Despite court victory, voter ID could still be years away

In 2018, the North Carolina people voted to add a voter photo ID requirement to the North Carolina Constitution. Inevitably, the law passed by the North Carolina General Assembly to implement that requirement was targetted by lawsuits. Two of those lawsuits resulted in injunctions earlier this year against enforcing the voter ID, one in federal court and one in state court.

In the federal case, Loretta Biggs, a federal judge in North Carolina’s middle district,  ruled on New Year’s Eve in NC NAACP v. Cooper that the law had “discriminatory intent” (page 46) enjoining enforcement of it pending a full trial. Biggs came to that conclusion despite having to admit that North Carolina’s voter ID law is similar to laws passed in South Carolina and Virginia, both of which were approved by federal courts.

Biggs took an openly partisan take to justify her decision despite that contradiction; part of her belief that the legislation was discriminatory was the “vehement opposition from the opposition [Democratic] party” (page 46). It was clear that Bigg’s decision was based, not on the content of the law, but on her animosity towards the General Assembly:

"In short, we are left with the simple fact that Biggs would have found any voter ID bill passed by North Carolina’s General Assembly discriminatory, regardless of the intent of the majority of legislators or the language of the bill itself. That is an unreasonable standard that will not survive appeal."

The wheels of justice ground slowly in this case, with the US Fourth Circuit Court of Appeals waiting until a month after the election to unanimously reverse Biggs’ ruling. However, the judges strongly disapproved of Biggs’ reasoning as seen on pages 28-29 of their decision:

"The district court failed to adhere to our admonishment and the Supreme Court’s unmistakable commands in Abbott. Instead, it considered the North Carolina General Assembly’s past conduct to bear so heavily on its later acts that it was virtually impossible for it to pass a voter-ID law that meets constitutional muster. In doing so, the district court improperly reversed the burden of proof and disregarded the presumption of legislative good faith. And the remaining evidence in the record fails to meet the Challengers’ burden."

In short, Biggs set an unreasonable standard that did not survive appeal.

Out of the federal pot and into the state fire

Unfortunately, North Carolina is still not able to implement Voter ID. That is because a three-judge panel of the NC State Court of Appeals issued its own preliminary injunction in Holmes v Moore last February.

That decision suffered from the same cloudy reasoning driven by antipathy towards the General Assembly that marred Bigg’s decision in the federal court:

"The biggest “unusual procedure” was not what was passed, but who passed it; the court noted that 61 of the legislators who voted for S824 had previously voted for H589, a previous voter ID law that had been struck down as discriminatory noting that “sixty-one of the legislators who voted in favor of S.B. 824 had previously voted to enact H.B. 589” (p 28). The court also willfully chose to ignore the fact that courts had already cleared similar laws from Virginia and South Carolina, claiming that “discriminatory intent was a motivating factor behind the passage of this act” (p 39) whereas it was not the motivating factor behind similar legislation from other states.

"So, in the end, this injunction is not about the actual effect that the law will have, but on three judge’s personal opinions of members of the legislature. In taking this line of reasoning, they lowered the bar that the plaintiffs needed to clear in order to get an injunction.

"The judge’s injunction is not based on any deficiencies in North Carolina’s voter ID law, it is based on their animus towards members of the General Assembly."
So, can we soon expect a reversal of this preliminary injunction similarly to the reversal of Biggs’ injunction?

Probably not.

The next step in the process is the North Carolina Supreme Court, which currently has a 6-1 Democratic Majority, giving the Republican legislative defendants little hope of prevailing there on appeal. Even after Republicans swept statewide judicial races this year, Democrats will still have a 4-3 majority on the high court.

The legislative defendants may choose to forgo appealing the preliminary injunction altogether. They could also try to slow-walk the trial and appeals process of the trial on the merits of Holmes v Moore (yes, we are still just in the preliminary phase) so that it does not reach the NC Supreme Court until after the 2022 election when there might be a Republican majority on that court.

Despite the legal victory on voter ID today, we might not see voter ID implemented in North Carolina until 2023.