Federal judge could thwart voter ID again

Most voters in North Carolina expect to present photo identification at the polls this fall. That’s especially true if they cast ballots in last year’s municipal races or this spring’s primaries. State law required voter ID for those elections.

Yet voter ID’s future remains in doubt in the Tar Heel State, thanks to one federal judge.

She could rule that voter ID violates the US Constitution. Depending on her timing, higher courts might shy away from intervening.

Top legislative leaders who defend the voter ID law filed a motion with the judge this month. They aim to avoid confusion about ID requirements for the fall. They’ve asked the judge to stay any ruling against voter ID as appeals move forward.

A recap of recent voter ID history might prove helpful.

The 4th US Circuit Court of Appeals struck down North Carolina’s last voter ID requirement in 2016. Enacted in 2013, voter ID was linked with other election changes. The same law cut early voting by a week and limited voters to casting ballots in their assigned precinct. The 2013 law also ended same-day voter registration. Appellate judges struck down the entire package.

Lawmakers tried again in 2018.

First, they asked the public whether voter ID should become part of the state constitution. More than 55% of those heading to the polls said yes. That was despite the Democratic Party’s campaign urging voters to say no to voter ID and five other amendments on the ballot that fall.

Weeks after the election, the General Assembly approved a law to implement the new constitutional requirement. Though approved in December 2018, the ID law did not take effect until 2023. Delays stemmed from multiple court battles.

Critics of voter ID attacked the new law through three lawsuits. Complaints in state and federal court challenged the law itself, while a separate state court suit challenged the constitutional amendment. (The suit targeting the amendment could not have blocked the ID law. It could have undercut lawmakers’ justification for pursuing voter ID.)

On the federal level, US District Judge Loretta Biggs issued an injunction on Dec. 31, 2019. She blocked voter ID from taking effect in 2020. In a 60-page opinion, Biggs cited North Carolina’s “sordid history of racial discrimination and voter suppression” as evidence against the ID law.

Nearly a year later, the 4th Circuit overruled Biggs. Appellate judges determined the trial court had “abused its discretion” when granting the injunction.

By that time, state court panels led by Democrats had rejected voter ID. But an April 2023 decision from the state Supreme Court, with its new 5-2 Republican majority, reversed course. The high court allowed voter ID to move forward.

Critics then turned their attention back to Biggs’ courtroom. She had scheduled voter ID trials for January 2021 and January 2022. Appeals thwarted both trial dates.

With voter ID in effect in 2023, Biggs agreed to reopen the federal case. She issued an order this spring rejecting the State Board of Elections’ request for summary judgment. That would have meant skipping a formal trial.

Instead Biggs spent roughly two weeks hearing from parties on both sides of the dispute, wrapping up her trial in May. Rather than ruling at the end of the trial, Biggs called for ID critics and defenders to submit more paperwork.

As state lawmakers responded to Biggs’ early July deadline, they filed their motion seeking a stay of any ruling against voter ID.

“A ‘bedrock tenet of election law’ is that, ‘[w]hen an election is close at hand, the rules of the road must be clear and settled,’” legislative lawyers wrote. “The Supreme Court’s ‘election-law precedents’ therefore ‘establish (i) that federal district courts ordinarily should not enjoin state election laws in the period close to an election, and (ii) that federal appellate courts should stay injunctions when … lower federal courts contravene that principle.’”

When federal courts avoid changing election rules close to an election date, they comply with the Purcell principle.

“This Purcell principle against ‘late-in-the-day judicial alterations to state election laws’ ‘not only prevents voter confusion but also prevents election administrator confusion — and thereby protects the State’s interest in running an orderly, efficient election and in giving citizens (including the losing candidates and their supporters) confidence in the fairness of the election,’” legislative lawyers wrote.

Dropping voter ID now would be “inequitable,” lawmakers argued. It “would cause chaos and confusion.”

Biggs has struck down voter ID once for North Carolina. She might do it again. It’s unclear whether her latest decision will create uncertainty for high-profile elections this fall.

Mitch Kokai is senior political analyst for the John Locke Foundation.