Years later, legal challenges still stand in way of voter ID implementation
Published 12:10 am Sunday, December 20, 2020
By Natalie Anderson
SALISBURY — North Carolina lawmakers have tried for nearly a decade to implement a voter identification law, with courts ultimately ruling a 2013 law was passed with racially discriminatory intent. And with the latest law passed in 2018 being challenged on similar merits for at least another year, it’s unclear when and if such a measure will ever become settled law.
On Dec. 2, a three-judge panel of the U.S. 4th Circuit Court of Appeals reversed a lower court’s decision to prevent the implementation of a 2018 voter ID law that passed with support from a majority of voters. The ruling disagreed with a district court’s decision stating the North Carolina photo ID law would likely have a disproportionate impact on Black voters who “could be deterred from voting or registering to vote because they lack, or believe they lack, acceptable identification and remain confused by or uninformed” about the law.
“The outcome hinges on the answer to a simple question: How much does the past matter? To the district court, the North Carolina General Assembly’s recent discriminatory past was effectively dispositive of the challengers’ claims here,” the 4th Circuit Court stated. “But the Supreme Court directs differently. A legislature’s past acts do not condemn the acts of a later legislature, which we must presume acts in good faith. So, because we find that the district court improperly disregarded this principle by reversing the burden of proof and failing to apply the presumption of legislative good faith, we reverse.”
North Carolina GOP Press Secretary Tom Wigginton credited the panel with upholding “the rule of law.”
“A majority of North Carolina voters and their elected representatives voted to adopt voter ID,” Wigginton said. “This ruling reinforces the fundamental principle of representative government that the people make the law, not judges. The proper role of the judiciary is to interpret the law as written, not as they wish it should be.”
But North Carolina Democratic Party Chairman Wayne Goodman said, “We should be making it easier for eligible voters to vote, not harder.”
Goodman said he’s doubtful of the Republican-led General Assembly’s “good faith” in implementing the voter ID law since it included restrictions on the types of ID accepted.
The recent decision on the 2018 voter law by the federal 4th Circuit Court of Appeals doesn’t mean the law is reinstated because there’s an injunction from a federal court case filed by the North Carolina chapter of the NAACP. Additionally, plaintiffs in a state lawsuit have won an injunction, preventing it from being implemented until a final ruling is decided. The state case was filed by the Southern Coalition for Social Justice, a nonpartisan organization that advocates on behalf of the historically marginalized. The SCSJ is currently challenging the law in the case of Holmes v. Moore.
Jeff Loperfido, senior counsel for voting rights at SCSJ, said that case has a trial date set for April 21.
Using a sports analogy, he said legal proceedings are “still in the first half.”
Path to passage
From 1965 to 2013, North Carolina was one of several states that was required to obtain federal permission under the Voting Rights Act before enacting any voting law. To obtain permission, a state had to present persuasive evidence that the proposed state law would not result in diminishing the ability for any citizen to vote based on their race or color.
A voter ID bill passed both the House and Senate in 2011, but was vetoed by then-Gov. Bev Perdue, a Democrat. Another attempt was made in 2013 after state lawmakers requested information about voting practices by race. Meanwhile, the Supreme Court rejected the Voting Rights Act’s requirement for North Carolina to obtain permission before implementing voter laws in the case of Shelby County. v. Holder (2013).
Rep. Harry Warren, a Republican who currently represents House District 76, was among the primary sponsors of House Bill 589, which ultimately became law following the signature of then-Gov. Pat McCrory, a Republican. Free from obtaining federal permission, lawmakers expanded the bill, but it would be ruled too restrictive because of racially discriminatory intent. Those restrictions included the elimination of pre-registration to vote, the elimination of out-of-precinct provisional voting, the elimination of same-day registration, the reduction of time for early voting and the creation of a photo ID requirement.
The 4th Circuit Court in 2016 stated those five restrictions in the 2013 law “unmistakably” reflected the General Assembly’s motivation to “entrench itself . . . by targeting voters who, based on race, were unlikely to vote for the majority party,” with “almost surgical precision” using the data on voting practices. Additionally, the court stated it excluded many of the alternative photo IDs used by African-Americans but kept “only the kinds of IDs that white North Carolinians were more likely to possess.”
Had the General Assembly passed the 2013 law, HB589, the way it was originally written, Warren said, it would have passed the U.S. Department of Justice’s standards. As originally written, acceptable forms of ID included a North Carolina’s driver’s license; a learner’s permit or provisional license; a special ID card for non-operators; a U.S. passport; an employee ID card; a U.S. military ID card; an ID card issued by the University of North Carolina and its branches; a North Carolina community college ID card; a tribal ID card; an ID card issued to a firefighter, EMS, hospital employee or law enforcement officer; an ID card that included no more than 10 years after the expiration date or date of issuance; or an ID card that included an expiration date that wasn’t expired on the day the voter reached 70 years of age.
The requirement for photo ID would have started with the 2016 election.
Exceptions included those who objected to having their picture taken for religious reasons. It established a process for voters who lost their ID in natural disasters. Further, if a voter didn’t have a photo ID, they could vote by provisional ballot as long as they provided an acceptable form of ID before the county officially canvassed the election.
The bill as Warren and others presented it would implement a three- to five-person panel for a Voter Information Verification Advisory Board, with the ability to hire up to 14 people to assist the board in promoting voter education, providing voter registration drives and assist those without appropriate ID in obtaining an acceptable form of ID. The bill also stated that the fee for a special ID card wouldn’t apply to a voter who is registered but doesn’t have an acceptable form of ID. For a voter to receive an ID for free, the voter had to sign a sworn statement that includes a statement about how paying the fee would present a financial hardship.
But following the ruling after the Shelby County case, new amendments were added to the bill. One amendment was the implementation of additional criteria in order to accept a tribal enrollment card. That amendment stated the tribal ID must be issued within a state or federally recognized tribal community and issued in accordance with a process approved by the state board of elections, which requires an application and proof of identity similar to those required for a driver’s license. Further, it required the voter to have their tribal ID signed by an elected official of the tribe.
Another amendment was that a county board of elections may unanimously vote to submit a request to the state board of elections to reduce the number of hours established for absentee ballots for a primary or general election.
Originally, the bill stated that during any election between October 2013 and January 2016, voters without photo ID would be informed about when the photo ID requirement became effective, along with a list of acceptable forms of ID and how to obtain them. Once passed, an amendment changed the language to state that county boards of elections were only required to inform voters of the new law.
The final bill eliminated the implementation of the Voter Information Verification Advisory Board and limited the natural disaster exception to counties that were subject to a natural disaster declaration.
The final bill also invalidated several forms of acceptable ID, including an ID card issued by UNC or its branches, an ID card issued by a North Carolina community college, ID cards issued to firefighters, EMS, hospital employees or law enforcement officers, ID issued by a unit of local government or for a government program of public assistance and a card that included an expiration date that wasn’t reached when the voter turned 70 years old.
The North Carolina State Conference of the NAACP filed suit against McCrory, and in 2016 the U.S. 4th Circuit Court of Appeals ruled that the 2013 bill was passed by a state that acted with racially discriminatory intent.
North Carolina lawmakers then put the issue in the hands of voters with a 2018 midterm election ballot referendum that would add a voter ID amendment to the state constitution. It passed with support from 55% of voters.
Latest court challenge
Republicans lost a supermajority in both chambers following the 2018 election, and Gov. Roy Cooper vetoed the law. But the General Assembly voted to override his veto.
The 2018 law is similar to the 2013 law in that a voter can complete a provisional ballot and have their vote count if they bring an acceptable form of ID to the county board of elections no later than one day before the county canvasses the election. Additionally, the 2018 law made exceptions for religious objections and natural disasters.
The 2018 law also allowed voters to complete a Reasonable Impediment Declaration Form and affidavit, with acceptable impediments including inability to obtain an acceptable form of ID due to lack of transportation, disability or illness, lack of birth certificate or other underlying documents required, work schedule or family responsibilities or a lost or stolen ID.
The 2018 law included some forms of ID that had been invalidated in the final version of the 2013 law and expanded the list to include a student ID issued by University of North Carolina, a community college or eligible private post-secondary school, employee ID issued by local government entity and a driver’s license from another state only if the voter’s registration was within 90 days of the election. All of these forms had to be unexpired or expired for no more than one year with a photo.
Other forms of ID accepted, regardless of whether the ID contained an expiration or issuance date, including a military or veterans ID card or any expired form of ID presented by a voter who is 65 or older as long as the ID wasn’t expired on the voter’s 65th birthday.
The law allowed voters to obtain a photo ID for free from their county board of elections. The 2018 law would have been in effect for the 2020 election.
A day after the law’s enactment, it was challenged by the North Carolina chapter of the NAACP for including the same racial discriminatory intent as the 2013 law. And the district court agreed, finding that the challengers were likely to succeed on the merits of their constitutional claims, which issued a preliminary injunction against the law’s enforcement.
“It’s hard to unlearn that information that the legislature learned in 2013,” said Dustin Chicurel-Bayard, a spokesperson for the North Carolina chapter of the American Civil Liberties Union.
Since data show voters of color disproportionately lack a voter ID, it worsens the participation gap, Chicurel-Bayard said. The disproportionate impact, however, wasn’t created in a vacuum, he said, as it’s the product of broader systemic inequities found in society which have racist outcomes.
“There are numerous barriers built upon generations of discrimination,” Chicurel-Bayard said. “This is just one of the numerous ways it shows itself in our society.”
Additionally, communities burdened with systemic inequities also tend to have a mistrust in the government, and showing ID can further deter them from turning out to vote.
Warren said he was glad to see the three-judge panel on Dec. 2 overturn the court’s ruling because a 55% approval rate of the amendment shows that “it’s obvious the folks in North Carolina support protecting the integrity of the vote.” Warren said he thought the issues being brought up could’ve been addressed but that the lower court’s ruling “was more of a political comment from judges rather than factual assessment of the bill.”
Additionally, he added that he doesn’t like the idea of assuming all Black voters will vote Democrat in an election and that the law is applied equally among Republican and Democrat voters.
‘In some shape or form’
Catawba College politics professor Michael Bitzer said the history of gerrymandering and voter suppression laws are technically separate, but they can be weaved together depending on one’s political views. Republicans, Bitzer said, contend voter ID laws bring about a sense of election security but Democrats cite that it’s “a solution in search of a problem.”
“It’s another divided partisan viewpoint,” he said.
Data from the State Board of Elections shows 570 cases of alleged fraud were referred to prosecutors between 2015 and 2019. Of those, only five cases of voter impersonation were referred, while the plurality of cases were related to felon voting — 459. There were 49 cases related to double voting.
“Everything that relates to voting in North Carolina ends up in court in some shape or form,” Bitzer said.
Bitzer said the research on the impacts of voter ID laws is mixed and that laws mostly impact those with a lower socioeconomic status. The 2016 Survey of the Performance of American Elections showed 7% of white respondents did not have either a driver’s license or passport. That’s compared to 17% of Black respondents and 9% of Hispanic respondents.
Research associated with litigation in which voter rolls have been matched against driver’s license lists has confirmed this finding in states such as North Carolina, Pennsylvania, South Carolina, Texas and Wisconsin, according to the MIT Election Data and Science Lab.
Whether the lack of photo ID leads to a decrease in turnout is still up for debate as there has not yet been any large-scale study to examine the effects of voter ID laws and turnout, according to the MIT Election Data and Science Lab. Some early studies found no statistical association between strict ID laws and decreased turnout, while more recent studies by the U.S. Government Accountability Office have shown negative correlations between strict photo ID laws and turnout.
Additionally, inconsistent implementation of the laws can further blur the correlation, if any.
Currently, strict ID laws are fairly popular among various groups of the public, including Democrats, minority groups and those who identify as liberal, according to data from the MIT Election Data and Science Lab. Though Republicans, conservatives, and white citizens are more likely to approve of such laws.
But three factors are common among states that ultimately adopt voter ID laws, including a Republican takeover of the state after years of Democratic control, being a “battleground state” and being racially diverse.
Loperfido, of the Southern Coalition for Social Justice, said such a law seems like “a bit of a disconnect” for election security as it only addresses instances of those who impersonate others, which leads people to wonder “what integrity could this law actually bring?”
Additionally, it “continues that legacy of modification of who gets to vote and whose vote gets counted,” Loperfido said.
Loperfido said North Carolina has racially polarized voting, which plays a factor in redistricting that ultimately leads to gerrymandering. Therefore, the resulting voter suppression from implementing voter ID laws and racially-motivated redistricting are “dueling narratives.”
Opponents of voter ID laws say lawmakers should instead focus on the success of the 2020 general election, which included expanded voting hours for casting a vote in person and via absentee by mail. Loperfido said lawmakers should see that as an example and think about additional ways to provide funding to counties and expand opportunities for voting.
Sen. Carl Ford, R-33, said he doesn’t understand how the law could be racially discriminatory as it allows voters to receive a photo ID for free. Ford added that IDs are needed for a lot of things, such as opening a bank account or checking into a hotel.
He said the 2013 law was better than the 2018 law, but “he’ll take what he can get.” The 2018 law, he said, opened up too many avenues for people to cheat the system, which is “what happens.”
“I believe most North Carolinians do what’s right,” he said. “But there’s always a handful.”
Ford said he anticipates such a law will be riddled with legal challenges because, in his view, the mantra among Democrats is “sue ’til blue.” Therefore, the case should be heard by the Supreme Court to be settled once and for all, he said.
Like Warren, Ford believes lawmakers will want to address voting irregularity and election integrity following the 2020 election, particularly with absentee by mail voting, leaving the issue of voter ID to take a back seat.
“I believe every legal citizen should have a voting right,” Ford said. “I want free and fair elections.”
For now, injunctions remain on the 2018 law, preventing it from being enacted as current law. At least another year may pass before the matter is settled once and for all. But if not ultimately overturned, the law could go into effect for the 2022 midterm elections.
Contact reporter Natalie Anderson at 704-797-4246.