State legislative leaders argue in a court filing this week that it’s too late for a federal judge to issue an order that would block the state’s photo voter identification law for the November election.
Voter ID supporters and critics await a ruling from US District Judge Loretta Biggs. She wrapped up a two-week trial in May in a federal lawsuit challenging voter ID. The state’s ID requirement was spelled out in 2018 in Senate Bill 824.
Biggs could declare that the law violates the US Constitution. If that happens, Republican legislators argue that Biggs should issue a stay of her ruling while they appeal.
“Absentee voting in the 2024 general election is set to begin on September 6, 2024, four weeks from now,” legislators’ lawyers wrote Monday. “The State Board [of Elections], which is now focused on last-minute election preparations, represented to the Court that counties would ‘need to know that they need to alter their absentee ballots by, essentially, July 1st.’”
“The State Board has not informed the Court otherwise, and that date passed a full month ago,” lawmakers’ lawyers added. “It is too late to enjoin S.B. 824 for the 2024 general election.”
“Plaintiffs, however, prefer to act as if election laws can change at a moment’s notice, with no administrative consequences or erosion of public confidence,” the court filing continued. “Indeed, even though S.B. 824 has been in force for over a year, Plaintiffs continue to label voter ID a ‘novel requirement.’”
“North Carolina voters and election officials have used the law for the 2023 municipal elections, the 2024 first primary elections, and the 2024 second primary elections. S.B. 824 is not novel. The 2024 general election is too close for the ‘[l]ate judicial tinkering with election laws’ that Plaintiffs desire,” lawmakers’ lawyers argued.
“Accordingly, if the Court enters judgment in Plaintiffs’ favor, the Court should simultaneously stay pending appeal its judgment and any injunction against enforcement of S.B. 824. Legislative Defendants would immediately appeal such a judgment and would have a likelihood of again prevailing on appeal,” the court filing added.
“In the hypothetical world that Legislative Defendants ask the Court to envision, the Court has issued a judgment in Plaintiffs’ favor prior to the November 2024 election, enjoining further implementation of the challenged provisions of S.B. 824,” ID critics’ lawyers wrote. “That judgment would also likely consist of detailed findings of fact and conclusions of law, defining Legislative Defendants’ discriminatory intent in crafting S.B. 824 and its devastating discriminatory impact on minority voters’ exercise of their fundamental rights. By asking the Court to stay a judgment that has not yet issued, though, Legislative Defendants have inexplicably put the cart before the horse.”
Legislative leaders appealed to the “Purcell principle” when requesting the stay. Based on a 2006 court precedent, the principle cautions federal courts against changing election rules during an election campaign.
“Asking the Court to engage in these hypotheticals is bizarre considering that ‘deference to the discretion of the District Court’ is at the heart of Purcell v. Gonzalez, the case central to Legislative Defendants’ principal argument,” ID critics’ lawyers wrote. “Even stranger, Legislative Defendants barely discuss the legal standard for a stay pending appeal and do not attempt to show why that standard is met.”
“Equally puzzling is Legislative Defendants’ near total failure to engage with the specific evidence of this case or the fact-specific aspect of Purcell in their brief. Instead, they offer assertions in an abstract application of Purcell, which they present as an inflexible, per se bar to the enjoinment of any election laws — even patently discriminatory and unconstitutional laws — in an amorphous and growing period prior to an election, without reference to any findings by the Court and irrespective of the risk of disenfranchisement of eligible voters,” the court filing continued.
“That view of Purcell and related caselaw is wrong,” ID critics argued. “Purcell is not an absolute, and unlike other cases involving stays of lower court orders that required redrawn maps or massive campaigns of fresh voter education close to an election, unrebutted evidence shown at trial in this case demonstrated that judgment for Plaintiffs here would alleviate rather than exacerbate confusion for voters and election officials alike, satisfying the core requirements of the Purcell principle.”
Lawmakers’ initially asked for a stay of any ruling against voter ID on July 1.
“A ‘bedrock tenet of election law’ is that, ‘[w]hen an election is close at hand, the rules of the road must be clear and settled,’” legislative lawyers wrote. “The Supreme Court’s ‘election-law precedents’ therefore ‘establish (i) that federal district courts ordinarily should not enjoin state election laws in the period close to an election, and (ii) that federal appellate courts should stay injunctions when … lower federal courts contravene that principle.’”
“This Purcell principle against ‘late-in-the-day judicial alterations to state election laws’ ‘not only prevents voter confusion but also prevents election administrator confusion — and thereby protects the State’s interest in running an orderly, efficient election and in giving citizens (including the losing candidates and their supporters) confidence in the fairness of the election,’” legislative lawyers wrote, quoting US Supreme Court Justice Brett Kavanaugh.
Lawmakers hope Biggs will uphold the 2018 voter ID law as constitutional. “But if the Court disagrees and enters judgment in Plaintiffs’ favor, the Court should stay its judgment and any injunction against enforcement of S.B. 824 pending appeal because the 2024 general election is already close at hand, and the ‘State’s election machinery is already in progress,’” according to the legislators’ court filing.
Scrapping voter ID at this point would be “inequitable,” lawmakers’ lawyers argued. “Enjoining enforcement of S.B. 824 for the 2024 general election would cause chaos and confusion.”
Biggs wrapped up her trial in the federal voter ID case in May. She heard from more than two dozen witnesses over nine days. She conducted a bench trial with no jury.
North Carolina required photo ID from voters during the 2023 municipal elections and during this year’s primary elections. Biggs’ ruling could determine whether voter ID remains in place for the general election in November.
Opponents have labeled the ID law as racially discriminatory. Among those who testified during the trial were left-wing activist the Rev. William Barber and Democratic state Reps. Robert Reives and Marcia Morey. Two former Democratic state senators, Floyd McKissick and Terry Van Duyn, also testified against the ID law.
Republican state legislators approved the ID law in 2018, just weeks after voters agreed to place an ID requirement in the state constitution. Lawyers defending the ID law during the trial pointed out its permissiveness compared to ID requirements in other states. Defenders argued that a law based on racially discriminatory intent would not have allowed voters so many options for casting ballots.
The lawsuit targets three portions of the 2018 voter ID law. First, the suit challenges the ID requirement itself. Second, critics oppose a provision allowing any voter to challenge another voter for failing to comply with the ID rule. Third, the complaint targets provisions expanding the use of partisan poll observers.
Republican state legislative leaders have defended voter ID. The State Board of Elections, with a 3-2 Democratic majority, also filed a brief supporting the ID law.
“Any voter ID law will have some impact when it is implemented,” the state board’s lawyers wrote. “However, Plaintiffs cannot show that S.B. 824 has a substantial enough impact to support this claim. That is because the ameliorative provisions found in S.B. 824 allow any voter to cast a ballot, with or without a photo ID, such that the burdens imposed by the law on voters who lack identification are minimal at best.”
Of the 1.8 million North Carolinians who cast ballots in the March 5 primary, 1,185 cast provisional ballots “for reasons related to photo ID,” according to the state board’s brief. Election officials ultimately counted more than half of those ballots. “The total that did not have their ballots counted in the recent primary was 477 out of 1,800,118 voters, or 1 in 3,774 voters, or 0.0265 percent of the voting population,” state board lawyers explained.
“The voter ID law had a similarly minimal impact on the 2023 Municipal elections,” according to the board’s brief.
Biggs issued an order on March 13 denying the State Board of Elections’ October 2021 motion for summary judgment in the more than five-year-old case. The elections board had argued that Biggs should reject the lawsuit without a trial.
State lawmakers joined the case in 2022, after the US Supreme Court confirmed their right to defend the voter ID law.
The federal trial had been scheduled twice before — in January 2021 and January 2022. In both cases, appeals delayed the case.
A stay issued in December 2021 placed the case in limbo. Plaintiffs challenging the ID law returned to federal court last year after the state Supreme Court’s April 2023 ruling allowed the ID requirement to move forward.
A 5-2 decision from the Republican-led state high court overturned a December 2022 ruling from the same court. Democrats had held a 4-3 Democratic majority when the court issued its initial ruling. Both decisions involved party-line votes from the justices.
Lawmakers approved the 2018 voter ID law weeks after NC voters enshrined an ID requirement in the state constitution. That amendment has faced its own legal challenge in state courts. A case targeting the amendment sits now with a three-judge Superior Court panel. The voter ID law can stand or fall legally regardless of the case challenging the state constitutional amendment.
Forward Justice filed the federal suit in December 2018 on behalf of the state NAACP and local NAACP chapters.
A year later, on Dec. 31, 2019, Biggs issued a preliminary injunction blocking the voter ID law from taking effect. In a 60-page opinion, Biggs cited North Carolina’s “sordid history of racial discrimination and voter suppression.”
Parts of the law “were impermissibly motivated, at least in part, by discriminatory intent,” wrote Biggs, appointed to the federal bench by former President Barack Obama.
Nearly one year later, a three-judge 4th US Circuit Court of Appeals panel unanimously reversed Biggs’ decision. Appellate judges determined that the trial court had “abused its discretion” when granting the injunction.
The 4th Circuit judges said Biggs was wrong to factor North Carolina’s earlier 2013 voter ID measure into her decision about the 2018 law.
“The district court here considered the General Assembly’s discriminatory intent in passing the 2013 Omnibus Law to be effectively dispositive of its intent in passing the 2018 Voter-ID Law,” wrote Judge Julius Richardson, an appointee of President Donald Trump. “In doing so, it improperly flipped the burden of proof at the first step of its analysis and failed to give effect to the Supreme Court’s presumption of legislative good faith. These errors fatally infected its finding of discriminatory intent. And when that finding crumbles, the preliminary injunction falls with it.”
Judges Marvin Quattlebaum, a Trump appointee, and Pamela Harris, an Obama appointee, joined Richardson’s opinion.
By the time the 4th Circuit struck down Biggs’ injunction, state courts had moved to block the 2018 voter ID law. The state Supreme Court’s April 2023 decision removed the final state court roadblock against voter ID.
The case already has attracted attention from the nation’s highest court.
Republican legislative leaders asked to intervene in the case to defend the voter ID law. Biggs said no in June 2019. The 4th Circuit also ruled against legislative intervention.
Once the US Supreme Court agreed to hear lawmakers’ arguments for intervention, Biggs issued her stay in December 2021. That order blocked a trial that had been scheduled for January 2022. Biggs put the case on hold pending action from the US Supreme Court “or until further Order of this Court.”
In June 2022, the U.S. Supreme Court ruled, by an 8-1 vote, that Republican legislative leaders would be allowed to intervene in the case. The nation’s highest court determined that Senate Leader Phil Berger, R-Rockingham, and House Speaker Tim Moore, R-Cleveland, should have the opportunity to represent legislative interests in defending the law.
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