- S. District Court Judge Loretta Biggs issued a preliminary injunction against North Carolina’s voter ID law based on an unreasonable standard.
- Attorney General Josh Stein will likely succeed in his appeal of Biggs’ injunction and North Carolina will have voter ID for the general election in November.
Loretta Biggs, a federal judge in North Carolina’s middle district, issued a preliminary injunction on New Year’s Eve in NC NAACP v. Cooper. The injunction means that North Carolina will not be able to enforce the voter ID law it passed over Gov. Roy Cooper’s veto in 2018 during the primary on March 3.
A judge’s animus toward the NC General Assembly
An interesting part of Biggs’ argument is that the current ID law is unconstitutional since many of the legislators who voted for it also voted for an earlier law that federal judges had stuck down (page 17):
It therefore seems “eminently reasonable to make the State bear the risk of nonpersuasion with respect to intent” when the very same people who passed the old, unconstitutional law passed the new.
This argument is important because Biggs could not dig up persuasive evidence that there was any discriminatory intent behind the passage of SB 824 itself, meaning that she had to create that intent in order to issue a preliminary injunction. Biggs makes that jump even though she had to admit later in her injunction that the NC General Assembly was seeking to follow procedures approved by earlier court cases when writing SB 824 (pages 43-44):
The argument appears to be that, rather than simply re-enacting H.B. 589 to fulfill the voter-ID amendment’s mandate, the legislature chose instead to assiduously follow pre-approved templates, thereby distancing itself from any lingering discriminatory motives.
Biggs then noted the similarity of North Carolina’s ID law to Virginia and South Carolina ID laws that had already been approved by federal courts.
So, Biggs was confronted with legal language that had already been ruled constitutional in other federal court cases. That language was part of a bill implementing a voter ID requirement to the NC Constitution that voters approved by a comfortable margin. In addition, she was forced to acknowledge on pages 47-53 that the plaintiffs are not likely to succeed in their argument that North Carolina’s voter ID law violates Section 2 of the Voting Rights Act since federal courts have already approved similar laws from Virginia and South Carolina.
Biggs attempts to get around that by claiming “evidence that discrimination was a motivating factor in this case means that any similarities between S.B. 824 and the voter ID laws of South Carolina and Virginia are of limited value” (page 44). Her evidence was that most Democrats in the General Assembly opposed the passage of SB 824. Biggs conveniently ignores that the ID law was subsequently liberalized in large bipartisan votes in HB 646 earlier last year.
(NOTE: I opposed HB 646 because I believe it unnecessarily weakens the verification process for student and government worker IDs.)
In short, we are left with the simple fact that Biggs would have found any voter ID bill passed by North Carolina’s General Assembly discriminatory, regardless of the intent of the majority of legislators or the language of the bill itself. That is an unreasonable standard that will not survive appeal.
Attorney General Josh Stein will appeal, just not yet
The preliminary injunction left Democratic Attorney General Josh Stein in a bit of a bind since part of his job is defending state laws in federal court. While the appeal of Biggs’ injunction will likely give him an easy win in a high-profile case (something attorneys general tend to covet), Stein also appears to worry about alienating his political base ahead of the 2020 election.
Stein has attempted to resolve the dilemma by deciding to appeal Biggs’ injunction, but not in time for voter ID to be implemented in the March 3 primary. The state Department of Justice announced the decision in a terse media release that avoided mentioning Stein by name and lacked the gratuitous quotes and pictures of Stein that often accompany such releases (as evidenced by the releases immediately before and after the voter ID appeal release).
Desired or not, Stein will likely get his high-profile win on the voter ID appeal and North Carolina will have voter ID in time for the general election in November.
UPDATE: I was wrong. With a North Carolina appeals court also injoining the ID law and no movement from Stein on the appeal, it looks like we will not have voter ID this year.