If a bill to move up the date of North Carolina’s presidential primary wins approval from both houses and the governor this legislative session, North Carolina voters could go to the polls as soon as March 15 in 2016.
As that scheduling uncertainty hangs over the state, so does the constitutionality of a voter ID requirement set to go into effect in 2016.
On Monday morning, a Wake County judge is scheduled to hold a hearing on whether to dismiss a challenge in state court to the 2013 change in election law that requires voters to show one of seven state-approved forms of photo identification before casting a ballot.
Attorneys for state lawmakers and the governor contend that a legislative amendment to the requirement earlier this summer – offering voters without an approved ID the option of using a provisional ballot – made the lawsuit moot.
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Attorneys for the challengers disagree.
In a court document filed late last week, the challengers contend that the state constitutional questions posed before the lawmakers added the provisional ballot option remain. The so-called “reasonable impediment” amendment, they argue, raises additional legal questions, and if the judge is considering “mootness” as a reason for dismissal, the challengers are seeking a temporary halt on the court proceedings to give them time to amend their lawsuit and view the practical effects of the ID rule in the N.C. presidential primary.
The proceedings scheduled for Monday in front of Wake County Superior Court Judge Mike Morgan are part of a lawsuit filed in 2013 by the League of Women Voters of North Carolina, the North Carolina A. Philip Randolph Institute and five women voters.
They argue that lawmakers overstepped the bounds of the state constitution when they added the ID requirement.
They contend that the first article of the N.C. Constitution governs voter qualifications. When the article was adopted in 1868, when North Carolina was under military rule in the post-Civil War Reconstruction era, the qualifications set out were minimal – a person must be at least 18, a North Carolina resident and not a felon, unless rights of citizenship had been restored.
Though the N.C. Constitution explicitly allows the General Assembly to enact laws governing the registration of voters, the challengers contend, lawmakers cannot change voter qualifications without North Carolina voters themselves weighing in on the matter.
Critics of the state voter ID requirement have taken a two-prong approach to challenging the change in election law. They have filed lawsuits in federal and state court.
At issue in the lawsuit that will be considered on Monday by Judge Morgan is whether requiring IDs at the polls should be considered a “qualification” for voting or an extension of the registration process, which lawmakers have the authority to tweak.
As they did in federal court, attorneys for the state argue that the legislative change to the ID requirement on the eve of the federal trial renders the arguments put forward in state court moot, too.
In the federal court cases, the attorneys for the challengers plan to present a status report to U.S. District Judge Thomas Schroeder about how and if they plan to continue on the federal constitutional questions of the ID requirement.
At the federal level, the challengers contend requiring voters to present IDs has a discriminatory impact on African-American, Hispanic and young voters.
Questions of racial disparities also have been raised in the state court case.
“The amended law does not address the racial disparities for possession rates of acceptable photo IDs, the discriminatory treatment of African-American voters in the process of voting and obtaining an ID, and the burden North Carolina voters will face at the polls with the imposition of a photo ID requirement,” the challengers said in the state court document filed last week. Because of that, they contend, their disenfranchisement arguments remain valid.
Advocates of the ID requirement contend it prevents fraud, though few cases have been prosecuted. They also argue that an ID is required for many things in modern society and that acquiring one is not a burden nor any more difficult for one race than another.
Critics argue otherwise.
But the crux of the hearing in Wake County Superior Court on Monday is expected to be about whether the lawsuit filed by the League of Women Voters, Randolph Institute and several voters will continue or be dismissed.
“Defendants should not have a free pass to escape potential liability because of a half-hearted, last-minute revision to the law that they show no inclination to fully or properly implement…,” the challengers said in their response to the state’s request for dismissal.