The Supreme Court could decide as early as Monday whether to review an appellate court decision striking down North Carolina’s law requiring voters to show photo identification at the polls. The ruling by the Richmond-based 4th U.S. Circuit Court of Appeals was something of an outlier in the ongoing war over voter ID laws, finding not just that the statute disproportionately impacted minorities but that lawmakers had acted intentionally to suppress minority voters.
“Although the new provisions target African-Americans with almost surgical precision, they constitute inapt remedies for the problems assertedly justifying them and, in fact, impose cures for problems that did not exist,” U.S. Circuit Judge Diana Gribbon Motz wrote in an opinion signed by all three judges on the appeals panel. “Thus the asserted justifications cannot and do not conceal the State’s true motivation.”
If the high court decides not to hear the case, it will leave North Carolina without a photo ID law. If the justices do take the case and adopt the reasoning of the appeals court, it could jeopardize voter ID laws elsewhere — particularly in Southern states that previously had to get advance go-ahead from the Justice Department under the Voting Rights Act to make even minor changes to voting rules.
The Public Interest Legal Foundation, which filed a friend-of-the-court brief in favor of North Carolina’s law, argues that the justices should lay down a clear marker that states are within their rights to require identification to ensure the integrity of elections.
“Voter ID works just about wherever it’s tried,” said Logan Churchwell, a spokesman for the group.
North Carolina passed the law in 2013. In addition to the ID requirement, it also eliminated same-day voter registration, scaled back early voting dates, prohibited voters from casting ballots in the wrong precinct, and eliminated straight-ticked voting, requiring voters to mark their choices in each race individually. It provided a free photo ID card for anyone who stated he could not obtain a driver’s license.
Even before the Supreme Court weighs in on the appeal, Democratic Gov. Roy Cooper could try to short-circuit the law by withdrawing the appeal. He refused to defend the law in court when he was the attorney general.
“Gov. Cooper continues to oppose this law and believes we should make it easier, not harder, for people to exercise their right to vote,” gubernatorial spokeswoman Noelle Talley told WRAL-TV in Raleigh last week. “We’re currently reviewing this case inherited from the prior administration.” Attorney General Josh Stein, also a Democrat, issued a similar statement.
Even if both pull out, though, the Republican-controlled legislature could appoint its own attorney to pursue the appeal.
Meanwhile, it is possible the federal government might switch sides, as well. The Justice Department of former President Obama had been supporting the plaintiffs. But President Donald Trump’s administration might reach a different conclusion.
The Justice Department filed its brief in support of the plaintiffs one day before Trump’s inauguration — 11 days before the deadline. It is similar to an attempt by Obama’s outgoing administration to kill a lawsuit accusing the IRS of improperly targeting conservative nonprofit groups.
In its legal brief in the North Carolina case, the Public Interest Legal Foundation argues that the appeals court applied the wrong standard in evaluating the state’s law. The judges used a standard under the Voting Rights Act that placed the burden of proof on North Carolina and other states tainted by discriminatory practices in the past to show that electoral system changes were race-neutral. But the Supreme Court struck down that portion of the Voting Rights Act in 2013, holding that the formula for determining whether jurisdictions should be subject to so-called “preclearance” was outdated.
As a result, attorneys J. Christian Adams and Kaylan Phillips argue in their brief, the appeals court should have used the legal standard that applies to every other state under the Voting Rights Act. That would have put the burden on the plaintiffs to demonstrate discriminatory intent.
“That standard requires a far more robust showing than a statistical demonstration that a given minority might be less likely to be able to vote at a certain time, use a particular voting practice more often than non-minorities, or possess certain types of documentation at different rates,” the brief states.
Churchwell, the spokesman for the Public Interest Legal Foundation, predicted the issue will not go away, even if the justices pass on taking the case. Different courts have used different standards to evaluate voter ID laws, he said. What’s more, he added, issues like redistricting that must take place every 10 years also could be affected.
“If they don’t take this case, we will continue to have that split,” he said. “This is bigger than North Carolina. It’s bigger than voter ID … If this ruling takes hold, it’s going to cause a whole lot of problems in a few years when redistricting comes along.”