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Déjà Vu: NC Supreme Court Rehears Arguments in Voter ID Case

Credit: iStock

Kelan Lyons

Chief Justice Paul Newby questions attorney Paul Brachman during Wednesday’s proceedings. (Photo: Screen grab from video stream)

For the second time in two days, the Republican-majority high court rehears arguments in a case decided by a Democratic majority just months ago

The North Carolina Supreme Court heard arguments Wednesday on whether a voter ID law passed in 2018 was intended to discriminate against prospective voters of color.

The high court issued a ruling in the case just three months ago, under a previous Democratic majority. That court ruled the voter ID bill was unconstitutional because lawmakers enacted the legislation “with an impermissible intent to discriminate against African American voters in violation of the North Carolina Constitution.” 

But then Republicans picked up two seats in last year’s elections, flipping the court’s partisan makeup to a 5-2 Republican majority, which then agreed to GOP lawyers’ request that they rehear the case. 

In oral arguments Wednesday afternoon, Pete Patterson, an attorney for Republican lawmakers, said the previous justices had erred in their ruling. He said that it had been decided “hastily,” since the case skipped the Court of Appeals and oral arguments before the state Supreme Court were expedited. 

Patterson argued that the state Supreme Court could rehear cases if some fact had been “misapprehended or overlooked.” The court should rehear, and change, its opinion on the voter ID law because it got it wrong the first time, he told the justices.

“So help me understand when any case would be final because in every case, there are two sides to the argument, and the side that loses believes that we ‘misapprehended’ the law and got it wrong,” said Associate Justice Anita Earls, one of two Democrats on the court and the author of the opinion issued on Dec. 16, 2022. “So, where do we draw the line? When do we not allow rehearing? If one side says we got it wrong, that’s sufficient to have rehearing and reverse our decision? How does that give us any finality in the law?”

Pete Patterson, the attorney representing Republican lawmakers

Patterson said the court can decide to rehear cases when a majority decides that something had been misapprehended or overlooked. 

Lawmakers’ intent 

Patterson was arguing for a law that was approved by legislators in 2018. That bill requires people to present photo identification in order to vote and have their ballot count. The ruling that Earls authored last year held the voter ID provision was unconstitutional.

Patterson argued that legislators were required to pass a voter ID law after voters approved a constitutional amendment requiring the identification. Legislators had not meant to discriminate against African American voters, he said, because everyone could cast a ballot under the law — as long as they presented a photo ID. He said there were provisions in the law allowing for free IDs at early voting locations, and that even those who don’t vote with an ID have 10 days to go to a county board of elections, get their photograph taken and have their ballot counted. 

In short, Patterson said lawmakers enacted the “narrowest possible racial disparity in terms of a voter ID law.” 

But, Earls pointed out, there’s a difference between being able to cast a ballot and having that ballot counted. She pointed to evidence from the trial court indicating that in a 2016 primary, voters were still disenfranchised by a previously enacted voter ID law, despite having the option of completing a “reasonable impediment declaration” so that they could cast a provisional ballot. A reasonable impediment is defined as the inability to get a photo ID because of a lack of transportation, disability or illness, lack of a birth certificate or required documents, work schedule, and family responsibilities.

More than 15% of reasonable impediment provisional ballots did not count in that election, Earls said. 

“This is not inference, this is evidence, that people who tried to use the reasonable impediments process did not have their votes counted,” Earls said. 

Patterson said the 2018 voter ID law was entirely different. It would have allowed those who were disenfranchised in the 2016 election to have more opportunities to have their votes counted. 

“It just does not bespeak discriminatory intent, racially discriminatory intent, to enact a voter ID law that allows everyone to vote,” Patterson said. 

Paul D. Brachman, attorney for the voting rights advocates, was also asked about legislators’ intent in passing the voter ID bill into law. Associate Justice Trey Allen, one of the Republicans who won a seat in last year’s elections, asked Brachman what evidence showed legislators had intended for the voter ID law to discriminate against voters of color. 

Paul D. Brachman, the attorney representing voting rights advocates

Brachman said there wasn’t any evidence suggesting legislators explicitly stated that they were trying to suppress the voting power of people of color. But, he said, case law allows judges to conclude discriminatory intent by looking solely at circumstantial evidence. 

“There’s nothing improper about that, precisely because we hope in 2023, that we are well past the point where legislators are going to stand up on the floor of the General Assembly and proclaim an intent to disenfranchise African American voters,” Brachman said. 

Brachman said the law allows people to cast a provisional ballot if they don’t have an acceptable form of ID on them when they vote. He seemed to follow Earls’s point, that casting a ballot is different from it counting, but Allen interrupted him before he could finish the thought. 

“So how is it relevant to us if administrators fail to follow the law properly?” Allen asked. 

Brachman said those defending the law are arguing that legislators couldn’t have had bad intent because of the law’s “reasonable impediment provision.” But if that provision doesn’t work, “that’s not very good evidence that the legislature couldn’t possibly have had any improper intent,” Brachman said. 

The day before 

Wednesday’s arguments were the second time this week the high court heard a case that had already been decided several months prior. On Tuesday the justices heard arguments in a redistricting case that, if Republicans get their way, would allow them to redraw state House and Senate districts, as well as congressional voting districts, for the 2024 election, without fear of a court finding them an unconstitutional partisan gerrymander. 

Just before those redistricting arguments, a “People’s Coalition” met outside the State Capitol Building to warn about the ways the new Republican majority could imperil hard-won gains on voting rights. Among the speakers was Deborah Dicks Maxwell, president of the state conference of the NAACP. Maxwell said North Carolina has been a “testing ground for voting suppression as far back as the poll taxes and 1971 redistricting tactics that were used to exclude Black voter engagement.” 

Maxwell drew a straight line between those efforts to keep suppress Black voters’ political power and the voter ID law legislators passed in 2018, which she said would make it harder for people of color to vote. Then she reminded those in attendance of the hard-fought battles won by their historical forebears — and how they won them. 

“Our rights were won through blood, sweat, tear and litigation,” Maxwell said. 

This story was written by Kelan Lyons, an investigative reporter at North Carolina Policy Watch, where this story first appeared.