North Carolina Photo ID Requirement Challenge (Holmes)

 On Wednesday, March 15, the North Carolina Supreme Court reheard Holmes v. Moore. The court first heard from the Republican legislators who argued that the North Carolina Supreme Court’s December 2022 decision blocking S.B. 824 should be overturned because the underlying decision from the trial court was “unsound, both legally and factually.” They also argued that the facts of the case do not prove racial discrimination, there is no “direct evidence” of discriminatory intent, the Legislature was not afforded good faith by the trial court and S.B. 824 should be implemented. 

First, the Republican legislators argued that the trial court was incorrect when it found that S.B. 824 was enacted with discriminatory intent. Justice Morgan listed the factors that led the trial court to its finding that the law was impermissible under its standard of review: “The earlier unconstitutional voter ID law [with similar provisions to S.B. 824], the earlier aspect of the legislators who passed that law now supporting the recent law that’s in front of us here, the legislative history on voter ID in this case, the law’s passage in a legislative lame duck session, the discriminatory data [and] the expert testimony.” Morgan asked: “How many more factors do you need in this case for the presumption to have been rebutted that the Legislature had discriminatory intent here?” In response, the Republican legislators argued that “the record in this case does not support a finding of discriminatory intent under any standard of review.” 

The Republican legislators also argued that the trial court did not presume enough “good faith” on the Legislature’s behalf. The Republican legislators asserted that “there is no person in North Carolina that the plaintiffs have identified who, according to the terms of S.B. 824, will not be able to vote. And it just does not speak [to] racially discriminatory intent to enact a voter ID law that allows everyone to vote” given “the availability of the free IDs.” To this point, Morgan asked about the evidence at the trial court level that showed that “African Americans disproportionately have public assistance IDs” yet public assistance IDs were originally not included in the law. Morgan read from the trial court’s decision: “The lack of the Legislature’s allowanc​​e of public assistance IDs was telling” and “it was also ‘particularly suspect because legislators could have reasonably surmised that those forms of ID would be hailed disproportionately by African American voters.’” To this, the Republican legislators replied that the example of the Legislature not allowing public assistance IDs was “a primary example of the failure to afford good faith to the Legislature” because public assistance IDs were later added but “what the trial court said was we’re not going to credit the General Assembly for that…[The trial court] presumed bad faith for not including them in the first place.” 

Next, Justice Berger asked if “direct evidence of discriminatory intent” existed in this case. The Republican legislators replied that “absolutely nothing” showing direct evidence existed in the record. The Republican legislators concluded their argument by asserting that “the General Assembly was blamed for seeking racial data” when it enacted a similar photo ID law, House Bill 589, that was struck down by a federal court, “so this time the General Assembly [did] not seek racial data and that’s held against them again; it’s like a Catch-22. Regardless of what they do, it’s going to be felt to be indicative of racially discriminatory intent.” 

On the other side, the voters argued that the North Carolina Supreme Court’s December 2022 decision was correctly decided and S.B. 824 should remain blocked. They asserted that the trial court’s findings were correct and that under the standard of review applicable to this case, they did not need to show “direct evidence” of discriminatory intent, only that the law had a discriminatory impact. The voters rebutted the Republican legislators’ argument that the framework for proving racial discrimination was incorrectly applied by explaining that improper intent “ doesn’t have to be the only factor” needed to successfully block the law. Instead, “under the totality of the evidence standard,” applied by the trial court, “improper discriminatory intent was a factor motivating the passage of S.B. 824.” 

Justice Allen asked if “direct evidence” of racially discriminatory intent existed in this case and the voters responded that while direct evidence (such as a legislator giving a racially discriminatory floor speech) was not presented, that “does nothing to undermine the correctness of the trial court’s judgment or this court’s ruling,” particularly given that we “are fortunately well past the time where we expect to find blatant statements of racially discriminatory motive in the legislative record.” Berger asked “at what point could this identical legislation be passed by a future Legislature?” To this, the voters replied that “you need to look at everything and so if there were a subsequent attempt…to pass a future voter identification law, we would again need to look at all of the circumstantial evidence and see how that bears on whether or not there’s an inference of discriminatory intent.” The voters concluded their argument by stating that “a trial court’s finding is not wrong just because you might also be able to draw a different conclusion from the facts. That’s all the [Republican legislators] are asking this court to do: draw their preferred inference from the facts.” 

On Oct. 3, 2022, the seven of justices of the North Carolina Supreme Court heard oral argument regarding the legislative and state defendants’ appeal of a decision by a trial court to permanently block Senate Bill 824 — a law that provides a narrow list of qualifying photo IDs acceptable for voting in the state — because it was enacted with the the intent, at least in part, to discriminate against African American voters in violation of the North Carolina Constitution.

First, the court heard from an attorney representing the legislative defendants who appealed the trial court’s decision to block S.B. 824. The attorney who defended S.B. 824’s strict photo ID requirements for voting began his arguments by asserting that “the Superior Court’s determination that S.B. 824 was motivated by a desire to entrench Republicans by targeting African American voters is unsupportable both as a matter of law and as a matter of fact.” He contended that because four Democratic legislators voted in support of the final version of the law, there is no evidence to show that the General Assembly was intent on “entrenching Republican” power when it passed the law. When asked by Chief Justice Paul Newby whether there are findings of fact from the Superior Court that the legislative defendants take issue with, the attorney responded that the Superior Court was incorrect in stating that the free state-issued voter ID was eligible for one year and clarified that it is actually eligible for 10 years. Furthermore, the attorney added that the lower court “presumed bad faith on behalf of the General Assembly” on the basis of a “past discriminatory act.” In this instance, the attorney was referring to House Bill 589, a previously enacted and even more stringent photo ID law passed by the North Carolina Legislature in 2013 that was struck down by the 4th U.S. Circuit Court of Appeals for unconstitutionally discriminating against Black voters. The attorney asserted that unlike H.B. 589, S.B. 824 contains a “sweeping reasonable impediment provision” that allows voters to cast  provisional ballots if they lack one of the acceptable forms of identification mandated by S.B. 824. He proceeded to list other provisions of S.B. 824 that he claimed served as counter-evidence against the plaintiffs’ contention that the law was passed with a “racially discriminatory purpose.” The attorney concluded by stating that the plaintiffs have “not shown that there is anybody who would not be able to vote under this law.”

Next, the court heard from an attorney from the North Carolina Department of Justice representing the state defendants (including the State of North Carolina as well as the North Carolina State Board of Elections) who also argued in defense of S.B. 824. The attorney from the North Carolina Department of Justice  commenced her argument by stating that “the trial court erred when it ruled that there the photo ID law had a discriminatory impact on voters.” When asked by Justice Anita Earls about the trial court’s finding that African American voters are more likely than white voters to lack a form of qualified ID under S.B. 824, the attorney responded by stating that “the existence of some level of inconvenience in the in the voting process does not prove discriminatory impact.” Next, Earls turned to discussing whether the North Carolina Legislature passed the challenged law with discriminatory intent. She noted that “the reason why it was significant that so many legislators [that voted for S.B. 824] had voted on the prior photo ID bill [H.B. 589], was because [they had] knowledge about the impact on voters and who had IDs and… they knew that African American voters were more likely to lack an [acceptable] ID under the law.” Furthermore, Earls stated that “ultimately, under Arlington Heights, and under the disparate impact prong…it doesn’t matter whether the Legislature ultimately was right or wrong. It was what was in their minds. What were they intending?” The attorney for the North Carolina Department of Justice replied to this line of questioning by stating that when you look at the disparate impact analysis of the challenged law, it is “clear that there is no Equal Protection violation.” She finished by asking the court to reverse the trial court’s ruling. 

Next, the court heard from the attorney representing the plaintiffs — six individual voters — on behalf of whom the lawsuit challenging the constitutionality of S.B. 824 was originally brought. The attorney started off by recounting that “following years of litigation…a majority of a three-judge panel concluded that Senate Bill 824 violated the North Carolina Equal Protection Clause because it was enacted with the intent to discriminate against African American voters.” Following his opening remarks, the attorney was asked by Justice Philip Berger, “What in the plain language of the law shows discriminatory intent?” The attorney responded to this question by explaining that one must look at the summation of multiple, holistic factors including the history of racially polarized voting in North Carolina in which “African Americans tend to strongly favor Democrats, [therefore creating] an incentive for Republicans to discriminate against them for political payoffs.” Furthermore, the attorney expounded on analysis from one of the plaintiffs’ expert witnesses, Professor Kevin Quinn, who found that in North Carolina, “African Americans lack [eligible photo IDs] 1.4 times more than whites and found that nearly 7% of African Americans lack the [accepted forms of] ID, which equates to over 100,000 voters.” The attorney closed out his arguments by stating that the harm caused by S.B. 824 “falls on a particular class” that is beset by “a history of [racial] discrimination” that cannot be overlooked. He reiterated that under S.B. 824, “voters are being treated differently and that the fundamental right to vote for certain individuals is being burdened.”

Finally, the court once again heard from the attorney for the legislative defendants who gave closing arguments in defense of S.B. 824. He wrapped up his arguments by rehashing his contention that S.B. 824 was not passed to “entrench Republican power” because four Democrats voted for final passage of the bill. He asked the court to reverse the trial court’s decision or at a minimum, remand (meaning, send back) the case to the lower court for application of the “proper standard.”