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If NC Supreme Court Rules Against Photo ID Law, Republicans Say They'll Keep Trying

Erin Keever
A voter casts a ballot in North Carolina in this file photo.

In a 2-1 decision Friday, a three-judge panel of state Superior Court judges overturned North Carolina’s 2018 photo ID law. The reasoning was familiar: Judges said it was written to make it harder for African Americans to vote.

But the fight over photo ID is far from over.

WFAE’s "All Things Considered" host, Gwendolyn, Glenn talks with WFAE’s political reporter, Steve Harrison, about the ruling and what’s next.

Gwendolyn Glenn: Steve, before we talk about what’s next, can you give us a quick recap of this fight over the last decade?

Steve Harrison: Of course. Like you said, this isn’t the first go-around on voter ID. Republican lawmakers in 2013 enacted a stricter photo ID law that was struck down as unconstitutional in 2016. That was the famous ruling in which the 4th Circuit Court of Appeals said the GOP had targeted Black voters with “almost surgical precision” in deciding which types of ID can and can’t be used.

So Republicans took a different approach. They placed photo ID as a constitutional amendment on the 2018 ballot, and it passed pretty easily, with 55% of the vote.

And after that passed, the GOP quickly wrote the implementing language at the end of that year. They had lost their super-majorities in the legislature, so they worked quickly so they would have enough votes to override Democratic Gov. Roy Cooper’s veto before the new legislative members were sworn in in January.

That’s what this is about — that 2018 law.

Glenn: So how do the two photo ID laws compare? Republicans were criticized for the 2013 law. Is the 2018 law more lenient in terms of what IDs are allowed?

Harrison: The 2018 law does allow more forms of ID, like student IDs from North Carolina colleges and universities, local government employee IDs and free IDs issued by county elections boards.

And it’s been described by the National Conference of State Legislaturesas a “non-strict” law, in part because you can still vote with a provisional ballot even if you don’t have a photo ID.

In the trial earlier this year, it was shown that under the 2013 law there was a little more than a 5percentage point difference in the number of African Americans who didn’t have the required photo ID. That had shrunk to a little more than 2 percentage points under the 2018 law.

And the severity of that disparity is in the eyes of the beholder, right?

Democrats say that 7.6% of Black voters don’t have the required ID, compared to 5.5% of white voters.

Democrats said in trial that that’s nearly 40% more Black voters than white.

Glenn: And how do Republicans talk about that number?

Harrison: They say that, yeah, that 40% number is technically correct, but in their view misleading.

They point out that 92.4% of African American voters have the required photo ID compared with 95.3% of white voters.

Here’s attorney David Thompson who represented GOP lawmakers during the April trial.

Thompson: And if you take 93 and you divide it by 95 then you see that African Americans are 98% as likely to have the IDs.

Glenn: And so what’s next for this case? The North Carolina Supreme Court?

Harrison: Yes, almost certainly so. Republicans have said they will appeal to the Court of Appeals, and depending on the outcome of that, the losing side is going to likely appeal to the N.C. Supreme Court.

And as an aside, there is also a separate federal lawsuit on photo ID, and different state litigation challenging the Republicans' very ability to place the constitutional amendment on the ballot. The NAACP has argued that because that legislature had been elected under what a court later determined was an unconstitutional gerrymander, the GOP shouldn’t have had the super-majorities needed to place the photo ID referendum on the ballot.

Glenn: So what do Republican lawmakers do if they lose at the state Supreme Court?

Harrison: I think the quick answer is they will try again. I talked to GOP state Sen. Paul Newton of Cabarrus County, who chairs the redistricting and elections committee

Paul Newton (recording): Well, if at first you don’t succeed, then try and try again. You know we’re doing our best to balance election integrity and what we think is what North Carolinians want, which is confidence in the outcome no matter who wins.

Harrison: And by trying again, we could see a photo ID law that looks more like what Florida has, which is one of the least strict in the nation. Florida allows things like a debit card with a photo or even a neighborhood association ID.

The question is, would that pass muster? Florida courts have said that law is OK, but we don’t know what North Carolina courts would say.

But even if Republicans lose next year on this 2018 law, they aren’t going away.

Glenn: There are some Democrats nationally who have become more open to the idea of voter ID. Are you hearing anything like that in North Carolina?

Harrison: Earlier his year, West Virginia (U.S.) Sen. Joe Manchin proposed his voting rights bill, and he said it should contain voter ID as a nod to Republicans. Remember, that’s voter ID — not photo ID. But a lot of Democrats said that was OK, like Stacey Abrams of Georgia.

I asked Mitchell Brown, an attorney with the Southern Coalition for Social Justice, about whether common ground could be had on photo ID in North Carolina.

Mitchell Brown (recording): I would say no, because we can not bargain away the actual right to vote. Because what we’ve seen in North Carolina and other states is it has created hurdles for people to access the ballot box.

Harrison: And he came back to Democrats' point that photo ID isn’t needed because in-person voter fraud is not a problem.

They point to the state Board of Elections audit of the 2016 election in North Carolina where 4.8 million votes were cast. The state found there was just one case of in-person voter impersonation: a daughter who came to vote in the name of her deceased mother.

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Steve Harrison is WFAE's politics and government reporter. Prior to joining WFAE, Steve worked at the Charlotte Observer, where he started on the business desk, then covered politics extensively as the Observer’s lead city government reporter. Steve also spent 10 years with the Miami Herald. His work has appeared in The Washington Post, the Sporting News and Sports Illustrated.