NC Supreme Court hears voter ID case

The state Supreme Court heard arguments Monday in an appeal of a lower court decision from last year that struck down a state law requiring a photo ID to vote.

The Republican-led legislature passed the law in a 2018 lame duck session before they lost their supermajority, and overturned Democratic Gov. Roy Cooper’s veto.

In a 2-1 decision, a panel of Superior Court judges said last year that law put a greater burden on African American voters and was motivated, at least in part, by an unconstitutional intent to target them.

This isn’t the first time that North Carolina Republicans have passed a law requiring voters show photo ID at the polls.

A sweeping 2013 elections law included a voter photo ID requirement that was in place for the 2016 primary before the 4th Circuit Court of Appeals invalidated it.  In its July 2016 opinion, the federal appeals court concluded the 2013 law was discriminatory and that legislators crafted it to disallow the types of alternative IDs most used by African Americans.

The 2013 law played a role in last year’s trial on the 2018 law, as expert witnesses and the judges in their opinions compared the old law to the new.

“What weight should be given to legislative history in terms of looking at discriminatory intent?” Supreme Court Justice Mike Morgan asked Pete Patterson, the lawyer representing Republican legislators.

Patterson said the Superior Court majority’s decision “presumed bad faith at every turn.”

The new voter ID law was more protective of voters than the old law, Patterson said, and included a “sweeping reasonable impediment provision.” That process would have allowed people without IDs to cast provisional ballots if they signed affidavits saying why they didn’t have one.

However, an expert told the Superior Court judges that African American voters were less likely to have the types of photo ID needed to vote, more likely to have to use the “reasonable impediment” process. The trial court opinion said that African Americans would be more likely to have to obtain an ID needed to vote and would have a harder time doing so because of the history of racial discrimination.

Jeff Loperfido, senior counsel for voting rights at the Southern Coalition for Social Justice, argued that the legislative history and historical background are important.

“The harm here under an equal protection challenge is that voters are being treated differently and that the fundamental right to vote for certain individuals is being burdened in a way that is falling disproportionately on them,” Loperfido said.

Voter impersonation that Republicans contend the ID law would combat is rare. The trial court said it is “almost nonexistent” in North Carolina.

“There is certainly insufficient evidence to conclude that the desire to combat voter fraud was an actual motivation of the legislature in passing” the bill, the majority opinion said.

Here’s how much NC Republicans’ redistricting lawyers cost taxpayers

Thomas Farr

About $2.9 million in taxpayer money has gone to law firms Republican legislators hired to do redistricting work for them in the last round of map-drawing, work that included representing GOP leaders in redistricting lawsuits.

Invoices from law firms for redistricting work date from late November 2021 to July 2022, according to an accounting from the Legislative Services Office that NC Policy Watch obtained through a public records request. The payments over those months went to two law firms, Baker & Hostetler and Nelson Mullins Riley & Scarborough. Phillip Strach is partner at Nelson Mullins and often takes the lead in oral arguments in North Carolina redistricting cases. Thomas Farr is another partner with the firm who has represented North Carolina Republicans though several rounds of redistricting litigation since at least 2001.

The list of invoices does not include any from Cooper & Kirk, the Washington law firm representing legislators before the U.S. Supreme Court in Moore vs. Harper. In that pivotal case, Republican legislators are seeking to bar state courts from hearing cases concerning congressional redistricting and other matters related to elections for federal offices. The U.S. Supreme Court is expected to hear oral arguments in that case late this year or early next year.

Voting rights groups and voters backed by the National Redistricting Foundation sued Republican legislators over congressional and legislative districts the Republican-led General Assembly approved last year.

The legislature must redraw election maps after each census to balance populations in districts. North Carolina’s population growth resulted in the state gaining a 14th congressional seat.

North Carolina has a decades-long history of legal battles over plans for election districts, and this year’s redistricting fit that pattern.

The state Supreme Court in February struck down the congressional and legislative maps, saying they were partisan gerrymanders that violated the state constitution. The court’s four Democrats ordered the maps thrown out, while its three Republicans dissented.

After that court loss, the legislature redrew the state House, state Senate, and congressional maps. A three-judge panel accepted the redrawn maps for state House and Senate, but rejected the legislature’s second attempt at a congressional plan. The three Superior Court judges drew the congressional districts with the help of three special masters. That court-drawn map is in place for the 2022 election.

Lawyers on both sides of the case filed motions at every step.

Lawmakers aren’t done with redistricting. North Carolina’s congressional map is good for one election cycle. The legislature intends to redraw congressional districts in time for the 2024 election.

Some of the same lawyers North Carolina Republicans hired also worked on redistricting in Ohio and Louisiana. Baker & Hostetler worked with Louisiana Republicans this year, according to the Louisiana Illuminator. Strach and Farr helped represent the Louisiana secretary of state in a racial gerrymandering case that reached the U.S. Supreme Court this year.

Republican legislative leaders in Ohio hired Strach and Farr to represent them in court challenges and to advise the state’s Legislative Task Force on Redistricting, the Ohio Capital Journal reported.

A shortage in voter registration forms frustrates NC nonprofits

The state does not have enough updated voter registration forms to distribute to nonprofit organizations that run registration drives, local elections offices, and other locations as the election season enters its crucial final weeks.

(Photo by Jessica McGowan/Getty Images)

State agency spokesmen pin the shortage on supply chain problems that make it difficult for the state prisons’ business operation to find paper. Correction Enterprises prints voter registration application forms for the state Board of Elections.

Voter registration forms had to be updated this summer to add the Green Party as an option for party affiliation and to change the “attestation” regarding felony convictions. A panel of state Appeals Court judges said in late July said that people on probation, parole, or post-release supervision for felony convictions can vote.

The outdated version of the voter registration application requires people sign a statement under penalty of perjury saying they are not on probation or parole for a felony. The updated registration application drops that language and replaces it with a statement saying the person signing is not in prison or jail for a felony.

Nonprofits that register voters have been frustrated by the shortage of forms  they order in bulk from the state Board of Elections.

Jimmy Patel-Nguyen, communications director for North Carolina Asian Americans Together, said the group has constantly checked with the state elections office about updated forms only to be told that there aren’t any available.

The state board said in a press release that the old forms were okay to use, but voter registration groups worried about having people sign a form where they’re asked to say something that isn’t true.

“This has been extremely frustrating,” said Kate Fellman, executive director of You Can Vote. The nonprofit has an unfilled order for thousands of forms. To work around the shortage, You Can Vote printed updated forms from the state Board of Elections website.

“We didn’t want to use the old forms,” she said.

Joselle Torres, Democracy North Carolina communications director, said getting updated forms is a priority. Nonprofits that register voters also want an official statement saying the old form is okay so people can use it with confidence, Torres said.

Board of Elections spokesman Patrick Gannon said in an email that it ordered 545,000 forms and is expecting to receive 115,000 today. Those will be distributed right away, he wrote.

Brad Deen, a spokesman for the state Department of Public Safety, said in an email Friday they were able to find paper on Sept. 20 that Correction Enterprises can use to print the rest of the Board of Elections’ order. That paper “is in the state purchasing process,” Deen wrote. When the paper is delivered, it will take four days to print and cut the forms to size.

“We understand the importance of the forms and their role in ensuring a smooth voting and election process,” Deen wrote.  “Toward that end, Correction Enterprises will expedite printing and make partial deliveries as soon as completed forms are available.”

Oct. 14 is the deadline to register to vote in the Nov. 8 election. Applications are available to download from the Board of Elections website for people who wish to register by mail. State DMV customers – people who have a Social Security number and a North Carolina driver’s license or a DMV-issued ID number can register to vote or update their addresses online.

People who miss the Oct. 14 deadline can still register if they go to vote in person during the early voting period, which starts Oct. 20 and ends Nov. 5.

Fellman said the registration form shortage has made her organization’s work harder. Sometimes local elections offices will have the updated forms, she said, but not in the quantities You Can Vote needs.

“We’re not registering fewer people, but it makes our job harder and more expensive,” she said. “Smaller groups that do voter registration, they don’t have the budget to print their own forms.”

Robert Dawkins, political director for Action NC, said they went ahead and used the old forms to register about 3,200 people after being told by the Mecklenburg County elections board that it wouldn’t be a problem.

“People cannot be disenfranchised because people cannot get their forms together,” Dawkins said.

“Do unto others as we did unto ourselves” says NC Democratic leader in favor of tax forgiveness of student loan debt

State Sen. Dan Blue of Raleigh, the Senate’s Democratic leader, said he wants the state to waive income tax on forgiven student loan debt, countering the position of  Republican Senate leader Phil Berger.

Berger told reporters Tuesday that the state would not waive income taxes on forgiven student loan debt, WUNC reported.

North Carolina is one of a handful of states that will tax student debt relief, according to the Washington Post.

An estimated 1.19 million borrowers in North Carolina will be eligible for student debt relief, according to a White House estimate released Tuesday.

President Joe Biden announced last month that borrowers with federal student loans would have up to $10,000 in debts canceled and borrowers with Pell Grants for low-income families would be eligible for up to $20,000 in debt cancellations. To be eligible, borrowers must have an annual income of less than $125,000 for an individual.

Gov. Roy Cooper last week called on Republicans to waive state income taxes on the forgiven student loan debt.

Last year, the legislature voted to waive state taxes on businesses’ forgiven Paycheck Protection Plan loans.  Nearly 260,000 federal PPP loans went to businesses in the state, according to ProPublica. Businesses owned by legislators benefited from the law they passed exempting those forgiven loans from state taxes.

Blue said it was right to waive taxes on forgiven business loans, and the legislature should do the same for forgiven student loans.

“It bothers me that we still want to burden folks,” Blue said.  “We ought to be able to do unto others as we did unto ourselves,” he said, adding that he did not receive a PPP loan.

In a wide-ranging interview with reporters Wednesday, Blue and House Democratic leader Rep. Robert Reives said they were frustrated that no agreement to expand Medicaid has been reached.

Republican legislators are considering expanding Medicaid, which would make an estimated 600,000 low-income adults eligible for health insurance. The Senate bundled Medicaid expansion with changes to Certificate of Need laws in the bill it passed this year. Changes to Certificate of Needs Laws are a long-time goal for GOP senators.

North Carolina is one of a dozen states that has not expanded Medicaid.

The North Carolina Healthcare Association, which represents hospitals, is fighting Certificate of Need changes.  These laws require health care providers to gain state approval before offering new services.

The Healthcare Association made an offer last week that Berger told WUNC was “not a serious proposal.”

Reives called for face-to-face negotiations that include Democratic legislators.

“We want to get it done,” he said. “Nothing works better than deadlines and people having to face each other.”


NC Republican leaders want a three-judge panel for the next step in a voter ID case, not the judge who initially decided against them

North Carolina’s Republican legislative leaders want a three-judge panel to determine whether the state’s voter ID constitutional amendment was legitimately on the ballot.

The state Supreme Court’s Democratic majority in a 4-3 decision last month said that proposed constitutional amendments aren’t automatically valid if legislators who voted to put the questions on the ballot were elected from unlawful districts. The U.S. Supreme Court in 2017 affirmed that 28 legislative districts drawn in 2011 were racial gerrymanders. Legislators elected from these districts voted in 2018 to put constitutional amendments on the ballot.

The state Supreme Court last month sent the case concerning the constitutional amendments back to the trial court to answer more questions.

Legislative Republicans want a three-judge panel to answer those questions about the amendments, not the Superior Court judge who initially ruled against them.

The state NAACP challenged the voter ID amendment and an amendment capping the state income tax rate. As the case made its way through the state court system, the NAACP won in trial court and but lost 2-1 in state Appeals Court.

The Supreme Court agreed with the core of the NAACP argument, but sent the case back to the trial court to determine, using a three-prong test, whether the voter ID amendment and the amendment capping the state income tax were properly put to voters in 2018.

The Supreme Court told the trial court to consider whether the proposed amendments immunize legislators from democratic accountability; perpetuate the ongoing exclusion of a category of voters from the political process, or intentionally discriminate against a particular category of citizens who were also discriminated against in the redistricting process that resulted in the unconstitutionally gerrymandered districts, Policy Watch has reported.

If Republicans are successful in getting a three-judge panel to apply the tests, they would be able to side-step Superior Court Judge Bryan Collins, who initially decided in the NAACP’s favor.

A lawyer for Senate leader Phil Berger and House Speaker Tim Moore said in the court filing that a three-judge panel is the proper forum for considering the questions the Supreme Court wants answered.

Lawyers for the state NAACP said a court filing that the Republican request is frivolous, and if the Supreme Court wanted a three-judge panel involved, it would have said so.

“The Court made clear that the case be remanded back to the Trial Court that originally heard the matter, as is the normal practice,” the state NAACP’s lawyers wrote.

Chief Justice Paul Newby, a Republican who dissented from the Democratic majority’s decision, appoints three-judge panels.