North Carolina Supreme Court rehears voter ID case

RALEIGH, N.C. (WTVD) -- The North Carolina Supreme Court is revisiting a case surrounding voter ID requirements.

This is the second case the GOP said it would rehear since taking over in November.

Republican candidates won both Supreme Court races on the ballot in November, taking the court from a 4-3 Democratic majority to a 5-2 GOP majority.

In December, before the new justices took their seats, the court ruled to uphold a trial court ruling that the 2018 Voter ID law was unconstitutional and violated the rights of Black voters.

GOP attorneys are asking justices to revisit that decision.

Rehearing a case is an option for the court when someone contends justices "overlooked or misapprehended" facts or laws, but it's only happened two other times in the past 30 years, according to one justice.

"I think it's very simple," said NC GOP Chairman Michael Whatley. "The fact that you had Democrat progressive activists who did not like voter ID, who have challenged every single provision that the legislature has passed over the last 15 years, and when it was passed as a constitutional amendment, they filed a lawsuit against that.

"We were very, very surprised when the previous version of the Supreme Court took this case up during the lame duck period after the elections, and before the new court was sworn in, and we were more surprised at their tortured logic in terms of overturning a state constitutional amendment," Watley added. "So I think it is very warranted that the court is rehearing this case. And what we really want to do is make sure that the Supreme Court is going to stay in its lane and is going to interpret the laws, interpret the Constitution rather than trying to rewrite them."

During Wednesday's voter ID arguments, four of the court's five Republicans defended the ability of justices to rehear the matter or expressed skepticism about rulings from a three-judge panel that held a trial on the law or the previous edition of the Supreme Court. Democrats and their allies say this week's hearings happened solely on the partisan makeup of the court.

A chief issue on appeal is whether the judges who struck it down relied too heavily on a 2013 voter ID law and a decision three years later by a federal appeals court that struck it down on the basis of racial bias.

"Voter ID is a solution in search of a problem. Reversing this case would have a detrimental impact on North Carolinians' access to the ballot box, especially minority, poor, and elderly voters," said NC Democratic Party Chair Anderson Clayton.

Attorneys for the minority voters who challenged the 2018 law have said the trial judges were able to consider the history surrounding the 2013 law as part of the broader circumstances in determining whether legislators acted in part with discriminatory intent.

For example, the attorneys contend, dozens of legislators in 2018 who also voted in 2013 for voter ID likely knew about previous studies showing Black voters are more likely to lack qualifying photo IDs than white registered voters. But they pushed the 2018 law through anyway, said Paul Brachman, who represented the plaintiffs on Wednesday.

"They didn't want to pass a voter ID law that would have attracted enough support from their Democratic colleagues to override Governor Cooper's veto," Brachman said. "And I think that we could infer that ID law would have at a minimum been more flexible."

Peter Patterson, an attorney for the GOP legislators, said the courts wrongly presumed the 2018 law was tainted as well. The evidence affirmed the law was constitutional by providing more ID options and offering the ability for people to cast ballots even if they lack an ID by filling out a form. Patterson also pointed out the measure had support from some Democrats, including a Black senator.

"Factually, the record in this case does not support a finding of racially discriminatory intent under any potentially applicable standard of review," Patterson said. "The trial court did not afford the legislature a presumption of good faith."

Associate Justice Phil Berger Jr., a Republican, questioned whether under Brachman's viewpoint identical voter ID legislation could ever be approved.

"I think of it like fruit of the poisonous tree," Berger asked. "At what point is the taint removed such that this legislation in your argument could be passed by the legislature?" Brachman offered no bright-line answer, except that circumstantial evidence surrounding the law's passage would be reviewed.

The lack of direct evidence from a legislator stating the 2018 law was passed out of racial animus or to disenfranchise voters "does nothing to undermine the correctness of the trial court's judgment or this court's ruling," Brachman said.

Republicans in the legislature, which first passed a voter ID law in 2011 that was vetoed, say requiring identification at the polls will bolster confidence in elections, root out any voter fraud and is broadly popular. Voter ID critics say the incidence of such fraud is overblown. Thirty-five states request or require some ID at the polls, with about half asking for photo identification, according to the National Conference of State Legislatures.

Berger is the son of Republican Senate leader Phil Berger, who is a named defendant in the lawsuit. The younger Berger wrote the dissenting opinion in December. Associate Justice Anita Earls, a Democrat who wrote the majority opinion, once represented litigants challenging the 2013 law in state court.

"So help me understand when any case will be final. Because then every case, there are two sides to the argument. And the side that loses believes that we misapprehend the law and got it wrong. So where do we draw the line?" Earls asked of Patterson.

Patterson contended that the trial court shifted the burden of proof to legislators in having to show their version of a voter ID law is not racially discriminatory.

"The theory is they're (the Court) saying we're not accusing anyone of harboring, you know, animus or anything of that nature," Patterson said. "We're thinking that the Republicans want to have more Republicans be elected, and they know that African Americans disproportionately vote for Democrats. So we're going to target them and make it more likely that we're going to get the vote. But the only way that that works is that individuals are actually prevented from voting.

The findings of these facts in this record do not support a finding of racial discrimination," Patterson added."As I said, the theory of this case is partisan entrenchment. So we have evidence that the legislature enacted the lowest possible racial disparity in terms of a voter ID law. But in addition to that, the legislature made sure that every voter can vote."

Patterson noted that the plaintiffs have not identified a single voter in North Carolina who cannot vote under SB824.

"So there is no person in North Carolina that the plaintiffs have identified who according to the terms of SB 824, will not be able to vote," he argued. "And it just does not speak discriminatory intent, racially discriminatory intent to enact a voter ID law that allows everyone to vote and the availability of the free IDs during early voting is particularly important."

The 2018 ruling required photo id to vote remains voided.

This comes after the court reheard another case Tuesday centered on redistricting voting maps.

In its initial decision in February 2022, the court ruled the original maps constituted extreme partisan gerrymandering, violating the state's constitution in several different ways.

GOP lawmakers pushed back, arguing the court did not have standing to mandate new maps.

The Associated Press contributed.