May 15  2021

Federal Judge Spikes NC's Voter ID Requirement

No photo ID currently required for primaries; appeal underway

By Tristan Dufresne and Leigh Lassiter 1/9/20 9:40PM

A preliminary injunction against implementation of an amendment to North Carolina's constitution requiring photo ID to vote, passed in late 2018, was granted by a federal judge on on Dec. 31.

Judge Loretta Biggs' decision overruled, at least temporarily, the General Assembly's amendment to the state constitution requiring voters to present photographic identification at their polling place. The law, SB 824, implements a 2018 ballot initiative supported by the majority of N.C. voters. Chapters of the NAACP across the state brought the suit.

Supporters of the bill say it would prevent instances of voter fraud, such as residents voting twice and non-citizens casting ballots.

Biggs, judge for the U.S. District Court for the Middle District of North Carolina, justified the injunction in part by recounting historical limitations placed on minority groups' voting rights in the state.

"North Carolina has a sordid history of racial discrimination and voter suppression stretching back to the time of slavery, through the era of Jim Crow, and, crucially, continuing up to the present day," Biggs wrote in her decision.

"The legislature has continued to violate both the [1965 Voting Rights Act] and the Constitution," she continued, citing the findings by a federal court in 2016 that North Carolina's legislative maps were racially gerrymandered.

"Accordingly, the historical context weighs in favor of a finding of discriminatory intent with respect to S.B. 824's enactment," Biggs wrote.

Biggs also pointed to how African-American and Hispanic registered voters are almost twice as likely as white or non-Hispanic registered voters to not have DMV-issued IDs, while IDs they are more likely to have — public assistance and government employee IDs — are not accepted by the law. DMV-issued IDs, U.S. passports, military and veteran IDs, tribal enrollment cards, student and state or local government employee IDs of approved institutions, out-of-state IDs for newcomers, and special free voter photo IDs were the 10 allowed IDs.

Furthermore, free IDs and a provision meant to let people without IDs vote if they claimed "reasonable impediments" were both deemed impractical solutions.

As it stands, the N.C. State Board of Elections website confirms that photo ID will not be required of voters casting ballots in the upcoming spring primaries, or in the November general election unless there is a change in court position.

N.C. Attorney General Josh Stein's office will appeal the decision after the spring primaries, in the 4th U.S. Circuit Court of Appeals. Stein is a Democrat.

Senate majority leader Phil Berger, a Republican from Rockingham County who has spearheaded the efforts of Republican majorities since becoming the North Carolina Senate's president pro tem in 2011, wrote on December 30 in Facebook that he finds it unfair that "the judge…refused the legislature's attempts to defend the law that we wrote," instead giving that job to Stein and the governor.

Governor Roy Cooper, a Democrat, has made no public statement on the matter nor responded to the Sundial's request for comment as of this publication. Though he opposed the amendment and vetoed SB 824, he is a defendant in the suit because he is governor.

The amendment's contentious history began when the General Assembly passed Senate Bill 824 on December 6, 2018 in response to voters approving the amendment one month earlier. A subsequent veto by Gov. Cooper was overridden by the legislature in a party-line vote on December 18. The override took place while Republicans retained a veto-proof supermajority in the Senate, which was lost in January 2019 as a result of the November 2018 election.

The North Carolina NAACP and local chapters filed the lawsuit in the spring of 2019 and successfully argued its case before Superior Court Judge Bryan Collins, who declared the amendment unconstitutional.

A state appeals court overturned Collins' decision and allowed for the implementation of voter ID legislation. Biggs' decision reversed that.

A final judgment might not be rendered until mid-2020, and may affect the upcoming November election.

Sen. Berger has taken to social media to rebuke Judge Biggs several times since the decision. On January 3, he called her "an unelected, Democratic judge" who "suppressed your votes."

On December 30, Berger characterized her as part of a national problem. "The out-of-control liberal elite on the federal bench is suppressing the votes of millions of Americans, and it has to stop," he wrote. "We need President Donald Trump in office to keep appointing new judges, because this lawlessness is completely unacceptable."

"I was heartened by the strength of our position as viewed by the court," Chapel Hill –Carrboro NAACP branch president Anna Richards told the Sundial.

"Minority populations are oftentimes more impacted because of the circumstance in which they were born," Richards added. "People who weren't born in a hospital may have trouble even getting a birth certificate," let alone a state or federal ID. Also, "I think people don't take into account the burden this places on the elderly and those in more rural areas."

In her ruling, Biggs called out the bill's authors as feigning being "faithful servants whose hands were tied" after hearing the people's will. Rather, she writes, they long had the goal of requiring voter ID — evidenced by bills passed in 2011 (vetoed) and 2013 (struck down by courts in 2016) — and gathered public support to achieve that goal.

Biggs also mentions that the Republican supermajority that created the ballot initiative and overrode Gov. Cooper's veto may not have existed "were it not for unconstitutionally gerrymandered maps."

Furthermore, Biggs wrote, "While the legislature may have had to pass some form of photo voter-ID law, it did not have to enact one which suffers from impermissible defects."

On December 30 attorneys representing state legislators emailed the North Carolina Department of Justice asking that it "seek a stay of Judge Biggs' injunction immediately to avoid irreparable harm to the state," with reference to confusion surrounding identification requirements for the primaries.

"We know that voter fraud isn't really a problem here," ACLU of North Carolina spokesperson Citlaly Mora said to the Sundial in a phone conversation. "Voting is a fundamental right, and we don't want to see any law passed that is going to disenfranchise people, especially our marginalized communities."

The ACLU was the plaintiff in the case against a similar statute passed in 2013 and struck down in 2016 by the Fourth Circuit.

"Voter suppression hurts all voters because it limits access," NAACP's Richards said, pointing out that entire polling stations could be shut down if turnout is low enough.

Richards says she doesn't see a way to rewrite the law to satisfy her organization.

"I believe fundamentally the intent of the law is to suppress the vote, and not to encourage voting," she said.

"In a democracy, the emphasis should be on how can we get more people to vote."


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