In a decision that did not get the attention it deserved, the newly reconstituted North Carolina Supreme Court recently reinstated, as the court said, one of “least restrictive voter identification laws in the United States.”
Liberal judges on that court—two of whom are no longer there after losing their 2022 reelection attempts—had previously thrown out the law, erroneously claiming that it was passed with discriminatory intent and that it violated the equal protection clause of the North Carolina Constitution.
In Holmes v. Harper, on April 28, the new court withdrew that prior opinion and dismissed the lawsuit filed by groups and individuals challenging the law after a request for rehearing was filed by the state Legislature.
The decision of the voters to get rid of two of the judges who essentially said that voters were not smart enough to comply with a simple voter ID requirement shows just how much smarter the voters are than those former judges.
The 2022 election changed the majority on the court from four liberals and three conservatives to five conservatives and two liberals. It was the five conservatives who reversed the prior 4-to-3 decision and reinstated the ID requirement.
Keep in mind that in its prior decision, the liberal judges were not only overruling the state Legislature, but the decision of more than 2 million North Carolina voters who approved a referendum in 2018 amending the state constitution to require “photographic identification before voting” and directing the Legislature to implement this amendment through legislation. The Legislature did exactly that in December 2018, overriding the ill-considered veto of Gov. Roy Cooper, a Democrat.
The new law included an extensive list of acceptable IDs, including state driver’s licenses, student IDs, passports, and military and tribal IDs. Moreover, the state was required to issue free IDs to anyone who didn’t already have one. Additionally, there were, as the court said in its new ruling, “a host of exceptions,” such as for any individuals with religious objections. Finally, a registered voter would still be able to cast a ballot if he or she asserted that “a reasonable impediment” prevented him or her from obtaining an ID.
The court was very critical of the prior decision, saying it was an example of a “partisan legislative disagreement” that “spilled out” into the courts. The court asserted it would not allow that and would stand “as a bulwark against that spillover, so that even in the most divisive cases, we reassure the public that our state’s courts follow the law, not the political winds of the day.”
Following the liberal political winds that claim all voter ID laws amount to discriminatory voter suppression is exactly what the prior court did. The prior court did that even in the face of overwhelming, long-term evidence—including voter turnout in states with ID requirements—that voter ID laws do not prevent anyone from voting and, in fact, may help increase turnout by improving public confidence in the integrity of elections.
As the court stated in its new ruling, the North Carolina law does not impose any substantial burden on voters and is “more protective of the right to vote than other states’ voter ID laws that courts have approved.” The court went into great detail to explain why the law does not violate any provisions of the state constitution.
The state Supreme Court also approvingly cited the findings of the U.S. Court of Appeals for the 4th Circuit, which rejected a challenge to this very same law in a federal lawsuit filed against the state claiming a similar violation of the equal protection clause of the U.S. Constitution because, the challengers claimed, it was enacted with a discriminatory intent.
The 4th Circuit concluded that the evidence did not establish that the law was enacted with discriminatory intent, overruling a federal district court because of “fundamental legal errors that permeate[d]” the district court’s decision.
Yet, in its prior ruling, the state Supreme Court had ignored that finding. Such fundamental factual and legal errors permeated its judgment, too.
The state Supreme Court criticized the prior ruling’s reliance on a past history of racial discrimination in North Carolina, rather than any current or recent history of discrimination. The court also highlighted the lack of evidence of discrimination with regard to this statute or the referendum approved by voters, which is required in order to “strike down an otherwise lawful” legislative act.
The state court cited the U.S. Supreme Court’s admonition that “past discrimination cannot, in the manner of original sin, condemn government action that is not itself unlawful.”
The court also dismissed the argument that statements by legislators criticizing an adverse court decision and vowing to “continue the fight” for voter ID was evidence that the legislators had acted with discriminatory intent. It once again cited the 4th Circuit’s refusal to sanction such a finding, saying that “decrying a court opinion holding that you acted improperly in the past is not evidence that you have acted improperly again.”
The error-filled prior ruling by the state Supreme Court was also based on “second-guessing the contours of the legislative process,” something a court is not supposed to do since it violates the principle of separation of powers.
Not only did the challengers to the voter ID law fail “to prove beyond a reasonable doubt” that the law “was enacted with discriminatory intent,” the court concluded that they didn’t even prove that it “actually produces a meaningful disparate impact along racial lines.”
The gravamen of the dissent filed by the two remaining liberal judges on the court was that the majority opinion that voided the judicial activism of the prior decision was itself “judicial activism.” But pulling a court out of partisan, political gamesmanship and back into its role of applying the law—rather than making it—is not judicial activism.
In its conclusion, the state Supreme Court noted that “the people of North Carolina overwhelmingly support voter identification and other efforts to promote greater integrity and confidence in our elections.”
However, in an obvious reference to the prior behavior of the state court, “subjective tests and judicial sleight of hand have systematically thwarted the will of the people and the intent of the legislature.”
The court warned that the judicial system does not exist “for the vindication of political interests, and judges exceed constitutional boundaries when they act as a superlegislature.”
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