Emily Lau, Staff Attorney
PDF Available Here
Over the past decade, North Carolina’s voter ID requirements have generated substantial controversy—and litigation. This week, the North Carolina Supreme Court is scheduled to hear oral arguments in a challenge to the latest version of the state’s voter ID law.
The North Carolina General Assembly initially imposed a voter ID requirement as part of a broader package of voting restrictions enacted in 2013. That legislation came just after the U.S. Supreme Court’s decision Shelby County v. Alabama, which effectively nullified Section 5 of the Voting Rights Act. Under Section 5, certain jurisdictions had been barred from changing their voting rules until they convinced federal officials that the changes would not impede the voting rights of minority groups. After Shelby County, North Carolina no longer had to obtain such federal preclearance.
The voter ID requirement and other provisions of North Carolina’s 2013 law were challenged in federal court, with litigants asserting that they discriminated based on race in violation of the U.S. Constitution. The U.S. Court of Appeals for the Fourth Circuit ultimately agreed and enjoined the challenged provisions, explaining that they “target[ed] African Americans with almost surgical precision.”[1]
Following that federal ruling, the General Assembly proposed an amendment to the North Carolina Constitution requiring voters to present photo ID before casting a ballot. North Carolina voters approved the amendment in November 2018. A month later, during a lame-duck session, the General Assembly implemented the state constitution’s new voter ID requirement by passing SB 824 over Governor Roy Cooper’s veto.
SB 824 requires North Carolina voters to present one of ten forms of acceptable photo ID before casting a ballot.[2] If a voter fails to provide photo ID at the polling place, they may cast a provisional ballot that will be counted only if the voter provides acceptable ID to the county board of elections by the end of the business day prior to the county’s election canvass.[3] There are also exceptions for voters who sign an affidavit attesting to a reasonable impediment to acquiring an acceptable form of photo ID, allowing them to vote on provisional ballots that are to be found valid unless the county board of elections has some grounds to believe the affidavit is false.[4]
In a significant ruling earlier this year, the North Carolina Supreme Court called the 2018 voter ID constitutional amendment into doubt. At the time the General Assembly proposed the amendment, a substantial number of its members had been elected from districts that a federal court had found to be unconstitutionally racial gerrymandered. In North Carolina State Conference of the NAACP v. Moore, the North Carolina Supreme Court held that, because the General Assembly was an illegally constituted body, its authority to initiate constitutional changes was limited. The state supreme court remanded for further consideration, and that case remains pending in a North Carolina trial court.
In the case now before the North Carolina Supreme Court, Holmes v. Moore, the focus is not on the voter ID amendment itself, but rather on the General Assembly’s implementing legislation. Last year, the three-judge state trial court in Holmes held that SB 824 violated the North Carolina Constitution’s equal protection clause and enjoined it from taking effect. The court found that HB 824 “was enacted in part for a discriminatory purpose and would not have been enacted in its current form but for its tendency to discriminate against African American voters.”[5] After General Assembly appealed, the law’s challengers filed a petition for discretionary review with the North Carolina Supreme Court, asking it to take up the case without waiting for a ruling from the intermediate appellate court. The North Carolina Supreme Court granted the petition and also granted the challengers’ motion for an expedited hearing.[6]
Before the North Carolina Supreme Court, the General Assembly now contends that it had an obligation to implement the voter ID constitutional amendment and that the specific features of SB 824 appropriately aim to prevent voter fraud and preserve voter confidence in the outcome of elections.[7] The General Assembly emphasizes that the Fourth Circuit rejected a federal constitutional challenge to SB 824, concluding that the challengers had failed to establish that the law was enacted with discriminatory intent.[8]
The challengers respond by pointing to alternatives that they say would have achieved the General Assembly’s stated goals of fraud prevention and voter confidence without unduly burdening African American voters.[9] They add that, even if the legislature was constitutionally required to enact a photo voter ID law, that does not excuse the enactment of a discriminatory law.[10] In an effort to distinguish the Fourth Circuit’s ruling, they cite evidence presented at trial that the Fourth Circuit did not see,[11] and they stress that the North Carolina Constitution provides greater voting rights protections than the U.S. Constitution.[12]
As the court considers this case, it may have to grapple with the still-unresolved status of the 2018 voter ID amendment. If the amendment is invalidated, that should strengthen the hand of the challengers to SB 824; the legislature could not then argue that a photo voter ID law was constitutionally required. The state supreme court could conclude, however, that this case does not turn on the validity or invalidity of the amendment. The court could determine that, even if the amendment is valid, the General Assembly enacted voter ID in an unlawfully discriminatory form. Or, conversely, the court could determine that, even if the amendment is invalid, SB 824 is nondiscriminatory.
Whatever the North Carolina Supreme Court decides about the fate of SB 824, the battle over voter ID, in North Carolina and elsewhere, is likely far from over. The nationwide struggle over these laws implicates fundamental questions about representation, voting access, and the relationships between voters, their representatives, and the judiciary.
Argument in Holmes v. Moore starts at 1:00 p.m. ET on Monday, October 3, 2022, and can be viewed live on the Supreme Court of North Carolina’s YouTube channel.
[1] N.C. State Conf. of NAACP v. McCrory, 831 F.3d 204, 214 (4th Cir. 2016).
[2] 2017 N.C. Sess. Laws 144. Voters would be required to present one of the following unexpired IDs: a North Carolina drivers license; an ID card for nonoperators or other form of non-temporary ID issued by the DMV; a United States passport; a North Carolina voter photo ID card; a tribal enrollment card; a University of North Carolina, community college, or eligible postsecondary school student ID; a state or local government employee ID; or a driver’s license or ID card issued by another state or US territory as long as the voter registered within 90 days of the election. N.C. Gen. Stat. § 163A-1145.1(a)(1). Voters may also present an unexpired or expired military or veterans ID card. N.C. Gen. Stat. § 163A-1145.1(d1)-(e).
[3] N.C. Gen. Stat. § 163A-1145.1(a)(2).
[4] N.C. Gen. Stat. § 163A-1145.1(c).
[5] Holmes v. Moore, No. 18 CVS 15292, at *76 (N.C. Sup. Ct. Sept. 17, 2021).
[6] Order, Holmes v. Moore, No. 342PA19-2 (Sept. 9, 2022).
[7] Reply Brief of Legislative Defendant-Appellants at 19-20, Holmes v. Moore, No. 342PA19-2 (Mar. 28, 2022).
[8] N.C. State Conf. of NAACP v. Raymond, 981 F.3d 295 (4th Cir. 2020).
[9] Brief of Plaintiffs-Appellees at 46, Holmes v. Moore, No. 342PA19-2 (Mar. 9, 2022)
[10] Id.
[11] Brief of Plaintiffs-Appellees at 49-52.
[12] Id. at 48.