Should NC lawmakers turn over their emails in voter ID case? A court will decide.
State legislators accused of passing a 2018 voter ID law for racist reasons are now fighting efforts to force them to turn over documents like emails that could show what they discussed while writing that law.
New voter ID rules were originally supposed to go into place for this year’s elections. But they were blocked during the March primaries after judges both in federal court and in state court found that lawmakers may have written the law with “racially discriminatory intent.”
Neither lawsuit is over yet, however. So it’s possible that the voter ID rules could still be put back in place by this fall’s 2020 presidential election. And the type of evidence allowed in trial will depend on what comes out of Wednesday’s hearing.
The hearing was presided over by a trio of judges from around the state — Nathaniel Poovey, Michael O’Foghludha and Vince Rozier. Poovey is a Republican; O’Foghludha and Rozier are Democrats. They didn’t issue a ruling immediately but said they would in the coming weeks.
A lawyer for the lawmakers, Pete Patterson, said that “it is very clear that as a matter of North Carolina law” that state legislators don’t have to turn over their emails unless they want to.
But a lawyer for the challengers, Jeff Loperfido, said that if the courts accept that argument, “It really sends the message to the legislators that, ‘It’s business as usual and we can write — in secret — discriminatory laws and get away with it.’”
As those lawsuits gear up for trial, the hearing that was held Wednesday could go a long way in determining what kind of evidence is or isn’t allowed. It applies to the lawsuit in state court.
Secrecy rules at the legislature
When state lawmakers wrote North Carolina’s public records laws decades ago, they not only exempted themselves from those rules but also gave themselves extra protections, called “legislative privilege.”
That allows them to refuse to testify or turn over documents in court cases, even when other people or businesses wouldn’t be able to refuse.
On Wednesday, lawyers representing GOP lawmakers on one side and the Southern Coalition for Social Justice on the other side argued over whether that “legislative privilege” is absolute, or if there are instances when it can be broken.
Patterson, the lawyer for the legislators, cited two cases from the North Carolina Court of Appeals that he said give “absolute privilege” to lawmakers, shielding them no matter what.
And even if the court disagrees and does require documents to be turned over, Patterson said, then anything that an individual lawmaker might have said or done — even a sponsor of the bill — shouldn’t be seen as reflecting the reasons other people might have had for voting on the bill.
“Whatever was in the mind of individual legislators is of limited relevance,” Patterson said.
But Loperfido, the lawyer for the Durham-based civil rights group Southern Coalition for Social Justice, said all of those arguments are wrong.
There is no absolute privilege for lawmakers giving them immunity no matter what, he said. And any comments lawmakers were making among themselves — or to the staffers in charge of researching and writing different parts of the law — are incredibly relevant, he said.
The lawsuit claims that despite what lawmakers may have said in public, the real intent of the voter ID law was to disenfranchise minority voters during the 2020 elections and beyond.
“It’s a case about the motivations of the legislators who passed the law,” he said.
Republicans have repeatedly pointed to the fact that one of the few Democrats to vote for the bill was former Sen. Joel Ford of Charlotte, who is African-American. Ford was a co-sponsor of the bill, and Patterson said he has agreed to waive his legislative privilege for this trial.
But Loperfido said that doesn’t mean much, since if only Ford waives his privilege then he won’t be able to provide any details of conversations he had with other lawmakers.
Ford had already lost his bid for reelection in 2018 when he agreed to sponsor the voter ID bill, and Loperfido said it could be enlightening to have emails from Republican lawmakers showing what went into recruiting his support.
History of voter ID, fraud
North Carolina has done more than perhaps any other state to look into voter fraud, culminating in an extensive audit of the 2016 elections.
That audit showed voter fraud is incredibly rare, it affected the outcome of no elections, and that the fraud that does exist would still have happened even if the state did have a photo ID requirement in place, except in a couple instances.
Out of 4.8 million votes cast in 2016, investigators found two cases of suspected voter impersonation.
Supporters of voter ID laws say that photo IDs are needed for plenty of mundane tasks and should be used to help stop possible voter fraud, too. Opponents of voter ID laws point to the fact that voter fraud is nearly non-existent. They say voter ID laws are actually intended to disenfranchise legitimate voters who tend to vote for Democrats but might not have an driver’s license — especially college students, poor people and minorities.
The new voter ID law being sued over now was written to replace a 2013 law that made numerous election law changes, including voter ID, after it was ruled unconstitutional in 2016.
The federal 4th Circuit Court of Appeals ruled that the 2013 law’s provisions “target African Americans with almost surgical precision.”
For more North Carolina government and politics news, listen to the Domecast politics podcast from The News & Observer and the NC Insider. You can find it on Megaphone, Apple Podcasts, iHeartRadio, Stitcher or wherever you get your podcasts.
This story was originally published May 13, 2020 at 3:12 PM.
