39% more likely to lack qualifying ID. Allison Riggs, from the Southern Coalition for Social Justice advocating for Holmes, told the court that “at the close of evidence, plaintiffs believe that you’ll agree with us that the mountain of circumstantial evidence is so overwhelming that no alleged neutral justifications can overcome that mountain.”

The issue is proving discriminatory intent, which seems like a high bar given that the legislation was passed in a bipartisan manner, in pursuit of a constitutional mandate, and with exceptions to allow those who have difficulty accessing identification cards. Voter ID laws, which are not necessary to prevent fraud as Governor Cooper has argued, may not be good policy. North Carolina is, however, stuck with them for the foreseeable future, and the current legislation might be the best that could be hoped for.