In judicial overreach, appeals court judges block voter ID

Published February 20, 2020

By Andy Jackson

Update: Two of the three judges who heard the appeal may have violated the North Carolina Code of Judicial Conduct. Both Judge John Arrowood and Judge Toby Hampson publicly stated in statements to the People’s Alliance PAC their opposition to the 2018 voter ID constitutional amendment that led to the passage of the ID law they enjoined this week. Those statements cast substantial doubt on their capacity to decide impartially on cases involving voter ID.

They did not have to go out of their way to publicly oppose voter ID; Judge Allegra Collins, the third judge on the panel, responded that she would “respectfully decline to answer” when asked the same question.

Arrowood and Hampson should have recused themselves from the case.

Original post: A three-judge panel of the North Carolina Court of Appeals issued a preliminary injunction against North Carolina’s voter ID law today. In doing so, they revealed that their ruling was not based on any flaw in the law itself, but on their animus towards legislators who passed that law. The judges also lowered the bar that plaintiffs needed to clear to get the injunction.

They started by asserting that plaintiffs do not need to show that voter ID would prevent anyone from voting:

[I]t is the right to participate in elections on an equal basis that is substantial; accordingly, whether Plaintiffs could conceivably still participate in the elections—by jumping through the allegedly discriminatory hoops of S.B. 824—is, in and of itself, not determinative of whether or not S.B. 824 negatively affects the substantial right claimed by Plaintiffs in this case. (p 11)
So, it is not that the voter ID law prevents anyone from voting that the judges have a problem with, it is their belief that it takes more work for African Americans to get an ID they need to vote.

The judges extensively quote Rep. Pricey Harrison’s (D – Guilford) in the ruling. She claimed that the enactment of S824 (the law that implemented voter ID after the North Carolina voters approved adding an ID requirement to the state Constitution in November of 2018) “deviated significantly from proper substantive and procedural legislative practices” (p 25) due to its timing during a lame-duck session and the relatively short period, 21 days, from the introduction of that enabling legislation until the General Assembly overrode Gov. Roy Cooper’s veto. The appeals court judges found that argument “persuasive” (p 29), noting that the General Assembly passed the legislation “prior to losing supermajority status and over the governor’s veto.” While the court acknowledged that the General Assembly acted within its procedures, the judges stated that they could still consider the process of passing S824 unusual.

However, the General Assembly did not violate any procedures when passing S824 and no legislature is obliged to defer legislation to a future legislature. It is logical and normal for legislators to take up legislation when they have the best chance of passing it. Given Gov. Cooper’s threatened veto, there is nothing unusual about the legislature passing constitutionally mandated voter ID while they had a large enough majority to do so.

The court also berated the General Assembly for using “outdated data from 2015” (p 30) rather than seek out newer data. Remarkable, the judges then turned around and accepted recycled 2015 data from a plaintiff’s expert witness because “no data on all 2019 ID-possession rates existed” (p 33). This kind of cherry-picking on what is and is not acceptable data exposes the bias of these judges.

Not a question of “what,” but of “who”

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.

What you can do

In an odd quirk, all three of the judges on the panel (Toby Hampson, Judges John Arrowood, and Allegra Collins) happen to have been elected in 2018, which means that the North Carolina voters who approved adding voter ID to the state constitution will not have an elective remedy to this until 2026.

However, voters can start by making sure they are aware of judges that legislative from the bench.