Ahead of oral arguments before the U.S. Court of Appeals for the 4th Circuit, Gov. Roy Cooper (D) urged the judges to prevent the measure, known as S.B. 824, from taking effect over objections from Republican legislative leaders.
“Lifting the injunction now would be disastrous,” lawyers for the governor told the judges in court filings. “The brunt would be borne by the same voters whom S.B. 824 targeted for disenfranchisement in the first place: minority voters who are both least likely to possess photo IDs that satisfy S.B. 824 and most vulnerable to COVID-19.”
The photo ID requirement is the latest in a series of North Carolina election measures scrutinized in court. The law was passed after the 4th Circuit struck down a separate set of voting rules that the court said in 2016 deliberately undercut the political power of Black voters and “target African Americans with almost surgical precision.”
The three judges hearing the case — Pamela Harris, Julius N. Richardson and A. Marvin Quattlebaum Jr. — asked lawyers on both sides how they should account for the state’s political past when considering the current law.
“I understand that we can’t just ignore that. At the same time,” said Harris, a nominee of President Barack Obama, “the fact that a legislature passes one voter law with a discriminatory intent doesn’t forever disable a legislature from passing a voter ID law.” And she said, “this one is better. It has these ameliorative features that the prior law didn’t have.”
Lawyers representing the North Carolina State Conference of the NAACP told the court that the state’s “unprecedented recent history of racially discriminatory election laws casts a long shadow” over the new requirement.
“This Court cannot shut its eyes to this sordid history” of barriers to voting, according to the NAACP, represented in court by John C. Ulin.
The state board of elections and Republican legislative leaders defended the requirement, telling the court that the provision does not discriminate. The law “is a state-of-the-art voter ID law that seeks to secure the State’s elections and bolster voter confidence while at the same time ensuring that all registered voters are able to cast a vote that will count, with or without ID,” attorney David H. Thompson wrote on behalf of Senate President Phil Berger (R) and House Speaker Tim Moore (R).
Olga Vysotskaya de Brito, the lawyer for the state board, said North Carolina’s law is “lenient” compared with other similar laws upheld by courts in Texas, Virginia and South Carolina.
Eighteen states, including North Carolina, ask for a photo ID to cast ballots, according to the National Conference of State Legislatures. Seventeen other states also accept non-photo identification such as a bank statement with a name and address.
The 4th Circuit is reviewing a district-court decision that said the North Carolina photo ID law would likely have a disproportionate impact on African American voters who “could be deterred from voting or registering to vote because they lack, or believe they lack, acceptable identification and remain confused by or uninformed” about the law.
The 2018 law was enacted after a supermajority of the legislature overrode the governor’s veto. North Carolina voters also approved a ballot measure creating a constitutional requirement that voters present a photo ID. The amendment did not specify the types of identification that would be accepted.
There is disagreement between the two parties about the impact of the ID law on access. But civil rights groups estimate that hundreds of thousands of voters in North Carolina do not have qualifying IDs.
Quattlebaum asked the NAACP’s lawyer how the North Carolina law compares with others upheld in court.
“Putting aside historical facts, it doesn’t seem like you could really say this law would be unconstitutional,” said Quattlebaum, a nominee of President Trump. “Am I right or wrong?”
Ulin said other states, such as Virginia and Alabama, allow a far broader list of acceptable forms of identification, such as any student ID.
Richardson, also a Trump nominee, expressed skepticism that the court could “infer some type of discriminatory intent” from North Carolina’s decision to exclude local public housing IDs, which are not issued by the state and do not include a photo.
Ulin said the way the legislature narrowed the list of permissible IDs had excluded those known to be disproportionately held by Black and Latino voters.
Thompson, the lawyer for state lawmakers, emphasized that citizens without proper identification can cast provisional ballots and that free, no-documentation-required IDs are available throughout the state.
But Harris seemed troubled that those additional steps could burden voters.
“As a voter, it’s obviously much easier to vote if you have an approved ID,” she said. “It is an extra amount of work. If you have to go through that, you have made it harder to vote.”