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North Carolina's Voter ID Battles

Q&A with attorneys Irving Joyner and Gerry Cohen

by: Tristan Dufresne,

The political battle over the future of photo ID requirements for North Carolina voters took another turn this week when a federal judge announced that her order will halt enforcement of the contested requirements until a lawsuit brought by state chapters of the NAACP is resolved.

U.S. District Court judge Loretta Biggs first blocked implementation of photo ID requirements for N.C. voters on December 31, 2019 in the case of NAACP v. Cooper. According to CBS News, “State election officials were planning to expand efforts to educate voters about the ID law within days,” prompting a notice from Biggs’ federal court stopping such efforts. A formal order will be released in the next week; her decision in 2019 had already ordered the state government “take all steps necessary to halt any mailings and other communications…which state that photo ID will be required for 2020 elections.”

The legislation at issue, Senate Bill 824, enforces a 2018 ballot referendum to amend the state constitution to require photo IDs when voting. SB 824 was passed in December of 2018 by Republicans over Governor Cooper’s veto, after about 55 percent of N.C. voters supported the amendment.

As recently reported by the Sundial, a three-judge panel from the N.C. Court of Appeals also temporarily blocked the General Assembly’s voter ID law, in the case of Holmes v. Moore. N.C. House Speaker Tim Moore, a Republican, called the judges a “liberal, activist appeals court panel…tread[ing] on the will of voters in this state.”

Neither Biggs’ federal injunction nor the state appeals court’s injunction overturns SB 824, but they do stop it from taking effect until a full trial decides if the law is invalid.

Defense lawyers arguing on behalf of Republican leaders of the state’s House and Senate have asked for an en banc review of the state panel’s ruling, which would mean all 15 appeals court judges would decide as a group to either uphold or reverse the latest injunction by March 26.

North Carolina's balance of Republican, Democrat and unaffiliated "swing" voters makes it a key battleground state in elections for national office. The states’ GOP and Democratic parties have been clashing for years over power within the state, with the next battles coming with the 2020 gubernatorial and legislative elections.

The Piedmont Sundial interviewed two North Carolina attorneys who have weighed in on the issue of voter ID requirements during the evolution of this statewide political battle, and their responses are presented below primarily concerning the state-level Holmes v. Moore case.

Professor Irving Joyner, who teaches at North Carolina Central University Law School, was one of the attorneys who successfully argued in court against a similar state law in 2013, which the federal Fourth Circuit Court of Appeals ultimately struck down in 2016 for restricting African-Americans from voting “with almost surgical precision.”

Gerry Cohen is a member of the Wake County Board of Elections, and a North Carolina elections law expert. He is a former special counsel to the General Assembly.

The following Q&A was edited for clarity and brevity. The interviewees were interviewed separately.

What are your impressions of the plaintiffs’ demand for an en banc review of the three-panel ruling?Joyner: I think it’s a delay tactic on the part of the state. At this crucial junction [during election season], the legislature should just leave it alone and let people vote, and then come together and work out a way to resolve the issues the court found to exist with the formulation of the legislation that is in place now. However, they want to play it out in the hopes of a win, but we have decisions from the federal court which issued an injunction and now we have an opinion from the Court of Appeals which also imposed an injunction. It ought to be clear that the narrative that the state is trying to present is not one that is supported by the facts.Cohen: Those kinds of reviews were only authorized by the legislature four or five years ago, but that’s certainly the defendants’ right to ask for one. It may be the first time, or close to the first time, this has ever happened.

Since voters passed an amendment to require photo IDs for voting, doesn’t the legislature have to make that into law? 

Joyner: Well yes, the amendment has to be addressed and that’s not at issue in [Holmes v. Moore]. There isn’t an attack in this case on the amendment itself; it is on the formulation of the legislation that was designed to implement the decision. And that formulation almost tracked word-for-word exactly with what the [federal] Fourth Circuit Court of Appeals had declared to be racially discriminatory [in 2016]. And now the [General Assembly] comes back and issues legislation that is for all practical purposes exactly the same thing that court has declared to be illegal, with no attempt on its part to address the defects the court found in its 2016 decision.

Cohen: Well, remember that the amendment has a provision that says while the legislature must pass a voter ID law, it also says “with exceptions.” There are other provisions in the [state] constitution which require elections to be free and there to be full protection, etc… [The law] still has to be constitutional. For instance, one of the things the court criticized was the fact that if you use this “reasonable impediment affidavit” because you didn’t have an ID, that would require a provisional ballot. Which, as an election official, I know is a 15-minute interview between the voter and the election official. And then that ballot isn’t counted until 13 days later. I testified at the legislature on the implementation bill in February and said there’s no reason to require a provisional ballot if the voter fills out the affidavit because as a matter of a law they are entitled to vote. It’s time-consuming and burdensome.

Is there a compromise to be had here? 

Joyner: That I don’t know. What I think the legislature would be well-advised to do is to sit down with the different stakeholders and come up with an approach that would make the future enactment not racially discriminatory, but they have refused to do that. And it would seem to me that, [when] they have lost every case that’s been presented in both state court and federal court, common sense ought to tell them to sit down and get some guidance on how they can do a better job.

Cohen: Well, like I said, a provisional ballot is like being sent to the principal’s office, if I can make an analogy. The legislature could easily say, “Okay, you need to fill out the affidavit, but then you vote with a regular ballot like everyone else,” as opposed to putting that scarlet letter on you. I think the General Assembly can make changes in the legislation and meet the court’s objections.

So, you don’t think that any version of a voter photo ID law is inherently discriminatory? Is there a way to write one that isn’t? 

Joyner: Everything is possible. Yes, it is possible to do it. The legislative goal is more than trying to come up with some method of ID, it is to suppress or make difficult the right of people to vote. And if there is a way to deal with an identification procedure that does not follow that goal, then they should. But first, they haven’t come up with one, and second, they won’t even consult with anyone to try and figure out how to do it.

Cohen: If it does not impose additional burdens on the voter, yes. For instance, one of the things the law allows is for the Board of Elections to go out and issue IDs, as opposed to [potential voters] having to come into the Board office to do that. The Wake County Board of Elections office is four or five blocks from a bus route and is not particularly convenient. We had even talked about going to homeless shelters and issuing IDs. Being proactive and that kind of thing. I’m not a proponent of the law, and I voted against the amendment but it’s my job now to follow the law as an administrator. I do think it can be rewritten to not be discriminatory but there are discriminatory elements to it now.

There are eight Democrats and seven Republicans on the appeals court, and they all will be involved in reviewing the ruling if an en banc review occurs. Do you foresee the review decision coming down along party lines? 

Joyner: Well, I don’t think that it should. I think, based on the legal merits, that both Republicans and Democratic judges will reach the same conclusions because it is based on precedent from the U.S. Supreme Court, the federal circuit court and other authorities that have ruled on this issue. So, if there is an application of the law as it presently existing, then [the] three-judge panel’s decision [an injunction] is going to be upheld.

Cohen: Remember, the injunction was to stop implementation of this law pending a trial on the merits. So, one of the things the court looks at is the equities — who bears the burden and the harm? It would seem to me that there is harm to the voters to work under a law that may be unconstitutional. It doesn’t seem that holding back the law pending a trial does any damage to the defendant, but I don’t know when that trial would be. If the court eventually held [the law to be] constitutional when it’s six weeks before the election, it becomes very hard to implement.

If the en banc panel reverses the ruling, what’s the next step? 

Joyner: I would think that if there is a reversal that’s going to get appealed to the state Supreme Court. In fact, no matter what happens with the panel, it is going to be appealed because the legislature is determined to have its day on satisfying the legal premise that they are promoting.

Cohen: If the injunction is reversed, the case would still come to trial, but meanwhile the law might be effected again for the November election. It depends on what the federal court does also.


Lawyers for the Southern Coalition for Social Justice, who are working on behalf of the plaintiffs in Holmes v. Moore, issued the following statement to the Sundial:

“While the Southern Coalition for Social Justice respects the right of legislative leaders to request an ‘en banc’ hearing of Holmes v. Moore, we firmly believe the initial appeals court ruling is correct. Since such hearings became permissible in 2016, not a single request for a hearing by all 15 judges has been granted, and we think it is unlikely one will be in this case. The judges’ unanimous ruling issued last week provided both details of the substantial evidence showing that S.B. 824 was enacted with discriminatory intent as well as the strong legal precedence by which the decision was reached. We believe the appeals court decision, and the voter protections it put in place, will be sustained.”

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