The last time a North Carolina law requiring voters to present photo identification at the polls was challenged in court, it did not fare so well.
In 2016, a three-judge panel of the U.S. 4th Circuit Court of Appeals declared the 2013 legislation drafted by the Republican-controlled North Carolina General Assembly unconstitutional and found it targeted African American voters with "almost surgical precision."
That 2013 law was drafted by GOP state lawmakers in the wake of the U.S. Supreme Court's decision in Shelby County v. Holder, a landmark ruling that had a seismic impact on voting rights. Until Shelby, North Carolina and other states with a history of racial discrimination and voter suppression had to pre-clear election laws and practices with the federal government. The Supreme Court essentially gutted that requirement and relieved states like North Carolina of the burden of obtaining federal pre-clearance for changing voting laws.
The 2013 law that imposed a photo ID requirement on North Carolina voters also shortened the early voting period and eliminated same-day registration.
Not to be deterred, in 2018, Republican state lawmakers, still holding a veto-proof majority, with a Democrat ― Roy Cooper ― in the governor's mansion, drafted a new photo ID bill. And this bill sought to fill in holes found in the 2013 legislation. The 2018 measure expanded the list of approved IDs voters could present at the polls, including student IDs from North Carolina colleges and universities, local government employee IDs, and free IDs issued by county elections boards.
Nonetheless, lawyers will be in state court again this week arguing little has changed — and the battle over this photo ID law comes as voting rights advocates challenge restrictive elections laws across the country, from Georgia to Arizona.
'This Law Is Still Discriminatory'
"Without any new evidence, any new data they passed a very similar statute," said Mitchell Brown, counsel with the Southern Coalition for Social Justice, referring to North Carolina's newer photo ID law. The organization is representing six voters challenging the constitutionality of the legislation. The plaintiffs range from college-age to 70-plus and all allegedly would suffer some hardship in trying to comply with the photo ID requirement.
One plaintiff, for example, is Paul Kearney, a 69-year-old Black man, from Warrenton. In 2016, during the March presidential primary, according to the lawsuit, Kearney went to his polling place but had forgotten his photo ID. The March 2016 primary is the one cycle for which a photo ID requirement, under the 2013 law, had been in effect.
It was late in the day and the polls were closing soon, so Kearney filled out a provisional ballot. The lawsuit claims poll workers failed to inform Kearney that to get his ballot counted, or cured, he still needed to go to his county elections board later to show his valid ID. Kearney's vote, therefore, went uncounted.
Another plaintiff, the lawsuit alleges, would face an undue burden in trying to get a free, state-issued ID because he is disabled and his elections board office is in downtown Raleigh where parking and access is difficult. Another plaintiff is a 78-year-old Black man in a rural North Carolina town with an old, expired South Carolina driver's license, who could not get the license replaced because he has been unable to obtain his birth certificate due to a clerical error.
"This law is still discriminatory," Brown contended. "There is an issue with Black voters being able to access this ID."
'We're Not Putting Our Finger On The Scale'
The voting rights advocacy group Democracy NC attempted to gather data to demonstrate the disparate impact of the state's 2013 photo ID requirement.
According to Democracy NC executive director Tomas Lopez, in the March 2016 primary, the one election with the 2013 law in effect, African American voters made up 23% of total turnout for the presidential contest, which was more than 2.3 million people. But Lopez said African American voters made up a greater portion, 34%, of the more than 1,400 voters who had to fill out a reasonable impediment form to cast a vote without having an approved photo ID.
"I do not know a single Republican legislator in North Carolina that wants to disenfranchise anyone," said state Sen. Paul Newton (R-Union, Cabarrus), who co-chairs the Redistricting and Elections Committee. Newton pointed out that in elections-related legislation passed last year, lawmakers added a provision that would allow voters to present public-assistance IDs at the polls, as long as they have photos.
Newton also has sponsored legislation this session to fund mobile units that could provide photo IDs for voters in remote parts of the state or who have transportation challenges. But the bill also would eliminate a grace period for counting absentee mail-in ballots post-marked by — but received up to three days after — Election Day. Since the pandemic, interest in mail-in ballots has shot up, especially among Democrats.
"We're not putting our finger on the scale and trying, to, by process, gain an advantage for Republicans," Newton maintained.
Finding A Balance
Supporters of photo ID cite election security and integrity as a primary reason for such measures.
"Are we restricting voting versus are we protecting the ballot box?" asked former Gov. Pat McCrory, a Republican, who signed the 2013 photo ID measure into law. "That's the balance I think we all need to look for."
In North Carolina, since 2015, seven cases of voter fraud involving impersonation have been referred to prosecutors by the State Board of Elections. That's out of millions of votes cast, including 5.5 million last November and 4.7 million in the 2016 general election.
To voting rights advocates, backers of photo ID are just cloaking voter suppression measures as a means of protecting election integrity.
"It isn't just about the interests that weigh in favor of integrity and security," said Sean Morales-Doyle, Deputy Director of Voting Rights and Elections at the NYU School of Law's Brennan Center for Justice. "It is also about what we're weighing them against and there's really so few things that should weigh as heavily on the other side of the scale as voting rights."
More than 55% of North Carolina voters in 2018 approved an amendment to the state constitution requiring photo ID at the polls. But the lawsuit is challenging the enabling legislation that followed the amendment.
Republicans rammed that legislation through a special session convened in December of 2018 just a month after the midterm elections. That November, Democrats picked up enough seats to break the GOP veto-proof majority for the 2019 legislative session starting the following January.
"When you have a legislature pass voter ID law during a lame duck session, that, in my mind, is a red flag," said SCSJ Attorney Mitchell Brown.
And Brown said such legislative maneuvering should raise a red flag for the court, too.
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